Sri Gautam Bora vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2902 Gua

                                                                       Page No.# 1/5

GAHC010312452019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/9397/2019

            SRI GAUTAM BORA
            S/O- LT. HEM CHANDRA BORA, R/O- H.NO.7, BANPHOOL PATH,
            HOUSEFED, GHY-06, DIST.- KAMRUP (M), ASSAM, AND PRESENTLY
            POSTED AS ASSTT. JAILOR, DIST. JAIL, MORIGAON, ASSAM, (CHARGED
            OFFICER)



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP. BY THE SECY., DEPTT. OF HOME, ASSAM, DISPUR, GHY-06

            2:THE SECY. TO THE GOVT. OF ASSAM
             HOME DEPTT.
             DISPUR
             GHY-06 (APPELLATE AUTHORITY)

            3:THE INSPECTOR GENERAL OF PRISONS
            ASSAM
             KHANAPARA
             GHY-22 (DISCIPLINARY AUTHORITY)

            4:THE SUPERINTENDENT
             CENTRAL JAIL
             GHY
             SARUSAJAI
            ASSAM
             PIN- 78103

Advocate for the Petitioner   : MR. P MAHANTA

Advocate for the Respondent : GA, ASSAM
                                                                                    Page No.# 2/5




                                     BEFORE
                    HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                             ORDER

Date : 16-11-2021

Heard Shri P Mahanta, learned counsel for the petitioner. Also heard Shri JK Goswami, learned Addl. Senior Govt. Advocate, Assam appearing for all the respondents.

2. As agreed to by the learned counsel for the parties and upon consideration of the subject matter of dispute, this writ petition is taken up for disposal at the admission stage itself.

3. The petitioner is aggrieved by an order dated 12.06.2014 passed by the Inspector General of Prisons, Assam-Disciplinary Authority under Section 7 (ii) of the Assam Services (Discipline and Appeal) Rules, 1964 (for short hereinafter 1964 Rules) whereby a penalty of withholding of one increment with cumulative effect has been imposed. The aforesaid order was a subject matter of challenge in an intra-department appeal which was also dismissed vide an order dated 05.03.2019 and accordingly, the present petition under Article 226 of the Constitution of India has been filed.

4. To appreciate the issue involved, it would be convenient to briefly narrate the facts. The petitioner is an Assistant Jailor and at the relevant point of time, he was posted in the Central Jail, Guwahati. It is the allegation that on 07.10.2013, one of the inmates of the jail was found to be missing. The specific allegation against the petitioner is that the said escape was possible through a big truck which had entered the jail with ration items at 08.30 am and as per records, the truck had come out at 09.40 am. The allegation against the petitioner is that he was negligent in discharge of his service, taking advantage of which the escape could be possible. As indicated above, after completion of the enquiry, the impugned order of penalty of withholding one increment with cumulative effect was passed which was upheld by the Appellate Authority.

Page No.# 3/5

5. Shri Mahanta, learned counsel for the petitioner has submitted that the facts of the case would reveal that the charge as such, was not even applicable. It has been argued that the records would reveal that the escape was detected only in the evening after the last Head Count whereas the allegation against the petitioner is that the escape was done by taking advantage of the big truck which had entered into the jail premises and was inside the campus from 08.20 am to 09.40 am. It is submitted that the Head Count is done on three occasions. The first counting is done at the time of unlocking, the second counting is done during alteration of shift duty of warders in the mid day and the third counting is done at the time of locking. The records would reveal that the detection was made only after the third counting which would mean that the escape could not have been done possible in the time as alleged i.e., 07.30 am to 10.00 am.

6. Apart from advancing arguments on the merits of the case as well as the procedural improprieties, the learned counsel for the petitioner submits that the charge itself being perverse which is substantiated by the records of the case itself, the impugned order of penalty is required to be interfered with.

7. The learned counsel has placed reliance upon a judgment and order dated 22.11.2019 passed by this Court in two writ petitions, viz, WP(C)/711/2015 and WP(C)/677/2015 instituted by two writ petitioners, who are warders in the same jail and were penalized for alleged negligence in duties for which an escape from the Central Jail, Guwahati at Sarusajai could be possible. It is submitted that the allegations were on the same incident of escape of one prisoner and in that case, this Court, after perusal of the records and hearing the parties, had come to a categorical conclusion that the detection was made after the last Head Count whereas on that date i.e., 07.10.2013, the duty hours of the petitioner was up-to 11 O'clock. The records in that case had revealed that even after the duties had come to an end, on two more occasions, the Head Counting was made wherein, no shortage was detected.

8. Drawing the same analogy, Shri Mahanta, learned counsel for the petitioner submits Page No.# 4/5

that there is a clear allegation against the petitioner that the escape was possible through a big truck which was inside the premises of the jail from 08.20 am to 09.40 am of the fateful day i.e., 07.10.2013. It is submitted that when the records itself would reveal that no shortage was detected in the remaining two Head Counts which were done once in the noon and the other in the evening, the allegation would have no legs to stand.

9. Shri JK Goswami, learned Addl. Senior Govt. Advocate, Assam, however, submits that there is no procedural impropriety in conducting the disciplinary proceeding against the petitioner and he was given all the procedural safeguards in the inquiry to defend himself. The learned State Counsel, however, has fairly submitted that the judgment and order dated 22.11.2019 passed in the aforementioned two writ petitions has not been put to further challenge and has attained finality and in the said judgment and order, this Court had taken a judicial note of the fact that the detection was made after the third Head Count and not any time before that.

10. Shri Goswami, learned State Counsel has further placed before this Court a copy of the written instruction dated 28.10.2021, as per which the authorities have clarified that the first Head Counting is done in the morning at the time of unlocking, second Head Counting is done during alteration of shift duty of the warders in the mid day and third Head Counting is done at the time of locking of the Central Jail.

11. Under the aforesaid facts and circumstances and more specifically the admitted fact that the detection of the shortage of prisoners was made only in the evening, the allegation that such escape was possible in the big truck which was inside the jail premises from 08.30 am to 09.40 am is wholly without any basis.

12. Consequently, the allegation of negligence in duty made against the petitioner for which the escape was possible during that time is held to be without any ground or basis and the same is accordingly interfered with.

Page No.# 5/5

13. In view of the above, this Court has no other option but to interfere with the order of penalty dated 12.06.20214 and the confirmation order passed by the Appellate Authority dated 05.03.2019 by which the penalty of withholding one increment with cumulative effect was imposed upon the petitioner. The penalty having set aside, the increment which was withheld with cumulative effect, would be restored to the petitioner and he would be given all other notional benefits.

14. The writ petition is accordingly disposed of.

15. A copy of the written instructions dated 28.10.2021 placed before this Court is made a part of the records.

JUDGE

Comparing Assistant