M. Manickam vs The Secretary to Government, Home Department

N. Paul Vasanthakumar, J.—Petitioner seeks to quash the order issued in G.O.Ms.No.869 Home ( Prison-I) Department, date 19.9.2002

in this writ petition.

The brief facts necessary for disposal of the writ petition are as follows.

(i) Petitioner was initially appointed as Grade-II Warder on 1.4.197 5 in the Jail Department and he was subsequently promoted as Chief Head

Warder, Assistant Jailer, Deputy Jailer and then Jailer. Petitioner was serving as Jailer at the Central Prison, Puzhal, from 24.1.200 0 to 8.8.2000.

Whileso, on 30.3.2000, a remand prisoner by name Selvam obtained bail from the Court of Judicial Magistrate No.II, Poonamallee, pursuant to

which he was released on bail. However, on 1.4.2000 , a news item appeared in the ""Indian Express"" newspaper that a remand prisoner by name

Selvam escaped from the Central Prison, Puzhal, on 30.3.2000, by scaling over the wall. The news item further stated that a special team nabbed

the prisoner and then produced him before the Judicial Magistrate, Poonamallee and subsequently he was released on bail.

(ii) Based on the said news item, a preliminary enquiry was conducted by the Superintendent of Central Prison, Chennai, and it was reported by

him that there was no such escape on 30.3.2000 and the said prisoner was in fact released on bail on 30.3.2000 and that the said news item might

have been spread by the rumour mongers.

(iii) According to the petitioner, another enquiry was conducted by the Deputy Inspector General of Prisons, Chennai range, who in his report

stated that the prisoner Selvam might have escaped through the compound wall by using the branch of the tree. Based on the said report, a charge

memo dated 20.3.2000 was issued to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charges

levelled against the petitioner was that he failed to supervise his subordinates properly and the prisoner escaped by scaling over the compound

wall, using the branch of the tree and also made false entries in the registers and forged the signature of the prisoner and furnished false report to

the higher officers as if the prisoner was released on bail. Petitioner denied the said charges. However, an oral enquiry was conducted and the

Enquiry Officer furnished his findings on 4.1.2001 holding that the charges levelled against the petitioner are proved. Thereafter, the Government

issued the impugned order awarding the punishment of postponement of petitioner'' s increment for a period of two years without cumulative effect.

Petitioner states that since he was waiting for his next promotion as Additional Superintendent in the approved list, the above said punishment

would affect his promotion prospects and therefore prayed for setting aside the said punishment.

(iv) Petitioner attacked the order of punishment stating that even according to the department, a special team was formed to nab the prisoner and

after nabbing him, he was produced before the Judicial Magistrate, Poonamallee, and thereafter he was released on bail. According to the

petitioner, the compound wall of Central Prison, Puzhal, is 18 feet height and had the prisoner scaled over the 18 feet wall and jumped from there,

at least he might have fractured any one of his limbs and there is no such fracture or at least abrasion on the body of the said prisoner when he was

produced before the Judicial Magistrate, Poonamallee. It is the specific case that there is no tall trees either near the compound wall or even inside

the prison. Apart from that no cut down trees were available inside the prison on that date.

(v) Petitioner further submitted that the news item reported was that a special team was formed to nab the prisoner and after nabbing him, he was

produced before the Judicial Magistrate, Poonamallee and thereafter released him on bail. But according to the petitioner, no special team was

formed on the particular date for such purpose. The said fact was not verified by the Enquiry Officer.

(vi) Petitioner also states that the statements given at the time of preliminary enquiry by M/s.Mohammed Nizamudeen, Grade-II Warder; D.

Vijayan, Grade-II Warder; and the Sub-Inspector of Police, Central Prison, Puzhal Outpost, Puzhal, contain that there was shortage of one

person on 30.3.2000 on the basis of hearsay. According to the petitioner, the said Selvam got bail order and based on the said bail order, he

executed bail bond at 5.00 p.m. on 30.3.2000 and he was released from jail at 5.45 p.m. on that date itself and if the jail register is looked into, it

will establish the said facts. The Enquiry Officer failed to consider the above very important jail register before arriving at the conclusion holding

that the petitioner is guilty of charges.

(vii) Petitioner produced defence witnesses M/s.Domnic, Grade-II Warder; Sanjeevi, Gate Keeper and also documentary proof in the form of In-

and-out register and disposal register. The identification of the prisoner was to be attended by the Jailer as per Rule 37 of the Tamil Nadu Prison

Mannual, Volume-II and therefore, there is no element of truth in the statement of the prosecution witness No.1 and the conclusion arrived at by

the Enquiry Officer based on that evidence is unsustainable. Petitioner further alleges that the said prosecution witness is an interested witness as he

was promised a favour for his transfer, who also got his transfer from Central Prison, Puzhal, to Central Prison, Chennai, on 23.4.2000.

(viii) The prosecution witness No.3 viz., Veeraragavan, SubInspector of Police, Central Prison, Puzhal Outpost, deposed that he was on duty on

30.3.2000 from 9.00 p.m. to 7.00 a.m. the next day, and during his duty hours, no incident of alleged escape of prisoner took place and no such

complaint came to his notice. He was relieved by one Surendran, Sub-Inspector of Police, who also did not complain about any such incident. The

other Sub-Inspector of Police by name Surendradas was also enquired, who also informed that he did not receive any information about the

escape of prisoner Selvam and the attempt to recapture him and according to the petitioner, the said statements of the witnesses, who are all

independent witness, ought to have been relied upon by the Enquiry Officer.

