IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WP(C).No. 17366 of 2006(P) ------------------------------------ PETITIONER(S): ----------------------- A. SASEENDRAN, S/O. LATE GOPALAN, AGED 41 YEARS, JAIL WARDER, SUB JAIL, KOYILANDY, AREEKKARA HOUSE, CHEEKKONNU WEST, KAKKATTIL, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.D.BABU RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE (PRISONS), JAIL HEAD QUARTERS, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17366 of 2006 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the order No.E2-848/2000 of Addl.Director General of Police (Prisons) dtd.19.1.2000. Ext.P2 :- Copy of the order No.44/2000 of Superintendent, Sub Jail, Thalassery dated 25.1.2000. Ext.P3 :- Copy of the order No.130/2000 dated 29.7.2000 of the Superintendent, Central Prison, Kannur. Ext.P4 :- Copy of the charge memo with statement of allegations dated 24.2.2000 issued by Addl.Director General of Police (Prinson). Ext.P5 :- Copy of statement of defence submitted by petitioner dated 16.3.2000. Ext.P6 :- Copy of order No.E2 848/2000 dated 13.4.2000 of the Addl.Director of Police (Prisons). Ext.P7 :- Copy of statement of defence submitted by petitioner to Enquiry officer dated 3.10.2000. Ext.P8 :- Copy of the Enquiry Report dated 3.11.2000 to the Addl.Director General of Police (Prisons) from the Enquiry Officer. Ext.P9 :- Copy of Show Cause Notice dated 28.11.2000 issued to the petitioner from the Addl.Director General of Police (Prisons). Ext.P10 :- Copy of the Reply dated 25.1.2000 by the petitioner. Ext.P11 :- Copy of the order dated 19.2.2001 of the Addl.Director General of Police (Prisons). Ext.P12 :- Copy of the Memorandum of Appeal dated 26.3.2001 addressed to Home Secretary, from the petitioner. Ext.P13 :- Copy of the order dated 1.6.2001 of the Addl.Director General of Police (Prisons). Ext.P14 :- Copy of G.O.(Rt)No.4007/2001/Home dated 28.11.2001. Ext.P15 :- Copy of Govt.letter No.70593/B3/2001/Home dated 29.5.2002, of the Home Department. Respondent's Exhibits :- NIL //True Copy// P.A. To Judge ANTONY DOMINIC, J. ~~~~~~~~~~~~~~~ W.P.(C) No.17366 of 2006 ~~~~~~~~~~~~~~~~~~ Dated this the 27th day of July 2010 J U D G M E N T Petitioner entered Government Service in the Jail Department as Warder. 2. During 1999, petitioner was posted in the Sub Jail, Thalassery. On 19.12.1999 he was on 'Block Duty' and on 20.12.1999 at about 6 A.M. he was relieved. It would appear that his substitute did not report for duty and therefore, the petitioner was directed to take charge of the jail inmates who are deployed for kitchen duty. On the allegation that this the direction of the Head Warder was disobeyed by the petitioner, in contemplation of the disciplinary action, Ext.P1 order was issued placing the petitioner under suspension. Subsequently without prejudice to the right of the respondents to continue the W.P.(C) No.17366 of 2010 -: 2 :- disciplinary action, he was reinstated in service by Ext.P3 order. 3. Ext.P4 memo of charges was issued to the petitioner on the allegation that he disobeyed the orders of the superior authorities. Statement of allegation attached to Ext.P4 shows that on 20.12.1999 petitioner was asked to take charge of the inmates of the jail who were deployed for kitchen duty and that the petitioner did not comply with the said direction. It is stated that there was none to supervise them which lead to the escape of one of the inmates. Petitioner submitted Ext.P5 explanation which was not accepted by the Disciplinary Authority. Thereafter by Ext.P6 order, an Enquiry Officer was appointed and Ext.P7 is the defence statement submitted by the petitioner. Enquiry was conducted and Ext.P8 is the report where it has been found that the petitioner had committed misconduct alleged against him. 4. Disciplinary Authority accepted the findings of the Enquiry Officer and issued Ext.P9 show cause notice, W.P.(C) No.17366 of 2010 -: 3 :- calling upon the petitioner to show cause why he shall not be imposed punishment of barring two increments with cumulative effect. On receipt of the notice petitioner submitted Ext.P10 reply. Considering the entire matter the Disciplinary Authority issued Ext.P11 order, confirming the punishment proposed by Ext.P9 show cause notice. Subsequently, by Ext.P13, the period of suspension was ordered to be regularized. He filed Ext.P12 appeal before the government and that was rejected by Ext.P14 order. Representation made for review of the order was also rejected by the government. It is in these circumstances, challenging the aforesaid proceedings, the writ petition is filed. 