The writ petitioner was the Chief Head Warder in Prison Department and presently he is retired. He was recruited as Grade II Warder on 2.9.1977 and promoted as Grade I Warder on 17.10.2000 and further promoted as Chief Head Warder on 02.10.2002 and transferred to Gobi Sub Jail on 10.10.2002.
2. According to the petitioner, at that time, in Gobi Sub Jail there were 66 remand prisoners while the sanctioned strength was 27. The petitioner was holding additional charge of Superintendent since the Jail Superintendent was sent on deputation. It is stated that one of the remand prisoners, viz., Ramasamy son of Thavasi involved in a criminal case in Kadathur Police Station was lodged in the Sub Jail and he was suddenly affected by stomach pain on 11.5.2003 at 4.00 a.m. the petitioner deputed two Warders, viz., Muthukrishnan and Rahamathkhan to take him to hospital and after treatment he returned to the Sub Jail at 4.40 p.m. on the same day.
2(a). It is stated that he again complained about stomach pain and was taken back to the Government Hospital by duty Warders, viz., Angappan and Puvendran at 5.55 p.m. with permission from the Guard Officer. The Duty doctor examined the prisoner and declared him died at about 6.15 p.m. and post-mortem was conducted apart from R.D.O. enquiry. After 42 days when the parts of the deceased were sent to Forensic lab for chemical analysis, it was found that the death was due to organ phosphorus poison.
2(b). It was based on the R.D.O. report, a charge was issued against the petitioner on 2.12.2006 on the ground that the petitioner was responsible for the death of the remand prisoner by taking poison due to the inaction of the petitioner. The petitioner submitted his explanation on 28.12.2006, denying the charge. It is stated that the enquiry was conducted on 19.4.2007 and 30.5.2007 and six witnesses were examined on the prosecution side and nine documents were marked. The enquiry report was sent on 25.8.2007, holding that the charge was proved. Copy of the enquiry report was sent to the petitioner along with show-cause notice dated 25.8.2007 on the same day itself and the petitioner submitted his explanation on 7.9.2007 and the first respondent imposed punishment on 31.10.2007 of reduction of pay by one stage for one year without cumulative effect.
2(c). Aggrieved by the same, the petitioner filed appeal before the second respondent on 12.12.2007 and the same was rejected on 11.2.2008 and a copy of the order was served on the petitioner on 21.2.2008. Challenging the said rejection order of the second respondent, the petitioner filed a revision before the third respondent on 28.03.2008 and that was also rejected on 20.05.2008. According to the petitioner, it is not a speaking order.
2(d). It was, aggrieved by the rejection of the third respondent, the petitioner preferred a mercy petition before the 4th respondent which was also rejected on 25.06.2008, against which the present writ petition has been filed on various grounds including that the rejection order passed by the respondents are not speaking orders and they were made mechanically, that there was no piece of evidence available to corroborate the version of post-mortem report that death was caused to the remains of organo phosphorus poison and except post-mortem certificate, there was no other evidence, that the samples were not sent immediately for the chemical analysis and it was sent only after 42 days after the death and the evidence of doctors were not consistent, that the charge framed against Balakrishnan, who was Guard Officer, who took the remand prisoner to the Government Hospital was not proceeded with while he was cited as a witness and therefore, it is a selective discrimination, that the enquiry report was submitted on 25.08.2007 and on the same day, show-cause notice was issued by the first respondent which according to the petitioner is in a hurried manner and that it is a case of no evidence.
3. In the counter affidavit filed on behalf of the respondents, while the facts are not in much dispute, it is stated that the post-mortem report says that there was deposit of organo phosphorus poison in the stomach of the remand prisoner and the death was due to the consumption of the poison and the presence of such poison in the stomach of the remand prisoner shows that the prisoner had accessibility with the poison while he was in custody and the petitioner failed to discharge his duty of saving the prisoner.
3(a). It is stated that based on the Collectors report of inquest, the Government by order dated 22.9.2006 ordered to take disciplinary action against the petitioner along with other prison personnel, viz., Thiru K.Angappan, Second Grade Warder, Thiru Rahmathkhan, Second Grade Warder, Thiru K.Poovendran, Second Grade Warder, Thiru P.Muthukrishnan, Second Grade Warder and Thiru R.Jambukeswaran, Second Grade Warder. The petitioner was dealt with under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, 1955 for his lapses.
3(b). Based on the enquiry officers report, the punishment of reduction of pay by one stage with effect from 1.11.2007 from R.4815 + P.P.15/- to Rs.4730+ P.P.15/- for a period of one year without cumulative effect was ordered by the first respondent. It is stated that the appeal and revision filed were rejected since no new grounds have been raised. It is stated that the petitioner who was put in charge of the post of Superintendent of Sub Jail was responsible for the improper supervision and the facts show that there was negligence. It was the duty of the petitioner to monitor the Sub Jail carefully and if the said duty was performed properly, the death of the prisoner would have been averted.
