ASHARFILAL SINGH Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) HEARD Mr D Nandi, learned counsel appearing for the petitioner as well as Mr S Sen, learned counsel appearing for the State respondents.

(2.) BY this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the legality of the order dated 13.9.2007 as passed by the Addl. Director General of Prisons, Meghalaya, imposing a punishment of removal from service with immediate effect under Rule 7(vi) of the Assam Services (Discipline and Appeal) Rules, 1964, as adopted by the Govt. of Meghalaya. The genesis of the case is found rooted in the narrative that a group of prisoners/under -trials taking advantage of the alleged lapse on the part of the petitioner escaped from the jail. The petitioner was initially served with a show cause as to why disciplinary action should not be taken against him. The petitioner filed his reply contending that he was impelled by two contingencies firstly of nature s call and secondly by absence of the Warders in the post at the relevant point of time and the incident took place. According to his reply that was a collective lapse. Having not been satisfied with such reply, the disciplinary proceeding commenced with the filing of the charge sheet. The charge sheet was incomplete and prejudicial in nature. The petitioner filed a representation underlining those aspects. On receipt of such representation from the petitioner, the disciplinary authority vide order dated 22.6.2001 as available at Annexure 13 to the writ petition reframed the charges and incorporated a list of documents and other materials. As evident from the said order dated 22.6.2001, the following are the charges brought against the petitioner:

(3.) THE petitioner by filing a written statement denied those allegations stating that he had become a victim of circumstances when being impelled by the necessity of the nature s call he opened the inner gate for taking the assistance of the other Warders, the prisoners snatched the keys of the outer gate from him after severely assaulting him as no other warders were found on their posts. Thereafter, an enquiry proceeding was conducted on the charges as stated. In the said incident a Magisterial Enquiry was also directed by the competent authority in the Govt. of Meghalaya. The Deputy Commissioner, West Garo Hills, Tura, filed the report on conclusion of the said Magisterial Enquiry on 10.2.2000. It appears from the said report that there was a serious collective lapse which enabled the prisoners to take advantage and flee from the prison. The said report was placed in the enquiry proceeding. Without furnishing any copy of the enquiry report or any opportunity to have his say on the outcome of the enquiry, the petitioner was served with the order dated 13.09.2007, Annexure 34 to the writ petition, the impugned order holding that the two charges were very grave in nature and the enquiry officer had found them to be proved beyond any reasonable doubt. As a matter of mechanical ratification, the Addl Director General of Prisons, awarded the petitioner the major penalty of removal from service with immediate effect under Rule 7(vi) of the Assam Services (Discipline and Appeal) Rules, 1964, as adopted by the Govt. of Meghalaya. Being aggrieved, the petitioner filed one representation to the disciplinary authority namely the Addl. Director General of Prisons, Meghalaya, on 30.10.2007, however, without any effect whatsoever. Ultimately he filed a statutory appeal against the order dated 13.9.2007 as passed by the disciplinary authority in departmental proceeding No.2/2000/132. The appeal was considered by the appellate authority namely the Commissioner and Secretary, Government of Meghalaya, Home (Prisons) who passed the order dated 9.2.2009. The operative part of the appellate order dated 9.2.2009 is reproduced hereunder: -