IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.77 of 2010 and M.P.NOs.1 and 2 OF 2010 K.Nagarajan .. Petitioner Vs. 1.Superintendent of Police, Nagapattinam District. 2.Director General of Police, (Law and Order), Chennai-600 004. 3.Government of Tamil Nadu, rep. By Secretary, Public Department (Law and Order), Fort St. George, Chennai-600 009. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in G.O.Ms.No.698 Public (Law and Order-A) Department, dated 29.7.2009 on the file of the third respondent and to quash the same insofar as the petitioner is concerned. For Petitioner : Mr.S.Sadasharan For Respondents : Mr.A.Arumugam, Spl.G.P. ORDER Heard both sides. 2.The petitioner is a Sub Inspector of Police presently posted at Nagapattinam Town Police station. He has come forward to file the present writ petition seeking to challenge the order of the third respondent State made in G.O.Ms.No.698 Public (Law and Order-A) Department, dated 29.7.2009 and to set aside the same insofar as the petitioner is concerned. 3.By the order of the State Government, dated 29.7.2009, an amount of Rs.5,13,195/- was sought to be recovered from the petitioner as well as one Uthirapathy, Head Constable in equal proportion after giving show cause notices to them. Consequent on https://hcservices.ecourts.gov.in/hcservices/ the State Government's order, the first respondent issued show cause notices, dated 31.8.2009, asking them as to why they should not be recovered the amounts specified in the Government Order. 4.It is the case of the petitioner that such a show cause notice is invalid and there was no order of any court making them liable to pay certain amount. It is seen from the records that one S.Vanitha had filed an habeas corpus petition being H.C.P.No.1359 of 2008 before this court, seeking for a direction for production of the body and person of the petitioner's husband Sathiyaseelan, who was kept under illegal custody of the petitioner herein and the said Uthirapathy, Head Constable. The petitioner was arrayed as 6th respondent and Uthirapathy was arrayed as 7th respondent in the HCP. This Court after notice to the parties, finally rendered a finding that the 6th and 7th respondents in the HCP were responsible for the illegal detention of the said Sathiyaseelan. In paragraphs 13 and 14 of the said order, this court observed as follows: "13.From the materials available on record, it appears that the detenu was found in possession of illicit arrack (while as per the petitioner, it was only two packets, according to respondents 6 and 7 it was 20 packets) in front of Ayyappan Tea Stall at Ezhumahalur village, whereupon the respondents 6 and 7 have beaten him up and taken him into their custody. The story that the detenu was let off, since he was not a vendor is a make belief attempt made on the part of the respondents 6 and 7. Under Section 4(1)(a) of the T.N. Prohibition Act, even possession of illicit arrack is an offence and therefore, if it is true that the detenu was found in possession of illicit arrack, the respondents 6 and 7, should have arrested the detenu and should have produced him before the Magistrate for remand. But, instead this cock and bull story seems to have been cooked up by the respondents 6 and 7, as if they are so generous that they let the detenu off since he was not a seller of illicit arrack. The contention of the respondents 6 and 7 that the detenu has pointed out some liquor sellers, whereupon they have registered the cases against those sellers and let the detenu off also appears to be unbelievable. As has been rightly pointed out on the part of the petitioner, when the respondents 6 and 7 say that they have detained the detenu, he should have been discharged only as per the procedure contemplated under Section 59 of the Cr.P.C. Prima facie, there is ample material available on record to show that the respondents 6 and 7 have acted in a very high handed manner, as if they are above law and nobody is there to question them. https://hcservices.ecourts.gov.in/hcservices/ 14.Even the alleged story that the detenu ran from the running vehicle being driven by the 6th respondent appears to be cinematic and cannot be believed, since the detenu was tightly held by the 7th respondent, who was sitting as a second pillion rider. Even otherwise, since the respondents 6 and 7 are having the motor cycle, they could have very well chased and nabbed the detenu, who might only be running. The other story that on being let off/escape, the detenu was 'missing' also throws much doubt on the respondents 6 and 7 and the investigation so far conducted by other respondents seems to be shielding or protecting in all possible means the real culprits, making the petitioner to run from pillar to post for justice. Even applying the principle of 'last seen theory', since it is rather an admitted fact on the part of the respondents 6 and 7 also that they have taken the detenu into custody; the burden to explain his 'missing' squarely falls on them. As could be seen from the materials placed on record, at the first instance, the respondents 6 and 7 have maintained that the detenu escaped from the bike and later on, they have improved the version by saying that they themselves have let the detenu off, after he identified some illicit liquor sellers. In the counter affidavits, the respondents 6 and 7 have submitted that the detenu is not in their custody and the HCP filed against them is not maintainable, but all such aspects have to be investigated in depth, without any bias by the CBCID, since all the materials placed on record, as of now, are pinpointing only towards the respondents 6 and 7, with a cloud of suspicion, making them answerable for the 'missing' of the detenu." (Emphasis added) 5.The State Government preferred an appeal before the Supreme Court in S.L.P. (Criminal) No.4462 of 2009. The Supreme Court dismissed the SLP on 22.7.2009 and confirmed the order of the Division Bench. 