IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.4657, 9674, 9675 and 11119 of 2009 and M.P.Nos.2,2,2 and 2 of 2009, 1,1 and 1 of 2011 C.Udayakumar .. Petitioner in W.P.No.4657 of 2009 H.Thangappan .. Petitioner in W.P.No.9674 of 2009 S.Murugesan .. Petitioner in W.P.No.9675 of 2009 T.Gurupatham .. Petitioner in W.P.No.11119 of 2009 Vs. 1.State of Tamil Nadu, rep by its Secretary to Government, Home (Police) Department, Secretariat, Chennai-9. 2.The Commissioner of Police, Tirunelveli City, Tirunelveli. .. Respondents in all writ petitions W.P.No.4657 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records pertaining to the order passed by the first respondent in G.O.(D)No.88, Home (Pol.16) Department, dated 28.01.2009 and the consequential order passed by the second respondent in his proceedings Na.Ka.No.G2/14797/2008 – Order No.66/2009, dated 16.2.2009 insofar as the petitioner is concerned and quash the same. W.P.Nos.9674, 9675 and 11119 of 2009 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records pertaining to the orders passed by the second respondent in his proceedings No.K1/PR 40/02 u/r 3 (b), No.K1/PR 42/02 u/r 3(b) and No.K1/PR 38/02 u/r 3(b), dated 29.4.2004 respectively, the order passed by the first respondent in G.O.(D)No.88, Home (Pol.16) Department, dated 28.01.2009 and the consequential order passed by the second respondent in his proceedings Na.Ka.No.G2/14797/2008 – Order No.66/2009, dated https://hcservices.ecourts.gov.in/hcservices/ 16.2.2009 insofar as the petitioners are concerned and quash the same. For Petitioners : Mr.P.Athi Veerarama Pandian (in all W.Ps) For Respondents : Mr.V.Subbiah, Spl.G.P. (in all W.Ps) COMMON ORDER In these four writ petitions, the petitioners were policemen, who were originally attached to Palayamkottai Crime Police station. All the four petitioners have challenged the order of recovery, dated 16.2.2009 issued by the Commissioner of Police, Tirunelveli in recovering a sum of Rs.7143/- from each one of them pursuant to the order issued by the State Government in G.O.(D)No.88, Home Police Department, dated 28.1.2009. By the said order, the State Government ordered for recovery of total sum of Rs.50000/- paid to one Mayil Achari, S/o.Sudalaimuthu of Eral in Thoothukudi District as an interim relief and as directed by the National Human Rights Commission (NHRC), New Delhi. 2.Pursuant to the direction given by the NHRC, the State Government had paid an amount of Rs.50,000/- to Mayil Achari and had accepted the recommendation of the Director General of Police and ordered recovery of the amount on equal basis from all seven persons attached to Palayamkottai Crime Police Station. 3.The petitioner in W.P.No.4657 of 2009 was an Head Constable. The petitioner in W.P.No.9674 of 2009 was a Grade I Police Constable. The petitioner in W.P.No.9675 of 2009 was again a Head Constable and the petitioner in W.P.No.11119 of 2009 was also an Head Constable. Apart from these four petitioners, there were also three others, i.e., Govindan, an Inspector of Police, Raghunath, a Sub Inspector of Police and Sudalaikannu, a Grade I Police Constable. Those three persons are not before this court. In the case of Govindan, who had reached the age of superannuation on 30.6.2006, he was not allowed to retire. In the case of Raghunath, Sub Inspector of Police, the entire amount was recovered from his salary and credited to the Government account. In the case of Sudalaikannu, Grade I Police Constable, an action is being initiated for recovery of the amount from his salary. But, however only these four petitioners have come to this court. 4.The first writ petition was admitted on 15.4.2009. Pending the writ petition, an interim stay of recovery was ordered. In that case, it was claimed by the petitioner that when a charge memo, dated 22.5.2002 was given to him under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules in respect of the same incident, i.e., acting in collusion with the Inspector Govindan, Gurupadam, Head Constable and Sudalaikannu, Grade I Police Constable and accepting an illegal gratification for releasing one Mayil Achari, who was alleged to have been in https://hcservices.ecourts.gov.in/hcservices/ possession of Stolen Idol, he challenged the said charge memo before the State Administrative Tribunal in O.A.No.3989 of 2002. The charge was quashed by the Tribunal by a judgment, dated 6.8.2002. Therefore, in respect of the same incident, no action can be taken. But however, the said Mayil Achari made a complaint to the NHRC, dated 3.1.2003 alleging that all seven persons in the station had foisted a false case of idol theft and pressurized him to part with Rs.40000/- and hence he asked for refund of the amount. The NHRC after issuing notice to the Chief Secretary to the Government of Tamil Nadu found that the State Government itself had taken an action and the Commissioner of Police, Tirunelveli had submitted a report. In the report, he had stated that the charges have been framed against all the police concerned and some of them had gone to Tribunal challenging the same. The Deputy Commissioner of Police (Crime and Traffic) had conducted an oral enquiry. After completing the examination of prosecution witnesses, the matter was posted for defence witness. The Enquiry Officer found that in case of Udayakumar, because of tribunal's action, the punishment proceedings in P.R.No.41/2002 was dropped. But in respect of others, some of the charges were held proved and all the police personnel were awarded punishment of postponement of increment for a period of one year without cumulative effect and the punishment was also implemented. Taking note of this fact, the Commission had issued a show cause notice, dated 26.4.2007, which reads as follows: “The Commission has considered entire record. Prima facie, a case of violation of human rights of the complainant has been established. In the opinion of the Commission, it is a fit case for grant of immediate interim relief to the complainant for violation of his human rights, which have been established in the report submitted by the Commissioner of Police, Tirunelveli City, Tamil Nadu. Accordingly, the Commission directs issue of notice u/s 18(3) of the Protection of Human Rights Act, 1993 to the State of Tamil Nadu through its Chief Secretary, to show cause as to why the Commission should not recommend interim relief to the complainant.” The Commission directed Rs.50000/- to be paid as compensation. It is after the said payment, an individual responsibility was fixed by G.O.Ms.No.88, Home Department, dated 28.1.2009 and by consequential order dated 16.2.2009. 