3(c). On facts, the prisoner has consumed poison in the Sub Jail which shows the negligence on the part of the petitioner. Therefore, it cannot be said to be a case of no evidence. There is no reason to disbelieve the post-mortem report and the fact that the prisoner consumed poison in the Sub Jail when he was under the custody of the petitioner. Therefore, according to the respondents, the enquiry was conducted in the manner known to law and a copy of the enquiry report was furnished to the petitioner and show-cause notice was issued to the petitioner. It is also stated that the other persons involved were also punished. The petitioner had retired from service on 30.6.2006 and therefore, the question of granting promotion does not arise.
4. Mr.P.I.Thirumoorthy, learned counsel appearing for the petitioner would submit that the orders of the respondents 2, 3 and 4 are non-speaking orders and the same are against the Rule 23 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, 1955. It is his further contention that the first respondent, the original authority, passed orders even without evidence but only based on post-mortem report and the first respondent failed to consider the delay of 42 days in sending the samples for chemical analysis and therefore, the blame cannot be made against the petitioner. It is his further submission that the enquiry report was made on 25.08.2007 and on the same day, show-cause notice was issued to the petitioner which shows the hurried way in which the disciplinary proceedings were proceeded against the petitioner.
5. A reference to the enquiry officers report shows that the personal enquiry was conducted on 12.4.2007, in which the doctor who conducted the post-mortem was examined and he gave opinion that phosphorus was found in the abdomen and therefore, the death would have been caused by the same. It is seen that the said witness when he was cross-examined by the petitioner, stated that earlier the remand prisoner was brought to him for acid peptic disease. It is no doubt true that one of the witnesses who was a Second Grade Warder, in his cross-examination, stated that no poisonous materials were recovered from the jail premises. Another doctor by name, Dr.G.R.Raghunathan who also conducted post-mortem was examined and cross-examined by the petitioner. The documents were all placed before the enquiry officer and marked in the manner known to law and the post-mortem report reads as follows:
as per chemical analysis report, the death is due to organo phosphorus poison. Therefore, on the admitted fact that the petitioner was in charge of the Sub Jail and during that time, the incident took place, on the basis of post-mortem report which cannot be lightly brushed aside and which is certainly a piece of evidence, the first respondent has passed the original order of punishment.
6. On the face of it, I do not see any infirmity or illegality in the enquiry conducted and there is no violation of the principles of natural justice while the enquiry officer conducted the enquiry and it was considering the enquiry officers report, the first respondent passed the impugned order of punishment on 31.10.2007, as stated above.
7. A reference to the order dated 11.2.2008 of the second respondent to whom appeal was filed, shows that the second respondent in fact applied his mind by narrating the facts and arrived at the conclusion that when mobile phones and other things are prohibited from taking into the Sub Jail premises, it is the duty of the Superintendent to see that no such incriminating materials are taken to the Sub Jail, and on the factual position that the remand prisoner died due to poison, the responsibility lies on the petitioner and in those circumstances, the second respondent has stated that the petitioner has not come forward with a new plea and hence, rejected the appeal. It cannot be said that there are no materials available for the second respondent who has applied his mind while passing the impugned order on appeal.
8. The Tamil Nadu Civil Service (Discipline and Appeal) Rules,1955 particularly Rule 24 which has been relied upon by the learned counsel for the petitioner states as follows:
" Rule 24. In the case of an appeal the appellate authority shall pass such order as appears to it just and equitable, having regard to all the circumstances of the case."
By applying the said statutory provision to the facts of the case, especially to the order of the second respondent on appeal, I am of the considered view that there is no violation of the Rules.
9. Again, the revisional authority viz., the third respondent, in the order dated 20.5.2008 has elaborately discussed even the contents of the post-mortem report and in such circumstances, there is no possibility to hold about the non-application of mind on the part of the third respondent. The appellate authority and the revisional authority while confirming the original order of punishment, need not elaborately discuss the facts. Law is well settled that on reading of the order of the appellate authority or the revisional authority, there must be some material to show that such authorities applied their mind, even though no elaborate discussion is required while confirming the order of the original authority. On a reference to the order of the appellate authority as well as the revisional authority it is found that there has been discussion about the factual position and in such circumstances, it is not possible to hold that the appellate authority and the revisional authority have not applied their mind. In such circumstances, it cannot be said that the orders of the second and third respondents are non-speaking orders.
10. In such view of the matter, the writ petition fails and the same is dismissed. No costs. Connected miscellaneous petition is closed.
kh To
1.The Superintendent of Prison Central Prison, Coimbatore.
2.The Deputy Inspector General of Prison Coimbatore Range, Coimbatore.
3.The Additional Director General of Prison C.M.D.A.Tower Gandhi Irwin Road Egmore, Chennai 600 008.
4.The Secretary to Government State of Tamil Nadu Home Department Fort St.George, Chennai 600 009