The Departmental Proceeding and imposition of penalties must be based on reasonable and warranted grounds, and the detection of any wrongdoing should be within the duty hours of the concerned individuals.

JUDGMENT :

Sanjay Kumar Medhi, J.

Since the causes of action are similar in these 2 (two) writ petitions involving a common Departmental Proceeding, the same are taken up for disposal by this common judgment.

2. The petitioners in these 2 (two) writ petitions are Warders, who were at the relevant time posted in the Central Jail, Guwahati. On 07.10.2013, in the evening counting made at 6.30 p.m., one prisoner was found missing. Alleging negligence on the part of the petitioners, a Departmental Proceeding was initiated by issuance of Show-Cause notices. The petitioners filed their respective statements of defence denying the allegations which resulted in an initiation of a Departmental Inquiry. On completion of the inquiry, a report was submitted by the Inquiry Officer on 21.05.2014. After consideration of the reply of the petitioners, the impugned orders of penalty were issued, the details of which are given herein below.

3. The petitioner in WP(C)/677/2015 (Md. Gulenur Ali), the penalty was for withholding of one increment with cumulative effect for one year and the period of suspension to be treated for pension only vide order dated 07.07.2014.

4. So far as the petitioner in WP(C)/711/2015 (Khagen Chandra Das) is concerned, the impugned penalty was for withholding of two increments with cumulative effect for two years along with the period of suspension to be treated for pension only vide the impugned order dated 07.07.2014. The petitioners, thereafter, had preferred Departmental Appeal which also did not yield any result. Accordingly, the present writ petitions have been filed challenging the impugned orders of penalty as well as the Departmental Proceeding as a whole.

5. I have heard Shri D. N. Bhattacharya, learned counsel for the petitioners. I have also heard Shri N. Goswami, learned Government Advocate for the respondents, who has also produced the records.

6. Shri Bhattacharya, learned counsel for the petitioners, has submitted that without going deep into the facts, on a solitary point, the findings of the Inquiry Officer and the impugned orders are liable to be declared perverse. The learned counsel has submitted that it is a matter of practice that head-counts of the number of convicts are done trice a day-at 5.30 a.m., 11.00 a.m. & 6.00 p.m. The allegation as per the Show-Cause Notice is that the shortage in one number of prisoner was detected on 07.10.2013 at 7.00 p.m., which was after the third head-count. On the other hand, the duties of the petitioners on that fateful day was up to 11.00 o'clock, the learned counsel submits that when no such detection of shortage in the number of prisoners was made during the duty hours of the petitioners, making any allegation against the petitioners are wholly unreasonable and arbitrary. The learned counsel further submits that amongst other procedural impropriety on this ground itself, interference of this Court is warranted by exercise of extra-ordinary powers conferred under Article 226 of the Constitution of India.

7. This Court by taking into account the aforesaid submission had passed an order dated 31.10.2019, after going through the contents of Annexure-1 of the writ petition, as to whether any action was taken against Shri Ajit Nath, Head Warder, as specific allegations was made against him.

8. Shri Goswami, the learned State Counsel, by referring to the records and the written instructions, dated 14.11.2019, has submitted that no action was taken against Shri Ajit Nath, Head Warder, on the ground that he had already retired from service on attaining the age of superannuation on 31.08.2017. Shri Goswami, learned State Counsel, further by referring to the Police Report (Annexure-8 to the writ petition) submits that there are grounds for implication of the petitioners in the incident of escape of one of the convict from the jail.

9. Rejoining his submissions, Shri Bhattacharya, learned counsel for the petitioners, have submitted that the Police Report itself appears to be a ma