IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 31250 of 2011(E) ----------------------------------------- PETITIONER(S): ------------------------- SEBASTIAN.T.JOSEPH,AGED 40 YEARS, S/O.T.M.JOSEPH,THEVARAVALAKKATTIL HOUSE, NSS COLLEGE PO, NEMMARA,PALAKKAD 678 508. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S): --------------------------- 1. SECRETARY TO GOVERNMENT,HOME (B) DEPARTMENT,THIRUVANANTHAPURAM 695 001. 2. THE DEPUTY SECRETARY TO GOVERNMENT, HOME (B) DEPARTMENT,THIRUVANANTHAPURAM 695 001. 3. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS,THIRUVANANTHAPURAM 695 001. 4. SUPERINTENDENT OF POLICE, PALAKKAD- 678 001. 5. ACCOUNTANT GENERAL,THE OFFICER OF THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM 695 001. R1 TO R5 BY SR. GOVERNMENT PLEADER SMT. M.J.RAJASREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31250/2011 E APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1- TRUE COPY OF THE ORDER G.O.(Rt)NO.2005/2009 HOME DEPARTMENT DATED 12.10.2009. EXHIBIT P2- A TRUE COPY OF THE JUDGMENT IN WP(C)NO.6795/2010 OF THIS HON'BLE COURT DATED 06.07.2011. EXHIBIT P3- A TRUE COPY OF THE PROCEEDINGS DATED 11.4.2011 IN CASE NO. 295/11/2000-01 CD OF NATIONAL HUMAN RIGHTS COMMISSION. EXHIBIT P4- A TRUE COPY OF THE REPRESENTATION DATED 07.10.2011 ADDRESSED TO THE SECOND RESPONDENT. EXHIBIT P5- A TRUE COPY OF THE SHOW CAUSE NOTICE C.NO.170/DR/CD/2009 DATED 20.03.2009. EXHIBIT P6- A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER. EXHIBIT P7- A TRUE COPY OF THE COMMUNICATION DATED 27.08.2011 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) No. 31250 OF 2011 ----------------------------------------------------- Dated this the 23th day of November, 2011 J U D G M E N T Petitioner is a police constable. 2. He is an accused in crime No.352/CR/PKD/05 registered by the CBCID Palakkad u/s 302 IPC. The case occurred when the accused in Crime No.223/2000 of the Cherpulassery police station, who was admitted to Sub Jail, Ottapalam died in the District hospital Palakkad on 5.11.00 and the allegation is that the death was on account of custodial violence. It is in that case the petitioner and two others are accused. 3. It appears that the matter was considered by the National Human Rights Commission which passed an order directing the first respondent, to pay a compensation of Rs.2 lakhs to the kith and kin of the deceased. Accordingly payment was made by the Government and it also issued W.P.(C) No. 31250 OF 2011 :2 : an order to recover the amount paid from the three accused. In pursuance to the above petitioner's share has already been recovered. 4. However it appears that subsequently National Human Rights Commission has clarified the matter that it has directed only payment of compensation and not recovery from any body. It is in this situation the petitioner seeks a direction to refund the amount recovered from him. The contention raised by the counsel is that the petitioner is innocent of the allegations and that if at all any recovery is possible it can be only after enquiry contemplated under the Service Rules. 5. So far as the Service Rules which are relied on by the learned counsel for the petitioner is concerned, those rules will have application only in the matter of imposition of punishment in a departmental proceedings. Although departmental proceedings are also pending W.P.(C) No. 31250 OF 2011 :3 : against the petitioner, recovery that has been effected from his salary is not by way of any departmental proceedings, but the amount recovered is the amount of compensation paid by the first respondent, Government pursuant to the orders passed by the National Human Rights Commission. Therefore the Service Rules have no relevance in the matter. 6. As at present it is a fact that Government have paid the compensation as ordered by the National Human Rights Commission. It has also an admitted position that there is a criminal case and departmental proceedings against the petitioner. Therefore if the amount paid by the Government is recovered from the petitioner, such recovery cannot be said to be illegal. 7. Be that as it may, I clarify that in case the disciplinary proceedings and the criminal case is decided in favour of the petitioner and he is acquitted of all blames, W.P.(C) No. 31250 OF 2011 :4 : at that stage it will be open to the petitioner to claim refund of the amount. The writ petition is disposed of as above. ANTONY DOMINIC, JUDGE ul/-