K.R. Nagarajan vs The Superintendent, Central Prison and The Superintendent, Central Prison

K. Chandru, J.—The Petitioner, who was working as a Grade II Warder at the Central Prison, Puzhal filed O.A. No. 8492 of 2000,

seeking to set aside the order dated 07.11.2000 passed by the first Respondent. By the impugned order, the Petitioner was imposed with the

penalty of reduction in basic scale of pay for a period of three years with cumulative effect. Though in the impugned order, it was indicated that he

was entitled to prefer a statutory appeal, the Petitioner moved the Tribunal by waiving the appellate remedy.

The Tribunal ordered notice of motion on 23.11.2000. On notice from the Tribunal, the first Respondent had filed a reply affidavit dated

06.01.2001. The second Respondent has filed a counter affidavit dated 31.05.2004. The Petitioner also filed an additional typed set containing

enquiry report which led to the ultimate imposition of penalty.

In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P. No. 39796 of 2006.

The facts leading to the imposition of the penalty were as follows:

The Petitioner was appointed as Grade II Warder with effect from 24.10.1983. After his appointment, he served in various sub-jails and Central

Jails. While he was working as Grade II Warder at Sub Jail, Vedasandur from 26.07.1993 to 09.06.1998, he was drafted to work at the Central

Prison, Madurai on the basis of deputation as the Central Prison required additional security. During1997, While he was on deputation, he had

absented himself for roll call duties on 05.10.1997 and 08.10.1997. A charge memo under Rule 17(a) of the Tamil Nadu Civil Service (D & A)

Rules was issued to him on 21.10.1997. The Petitioner submitted his explanation on 20.07.1997 and again, he submitted a petition dated

27.11.1997 addressed to the Inspector General of Prisons. He also submitted the advance copy of the petition to the Inspector General of

Prisons. The Inspector General of prisons instructed the Respondents to initiate action against the Petitioner under Rule 17(b) of the TNCS (D

&A) Rules. In his explanation, he furnished false complaints against his superiors. Therefore, charges under Rule 17(b) were framed.

The charges leveled against the Petitioner were:

i) The Petitioner directly submitted a petition to the I.G. of Prisons

ii) He made false complaints against the prison administration regarding seizure of Kanja and intoxication tablets which were hidden into the

chapels of the prisoners.

iii) While he was in the prison on 02.10.1997, an unknown person has been permitted kanja inside the prison after getting Rs. 500/-.

iv) On 01.10.1997 when he sounded the alarm whistle, the superintendent was forced to come to prison with Gun man and on the allegation that

22 Warders were working as orderlies in Jail Officer''s house.

v) He also failed to come for roll call duty on 05.10.1997, 9.10.1997 and 15.10.1997.

The Additional Superintendent of Prison was appointed as Enquiry Officer. An oral enquiry was held on 16.10.1999. During the enquiry, the

Petitioner had requested to enquire five persons as defense witnesses. One witness by name S. Nallathambi who gave a statement did not

substantiate his statement as no records were produced. When the enquiry was in progress, the Petitioner was transferred to Central Prison,

Puzhal during January 2000. He was asked to attend the oral enquiries on various dates. But the Petitioner did not attend the enquiry on the plea

that no Traveling Allowance was paid to attend the enquiry at Madurai.

It was stated that if he was really interested to complete the enquiry, he should have attended the enquiries on the notified dates on spending his

own money. The Enquiry Officer in the absence of the Petitioner completed the enquiry and communicated the result to the disciplinary authority.

The disciplinary authority after obtaining representation from the Petitioner passed the final order of penalty dated 07.11.2000, which is impugned

in the writ petition.

The Petitioner contended that after his transfer to Chennai, the Enquiry should be held either at Chennai and if it was held at Madurai, he should

be paid Traveling Allowance for the same. The Petitioner''s request for Traveling Allowance was denied. Hence, he was unable to attend the

enquiry on those days and he was denied reasonable opportunity of facing the enquiry.

The Enquiry Officer in his report noted that the Petitioner''s complaint of non-grant of Traveling Allowance as a reason for not appearing, but

yet, he set him ex party stating that there was no bonafide in his not attending the enquiry.

Mr. P. Mohanraj, learned Counsel for the Petitioner submitted that when an enquiry is conducted on the original place of the competent

authority, the transferred Government servant is not expected to spend money on his own to attend the enquiry. Either the enquiry should have

been held at the transferred place by appointing a new adhoc disciplinary authority or in the alternative, the Petitioner should have been given

reasonable opportunity to defend himself which includes the payment of Traveling Allowance. In normal circumstances, when an employee under

suspension, he is paid subsistence allowance. But in the present case, the Petitioner was actually working during the pendency of Rule 17(b)

proceedings. One is not expected to go from Puzhal (Chennai) to Madurai spending out of his pocket as noted by the second Respondent

competent authority. Evening cases where in a departmental enquiry, when witnesses are brought in by the Department, the witnesses are paid

Traveling Allowance and their trip is treated as on other duty. Similarly, the Petitioner, who was to defend himself cannot be allowed to spend his

own amount to attend the enquiry. This would definitely deny reasonable opportunities of defending oneself. The stand taken by the Petitioner is

well founded. The Respondents action in setting the Petitioner ex party only on the ground that he did not attend the enquiry for want of payment of

Traveling Allowance is not justified and the Respondents should have taken steps to provide Traveling Allowance to the Petitioner. Until the

Petitioner is found guilty, he has to be presumed to be innocent and the period for which he had attended enquiry should be treated as other duty

(OD).

In view of the above, this Court is not inclined to go into the merits of the contentions raised by the Respondents. The writ petition is liable to

the allowed. Accordingly, the writ petition stands allowed. The impugned order stands set aside. However, it is open to the Respondents to

conduct a fresh enquiry, if it is so warranted. It must be done after affording reasonable opportunities to the Petitioner including granting outrivaling

Allowance for attending the enquiry if it is held outside his place of posting. No costs.