5.In respect of M/s.H.Thangappan and S.Murugesan, the writ petitions were admitted on 26.5.2009 and an interim stay was granted. Aggrieved by the interim stay, the State Government had filed a vacate stay application in M.P.No.1 of 2011 together with supporting counter affidavit, dated 1.6.2011. In the counter affidavit, it was stated that all the police personnel excepting Udayakumar, the petitioner in W.P.No.4657 of 2009, an enquiry was held and charges were proved. They were also imposed with penalty of postponement of increment for one year without cumulative effect. They have not challenged that order. When once the misconduct of the policeman were proved and the NHRC had also fixed https://hcservices.ecourts.gov.in/hcservices/ the liability, there is no case for interference with the order of recovery, which has been proportionately fixed on them. 6.The fourth writ petition was filed by one Gurupatham, which was admitted on 23.6.2009 and it was directed to be posted along with the earlier writ petitions. Pending the writ petition, this court has granted an interim stay. Aggrieved by the interim stay, the State Government has filed M.P.No.1 of 2011 for vacating the stay. In view of the interconnectivity among all writ petitions, they were grouped together and a common order is passed. This court also directed the original file to be produced. Accordingly, the learned Special Government Pleader Mr.V.Subbiah, produced the original files for perusal by this court. 7.Excepting the case of the petitioner in W.P.No.4657 of 2009, in all other cases, in respect of the misconduct, an enquiry has been held and minor penalty has been imposed. Therefore, for any loss caused to the State, the policemen who were responsible for the loss are also bound to re-compensate the State for the same. In such case, it would not amount to any double penalty and no further opportunity need be given. Since the petitioners never challenged the penalty imposed on them and the State was mulct with the liability to pay Rs.50000/-, they can always proportionately recover the amount from all the policemen who were responsible. 8.The case of the petitioner in W.P.No.4657 of 2009 does not stand on different footing. merely because the charge memo was quashed by the tribunal. A perusal of the order passed by the Tribunal, dated 6.8.2002 in O.A.No.3989 of 2002 shows that the Tribunal even at the time of charge sheet gone into the merits of the case and held that the petitioner did not play any part in the arrest of Mayil Achari. Such an action on the part of the Tribunal was wholly uncalled for when a group of police attached to a particular police station were all tried for similar charge, in respect of one person alone the Tribunal cannot quash the charge memo even before the trial. Even otherwise, if the charge memo was logically proceeded, it could have resulted only the punishment of postponement of increment as was given to others. But, for the recovery of money due to the loss by the State, no exception can be taken. Hence this court is not inclined to entertain the writ petitions. 9.As to how an under trial should be treated came to be considered by the Supreme Court. The Supreme Court had given several guidelines known as 11 Commandments in D.K. Basu v. State of W.B., reported in (1997) 1 SCC 416. In paragraphs 44, 45 and 54 it had observed as follows: “44.The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different https://hcservices.ecourts.gov.in/hcservices/ purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. 45.The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim — civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. ..... 54.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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, 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.” 10.The Supreme Court in Central Bureau of Investigation Vs. Kishore Singh and others reported in (2011) 6 SCC 369 raised a question in paragraph 1, which is as follows: "... What should be done to policemen who 'bobbitt' a person in a police station and think that they can get away with it? That is the question to be decided in this case." 11.In the very same judgment, in paragraph 19, it had observed as follows: 19.Also all the accused are guilty of totally flouting and throwing to the winds the directives of this Court in D.K. Basu vs. State of West Bengal 1997 (1) SCC 416 (vide paragraph 35). That decision outlaws third degree methods in police stations, but it is well known that third degree methods are still widely used in many of our police stations, as this case reveals...." 12.Thereafter, in paragraph 24, the Supreme Court held as follows: 24.In our opinion, policemen who commit criminal acts deserve harsher punishment than other persons who commit such acts, because it is the duty of the policemen to protect the people, and not break the law themselves. If the protector becomes the predator civilized society will cease to exist. As the Bible says "If the salt has lost its flavour, wherewith shall it be salted? (Matthew 5, Mark 9.50 and Luke 14.34-35)", or as the ancient Romans used to say "Who will guard the praetorian guards?" 13.This court while considering a similar circumstance where https://hcservices.ecourts.gov.in/hcservices/ the salaries recovered on the basis of the NHRC's directions, has held that such compensation is only an interim compensation and such policemen are bound to honour such an interim order and ultimately, if they succeed they can get back the amount from the State vide its judgment in A.Sundaram and two others Vs. NHRC, New Delhi and three others reported in 2010 (1) TLNJ 364 (Crl). 14.In the light of the above, all the four writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. Sd/- Deputy Registrar /true copy/ Sub Asst. Registrar. vvk To 1.The Secretary to Government, State of Tamil Nadu, Home (Police) Department, Secretariat, Chennai-9. 2.The Commissioner of Police, Tirunelveli City, Tirunelveli. 4 cc To Mr.P.Athi Veerarama Pandian, Advocate Sr 60565, 60566, 60525 & 60564 1 cc to The Govt. Pleader, SR 60438 W.P.Nos.4657, 9674, 9675 and 11119 of 2009 ss[co] gp/19.10 https://hcservices.ecourts.gov.in/hcservices/