IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 19TH DAY OF DECEMBER 2011/28THAGRAHAYANA 1933 WPC.No. 27149 of 2011 (P) ------------------------- PETITIONER(S): ------------- 1. RAJKUMAR, ASSISTANT JAILOR GRADE-II, CENTRAL PRISON, THIRUVANANTHAPURAM. 2. G. DEVARAJAN, HEAD WARDER, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): -------------- 1. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, (PRISONS), THIRUVANANTHAPURAM-695012. 2. THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM - 695 012. 3. STATE OF KERALA, REPRESENTED BY SECRETARY DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. BY SENIOR GOVERNMENT PLEADER SRI.E.M.ABDULKHADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK WPC.No. 27149 of 2011 (P) -------------------------- APPENDIX --------- PETITIONER(S) EXHIBITS ---------------------- EXHIBIT-P1- TRUE COPY OF THE ORDER NO. ADGP CAMP 49/2011 DATED 21/09/2011 OF THE IST RESPONDENT. RESPONDENTS' EXHIBITS : NIL ---------------------- / TRUE COPY / P.A. TO JUDGE VK K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 27149 OF 2011 ----------------------------------------------------------- Dated this the 19th December, 2011. JUDGMENT The first petitioner was working as an Assistant Jailor Gr.II at the Central Prison, Thiruvananthapuram. The second petitioner was working as a Head Warder at the Central Prison. On 21-9-2011 one Chandralal @ Lalu, S/o. Chandran, Convict No:4432 escaped from the Central Prison, Thiruvananthapuram. The convict who had escaped along with eight others had been taken out of the jail and were assigned to do various maintenance works like plumbing, masonry, cleaning, painting etc of the residential quarters of one Shri. Jayasankar, Warder, Central Prison. Shri. Jayasankar was in charge and direct control of the gang of prisoners who were doing such work. It was while doing the said maintenance work that the convict escaped. Pursuant to the escape of the prisoner, the petitioners were placed under suspension as per Ext.P1 order issued by the first respondent. 2. According to the petitioners, the first petitioner had not attended duty on 21-9-2011 and the second petitioner was attending to other supervisory duties in the prison premises, after WPC 27149/2011 2 returning from the residential quarters of the warder Shri. Jayasankar. However, as per Ext.P1 order of suspension, the petitioners have been placed under suspension while no action has been taken against Shri. Jayasankar. Since the petitioners were not directly responsible for the prisoners at any point of time, it is contended that their suspension is absolutely without any basis. More so when the person who was in direct control of the prisoners has been left untouched. The counsel for the petitioners submits that Ext.P1 has been issued without any proper application of mind and is vitiated by arbitrariness. Therefore, the petitioners seek the issue of appropriate orders setting aside Ext.P1. 3. A counter affidavit has been filed on behalf of the first respondent. It is submitted by the respondent that the first petitioner being an Assistant Jailor Gr.II was the person who was responsible, in terms of an order dated 6-7-2011 referred to therein, for the detention of the prisoners. The second petitioner, the Head Warder was suspended for the laxity that is evident on his part. According to the primary enquiries, it has been shown that the first petitioner had been absent from duty without proper permission and acknowledgement from the higher authorities. Therefore, he was placed under suspension. The first respondent WPC 27149/2011 3 further goes on to state that there have been escape of convicts from the Central jail during the past three years. Though fifty prisoners had escaped, only 17 were recaptured. Some of the escapes have also been with the connivance of the staff. It is the case of the first respondent that the petitioners being the superior officers are the persons responsible for the safety of the prisoners and therefore they are the persons responsible for the lapses that led to the escape of the prisoners. For the above reason, it is contended that there are no grounds to interfere with the order of suspension, Ext.P1. 4. I have heard the counsel for the contesting parties and have considered the rival contentions anxiously. 