6.It was thereafter, the court granted compensation to the deceased wife and the minor children. Therefore, it cannot be said that the petitioner was not aware of either the tort liability imposed on the State or that he was not heard on the question of his responsibility for the incident on the death of Sathiyaseelan. Pursuant to the judgment, the District Collector sanctioned the amount of Rs.5,13,195/- to the wife and the minor children of Sathiyaseelan towards compensation by proceedings, dated 29.7.2009. It was thereafter, the State Government issued the impugned Government Order in G.O.Ms.No.698, Public (Law & Order-A) https://hcservices.ecourts.gov.in/hcservices/ Department, dated 29.7.2009. 7.In paragraph 10 of the order, the State Government ordered as follows: "10.As per the decision of the Government in para 5 above the DGP is requested to take action for recovering the amount of Rs.5,13,195/- from the pay of the erring police officials viz., Tvl.Nagarajan, Sub Inspector of Police, and Uthirapathy, Head Constable in equal proportion after giving show cause notices to them in this regard." 8.It is only pursuant to the same, show cause notice was given to the petitioner. It is for the petitioner to give an appropriate explanation. In any event, when there is liability fixed on the State for payment of compensation, the petitioner, who was directly responsible for the State's liability to pay the amount, is also bound to make good the loss. Under the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, recovery of loss sustained by the State can also be inflicted as a penalty after giving a show cause notice. 9.In the present case, the petitioner cannot be heard to complain that he was not heard on his responsibility in the matter of grant of compensation. On the contrary, the petitioner was the 6th respondent in HCP No.1359 of 2008 and he was also represented his case before the Division Bench of this court, which order has also been confirmed by the Supreme Court. Therefore, the question of infraction of principle of natural justice may not arise. The State is also well within its right to recover the amount of loss sustained by it towards the payment of compensation. 10.It must be necessary to refer to certain decisions of the Supreme Court regarding the public law tort liability of the State and the power of the Court to award compensation. The Supreme Court in its decision reported in National Human Rights Commission Vs. State of Arunachal Pradesh and another AIR 1996 SC 1234: (1996) 1 SCC 742 emphasised the duty of the State in protecting the life and liberty of human being. The following passage found in paragraph 20 is usefully quoted: "Para 20: We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or https://hcservices.ecourts.gov.in/hcservices/ otherwise." 11.As to the competency of granting compensation for any human right violation by Courts, the Supreme Court had in more than one occasion dealt with the said issue. The Supreme Court in its decision reported in Nilabati Behera Vs. State of Orissa AIR 1996 SC 1234 : (1993) 2 SCC 746 held that the Award of compensation in a proceeding under Article 32 by the Supreme Court or under Article 226 by the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights. It is held that the defence of sovereign immunity does not apply in such a case even though it may be available as a defence in private law in an action based on tort. It is held further that the award of damages by the Supreme Court or the High Court in a writ proceeding is distinct from and in addition to the remedy in private law for damages. It is one mode of enforcing the fundamental rights by this Court or High Court. Reliance is placed upon Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which says, anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 12.The Supreme Court in the decision reported in D.K.Basu V. State of W.B. reported in 1997 (1) SCC 416 held as follows: "Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty-bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for https://hcservices.ecourts.gov.in/hcservices/ damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizens, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit." (Emphasis added) 13.Further, the Supreme Court in its decision reported in People's Union for Civil Liberties V. Union of India and another AIR 1997 SC 1203 : (1997) 3 SCC 433 held as follows: "It is not clear whether our Parliament has approved the action of the Government of India ratifying the said 1966 Covenant. Indeed, it appears that at the time of ratification of the said Covenant in 1979, the Government of India had made a specific reservation to the effect that the Indian legal system does not recognize a right to compensation for victims of unlawful arrest or detention. This reservation has, of course, been held to be of little relevance now in view of the decision in Nilabati Behera and in D.K.Basu." 14.Once again the question about recovery of money from a guilty Government servant responsible for the public tort liability faced by the State came up for consideration by a Division Bench of this Court presided by A.P.Shah, Chief Justice (as he then was) vide its judgment in T.Loganathan Vs. State Human Rights Commission, Tamil Nadu reported in 2007 (7) MLJ 1067. This Court after referring to various decisions of the Supreme Court held that there was no illegality in ordering recovery from the salary of the guilty Government servant if any liability is fell on the State. https://hcservices.ecourts.gov.in/hcservices/ 15.In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vvk To 1.Superintendent of Police, Nagapattinam District. 2.Director General of Police, (Law and Order), Chennai-600 004. 3.The Secretary, Government of Tamil Nadu, Public Department (Law and Order), Fort St. George, Chennai-600 009. 1 cc to Mr.S.Sadasharam, Advocate, Sr.No.1379 ORDER IN W.P.NO.77 of 2010 RSY {CO} TP/12.1.2010. https://hcservices.ecourts.gov.in/hcservices/