5. Contentions raised by the learned counsel for the petitioner and that the findings of the Enquiry Officer are perverse in as much as, impact of the Rule 82 and 175 of the Prison Rules, 1958 were not considered, that the orders passed by the Disciplinary Authority and the Appellate Authority reflect total non application of mind and that the W.P.(C) No.17366 of 2010 -: 4 :- enquiry was held without complying the procedure laid in the rules. It is also argued that he was orally asked to take charge of the inmates deployed for kitchen duty and that therefore the order itself was illegal. It is contended that if he did not comply with such an order, his act cannot be described as a misconduct warranting disciplinary action against him. 6. I have considered the submissions made. As already seen that allegation against the petitioner is that he refused to take charge of the prisoners deployed for kitchen duty on 20.12.1999 as ordered by his Superior Officer. According to the respondents as a result of his refusal, there was none to supervise the prisoners and that lead to escape of one of them. Irrespective of the technicalities, such as compliance with the Rule 82 and 175, when the Superior Authority of the petitioner had ordered him to take charge of the prisoners deployed for kitchen duty, particularly in a circumstance where the substitute did not report for duty, in my view the petitioner ought to have W.P.(C) No.17366 of 2010 -: 5 :- complied with the direction instead of refusing to do so on the technical ground that written order was not issued. Therefore this act of the petitioner certainly is a misconduct and it is in that light one has to look at the memo of charge and findings of the Enquiry Officer. Petitioner has no valid or specific grievance about the procedure adopted either by the Disciplinary Authority or the Enquiry Officer. A reading of the report of the Enquiry Officer, a copy of which is Ext.P8 shows that on analysis of the evidence available, the Enquiry Officer came to the finding that misconduct was proved to have been committed by the petitioner. 7. It was accepting the aforesaid findings of the Enquiry Officer that the Disciplinary Authority issued Ext.P9 show cause notice to the petitioner. It was argued that Ext.P9 show cause notice does not reflect application of mind by the Disciplinary Authority. In my view this argument also is devoid of merit. If the findings of the Enquiry Officer are accepted, Disciplinary Authority is not expected to write a detailed order. Ext.P9 shows that W.P.(C) No.17366 of 2010 -: 6 :- Disciplinary Authority has perused the enquiry report and as decided to agree with the findings of the Enquiry Officer. Ext.P9 therefore shows application of mind. Petitioner submitted his reply and it was thereafter the punishment was imposed. 8. In so far as punishment proposed is concerned, the question is whether the punishment is disproportionate as compared to the gravity of the misconduct proved against the petitioner. While appreciating this contention of a delinquent, one cannot ignore the responsibilities that the delinquent owes to department. The petitioner is a Warder in a Jail whose duty was to supervise inmates of the prison. Petitioner refused to do that, as a result of which one of the prisoners escaped from the prison. This is certainly a misconduct which cannot be nothing less than grave. If so punishment of barring two increments with cumulative effect cannot said to be disproportionate as compared to the gravity of misconduct. Therefore I am not persuaded to think that for any of the reasons urged by the learned W.P.(C) No.17366 of 2010 -: 7 :- counsel for the petitioner, the findings of the Enquiry Officer and the decision of the Disciplinary Authority either accepting upon or imposing punishment are vitiated warranting interference in a proceeding under Article 226 of the Constitution of India. This is all the more so in the reason that the appellate authority also has, on a consideration of the entire matter, agreed with the Disciplinary Authority by rejecting Ext.P12 appeal as per Ext.P14 order. Therefore I do not find any merit in this writ petition. Writ petition fails and accordingly dismissed. ANTONY DOMINIC, JUDGE. Jvt