5. It is not in dispute that there was an escape of a prisoner from the Central prison, Thiruvananthapuram on 21-9-2011. A gang of prisoners had been taken to the official quarters of one warder, Shri. Jayasanker for attending to various maintenance works of the quarters. The relevant averments are contained in paragraph 6 of the counter affidavit which reads as follows:- “In this particular case the Head warder signed the register that he is taking over the gang of prisoners. Then he went home without attending the work. The Assistant Jailor, the petitioner, did not prepare the duty WPC 27149/2011 4 register on the day before, which is delinquency from him. On the day when the prisoner escaped (21-9-2011) the petitioner is on unauthorized absence. If he wants to take leave or availing off he should obtain permission in writing from the Superintendent of Central Prison, Thiruvananthapuram. Without prior permission the petitioner was absent on duty on that day. The only person who did the duty is the warder. After the prisoner ran away, he brought the other 9 prisoners back to the jail safely. The warder have a reputation for hard work and is known for sincerity and honesty. Hence he was not suspended. The Head warder who showed laxity in duty and the Assistant Jailor who did not do his duty and was on unauthorized absence were placed under suspension. This suspension of the Assistant Jailor had a salutary effect. After that no more escapes happened in the jails in Kerala.” 6. Therefore, according to the first respondent, the second petitioner had signed the register taking over the gang of prisoners. Consequently, it cannot be disputed that it was his responsibility and duty to have ensured that the prisoners were safely brought back to the jail. However, one of the prisoners admittedly escaped. The allegation in the counter affidavit is that he had gone home without attending the work. The statement in the writ petition is that he had gone to the residential quarters of WPC 27149/2011 5 the warder and on being satisfied that the works were going on smoothly, had returned to the prison premises for attending to other duties. Therefore, it is more or less clear that he had gone away after the gang of prisoners were left at the residential quarters of Shri. Jayasankar. 7. According to the first petitioner, as per the statements in paragraph 6 of the writ petition he was suffering from severe spasmodic pain and he could not attend duty on 21-9-2011. He had informed the second respondent of his illness and consequent inability to attend duty and had promised to submit his application for casual leave on the next day. Therefore, the averment more or less reveals that he had not submitted an application for leave and was absent from duty on the crucial date. The above statement has to be viewed in the context of the contention in the counter affidavit in paragraph 5 thereof. The relevant portion reads as follows:- “There is a precedent in jail that after the escape of the prisoner warder alone is suspended from service. The Head Warder and the Assistant Jailor will make records as if they were absent on duty. This was a method by which senior officers escaped liability. making a warder a scapegoat.” WPC 27149/2011 6 In the context of the above allegation, the question as to whether the first petitioner was guilty of laxity would have to be determined in the detailed enquiry that is to follow. Prima facie the petitioners have been suspended fixing responsibility for supervisory lapses on them. It is certainly important for the supervisory authorities to ensure that proper safeguards are taken while deploying prisoners for outside assignments. If the practice has been to take the prisoners out without adequate staff to accompany them to ensure that any attempt to escape is prevented, then such practice should be stopped. The suspension of the petitioners viewed in the above perspective cannot be said to be unjustified or improper. However, as rightly pointed out by the counsel for the petitioners, one fails to understand why the Warder Shri. Jayasankar who was in charge of the prisoners has been let off without even conducting an enquiry into the circumstances that led to the escape of the prisoner. It cannot be denied that the prisoners were in the custody of the said Warder and that one of the prisoners had escaped from his custody. Whether the escape was under circumstances that could have been prevented by the said Officer, whether the escape was in spite of the exercise of due diligence and care that is expected of a responsible warder, are all WPC 27149/2011 7 matters that could be ascertained only in a proper enquiry. However, without even waiting for any such enquiry, the first respondent has let off the said person, giving him a clean chit. It is up to the first respondent to re-examine the above aspect of the matter while conducting the enquiry into the incident. 8. I am not satisfied that the suspension of the petitioners requires any interference by this Court at this stage. It is well settled that suspension is not a punishment and that the same is resorted to only to ensure that a proper enquiry into the allegations is conducted. 9. This writ petition is therefore disposed of directing the first respondent to conduct the disciplinary proceedings pursuant to Ext.P1 suspension order expeditiously. Sd/- K. SURENDRA MOHAN Judge jj P.S.to Judge WPC 27149/2011 8