TMI Blog1995 (1) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... scape. In that connection, two of the inmates attempting to escape and one jail official died in the shooting which took place,. Six terrorists made good their escape. The Inspector General of Prisons immediately inspected the prison and made a report to the Government on January 9, 1987. He reported inter alia that the said incident was the cumulative result of lax administration, indiscipline and lack of control over the prisoners. He reported further that the respondent followed the policy of appeasement towards the extremists. He yielded to each and every illegal demand of the extremists. As a result, detenue Gurdev Singh, assumed the leadership of the prison population and dictated terms to the administration. There was a total breakdown of the classification of the inmates in the different wards of the jail. It is quite evident from the fact that three escapees Balwinder Singh, Major Singh and another Balwinder Singh were permitted to stay together alonwith detenue Kulwant Singh life prisoner Major Singh and three adolescent undertrials Ram Singh, Kulwant Singh and Surinder Singh in a single cell in utter disregard of the Punjab Jail Manual...... It has been told by the memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The High Court quashed the memo of charges on the following grounds: (1) the delay of five and a half years inserving the memo of charges, for which there is no acceptable explanation, is itself a ground for quashing the charges. On account of lapse of time, it has become more difficult for the respondent to adduce evidence or to prove his innocence. Number of witnesses whom he could have examined are either dead or no longer available. Some of them have either retired or transferred elsewhere. The jail has also been repaired with the result that the evidence of negligence, if any, is missing. Holding an enquiry at this distance of time cannot but prejudice the respondent. (2) The Sub-divisional Magistrate had exonerated the respondent of any responsibility for or culpability in the said incident in his report dated January 26, 1987. Evidently, the government kept quiet for a number of years in view of the said report. Only much later, when the respondent's case was to come up for promotion to the post of Deputy Inspector General of Prisons that the matter was raked up and charges served. The government had practically decided not to proceed against the respondent. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding or in proceeding on the assumption, as the case may be that the report of the Subdivisional Magistrate had exonerated the respondent of any responsibility or culpability. The report, as stated above, neither exonerates the respondent nor does it hold him re sponsible or guilty. It looks probable that the High Court was misled into believing that the said report has exonerated the respondent. Not only that. There is the earlier report of the Inspector General of Prisons, which was submitted within one week of the incident. It holds the respondent responsible for the said incident, no doubt, along with other prison officials. Indeed, the Inspector General of Prisons had recommended the suspension of the respondent and a few other officials. In this state of facts It may not be correct to assume that the Government had dropped the idea of proceeding against the respondent and that it changed its mind later. It is one thing to say that the Government was guilty of inaction and an altogether different thing to say that it had dropped the matter in view of the Sub-divisional Magistrate's report but then revised its opinion later, for reasons which are suggested to be not fair. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. They are: (a) That he was transferred from the post of Superintendent of Nabha Jail and had given charge of the post about six days prior to the incident. While the incident took place on the night intervening 1st/ 2nd of January, 1987, the respondent had relinquished the charge of the said office. on December 26, 1986. He was not there at the time of incident. (b) The explanation offered by the government for the delay in serving the charges is unacceptable. There was no reason for the government to wait for the Sub-divisional Magistrate's report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration, Head of the Department, itself The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub divisional Magistrate was not so connected. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ease of the government rather than the defence of the rethe respondent. Similarly, the mere fact that some persons who could have been examined as witnesses have retired or have been transferred cannot be said to cause prejudice to the respondent. It is not stated that they have become unavailable. (iv) Pending the writ petition, the enquiry was proceeded with and by the date of the impugned judgment, the government had completed its evidence. Only the defence evidence remained to be adduced whereafter the enquiry officer would have made the report. 12. The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R.Antulay v. R.S.Nayak Anr. (1992 (1) S.C.C.225). Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this court mentioned the propositions emerging from the several decisions considered therein and observed that ultimately the court has to balance and weigh the several relevant factors balancing test or balancing process and determine in each case whet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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