(ix) It is further stated that one Panchapakesan, Grade-II Warder, Central Prison, Puzhal, defence witness No.2 has deposed that he was allotted

duty in the third block in the afternoon at 1.00 p.m. to 6.00 p.m. and he took control of 23 prisoners from the block for clearing bushes and

shrubs, etc., and after completing the work, his gang went inside the block at 5.15 p.m., who also deposed that all the prisoners returned back to

the block and no prisoner escaped from his custody on 30.3.2000.

(x) One Samidurai, Advocate, who arranged bail for the prisoner Selvam was enquired by the DIG on 12.9.2000, who has stated that bail bond

was sent by the Court staff and the same might have reached the prison between 4.00 p.m. and 5.00 p.m. on 30.3.2000 and therefore the

allegation that the petitioner arranged bail for the said Selvam is also false.

(xi) The prisoner Selvam, who was alleged to have escaped was also enquired by the Enquiry Officer, who also stated that the signature in the

register and the bail bond are his signature. He also stated that he was released on bail and he did not escape from the prison.

(xii) It is further stated by the petitioner that there is no fixed time to release the prisoners from the jail and it is the discretion and the administrative

convenience of the Jailer and therefore time of receipt of bail bond is immaterial to draw an adverse inference against the petitioner. Further, no

complaint regarding escape of the prisoner was made u/s 24 of IPC before the Police and therefore the findings of the Enquiry Officer is on no

evidence, based on which the petitioner could not have been punished.

The respondent herein filed a counter affidavit in which it is stated that a preliminary enquiry was conducted on the escape of the prisoner as

alleged in the news report published in Dinamalar and Indian Express and the petitioner who was a Jailer, being the Chief Executive of the Prison,

should have informed about the incident to his higher officials and as per Rule 32 of the Prison Mannual, Volume-II, petitioner suppressed the fact

and even made bogus entries in the relevant register to show as if the prisoner was released on bail as per the orders of the Judicial Magistrate,

Poonamallee and sent a false report to the higher officials and hence the disciplinary action was initiated under Rule 17(b) as stated supra and an

enquiry was conducted and based on the proven charges, petitioner was imposed with punishment of postponement of next increment for two

years without cumulative effect. In the counter affidavit it is further stated that the signature which was found in the bail bond was doubtful and

therefore the order imposing punishment is legal and valid.

The learned counsel appearing for the petitioner, after elaborate arguments submitted on 16.2.2006 that the Government Advocate may be

directed to produce the original records and the bail order before this Court for verification and to verify the signature of the said Selvam. After five

adjournments, the original jail register relating to the prisoner Selvam was produced before me on 23.3.2006.

I have perused the original jail register, which contains an entry that Selvam was released on bail on 30.3.2000. No time of release was

mentioned therein. It is the specific case of the petitioner that based on the bail granted by the Judicial Magistrate, Poonamallee, the said Selvam

was released on 30.3.2000 from the Central Prison, Puzhal. The Enquiry Officer''s report contains the statement given by the Advocate

P.Samidurai, who appeared for the said Selvam in the bail petition. He has stated that the said Selvam was arrested on 20.3.2 000 along with one

other person in Cr.No.399 of 2000 of Maduravoil Police Station for offences under Sections 380 and 481 IPC and the said two persons were

produced before the Judicial Magistrate No.II, Poonamallee and they were remanded. According to the advocate, he met Selvam in the prison,

who in turn told him that he will send his friend for taking him on bail. Pursuant to the same, the said Advocate filed bail application on 29.3.2000

at the request of the friend of said Selvam viz., Easwaran. In the said bail application, notice was ordered returnable on 30.3.2000 and on

30.3.2000 after service of notice, on instructions from the Police and after hearing the Public Prosecutor, Selvam was directed to be released on

bail and consequently on the same day bail bonds were executed by M/s.Santhi and Lakshmi and the bail order was sent to the Central Prison,

Puzhal, from Judicial Magistrate Court, Poonamallee. He also deposed that the bail order should have reached the jail between 4.00 p.m. and

5.00 p.m on 30.3.2 000.

I have perused the statement of the Assistant Prison Officer, namely Sanjeevi, wherein it is stated that the bail order was received at the Central

Prison, through one Muthu, Court Staff of Judicial Magistrate No.II Court, Poonamallee at 5.00 p.m. and he entered the receipt of bail order in

the Tapal register and forwarded the same to the Jailer immediately and at about 5.45 p.m. on the same day, the said Selvam, son of Chinnadurai,

was released from the jail.

Considering the above referred statements of the Advocate and the Assistant Jail Officer and also after perusing the bail order and the prison

register, I am of the firm view that the said Selvam was released only on the basis of the bail order dated 30.3.2000 and that he has not escaped

from the prison as alleged in the news item. Therefore, framing of the charges based on the alleged news item, conduct of enquiry and the imposing

of punishment are all unsustainable. It is pertinent to note that the grant of bail by the competent Court on 30.3.2000 is not disputed and also the

release of Selvam from the prison on any other subsequent date is also not proved. In the absence of the above said proof, the Enquiry Officer

cannot presume that the said Selvam was not released on 30.3.2000 and he had escaped from the jail on 30.3.2000. Hence the charges are

proved on no evidence.

In view of the above findings arrived at by me, I hold that the impugned order in G.O.Ms.No.869 Home (Prison-I) Department dated 19.9

.2002 is unsustainable and the same is set aside on the ground that the punishment is imposed on no evidence. Consequently the writ petition is

allowed. No costs.