IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 OP.No. 27168 of 2002(H) ---------------------------------- PETITIONER(S): ---------------------------- K.K.BALASUBRAMANIAN, S.I. OF POLICE, KONGAD, PALAKKAD DISTRICT. BY ADV. MR.T.R.ASWAS MR.ANILKUMAR SREEDHARAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, PALAKKAD. 3. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. 4. THE NATIONAL HUMAN RIGHTS COMMISSION, NEW DELHI. R1 TO R3 BY GOVERNMENT PLEADER MR.DILIP MOHAN R4 BY ADVS.MR.N.SANKARA MENON, SMT.PRABHA R.MENON. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.47191/2002 IN OP. NO.27168/2002 DISMISSED 17/02/2010 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.H1/25032/96 MM DTD. 5.5.1996 OF THE SUPERINTENDENT OF POLICE, MALAPPURAM. P2:- COPY OF THE ORDER PR 65/96 MM DTD. 13.8.97 ISSUED BY SUPDT. OF POLICE MALAPPURAM. P3:- COPY OF THE ORDER NO.A2/2/APPEAL/98/ TR DTD. 5.3.1998 ISSUED DY.S.P. OF POLICE, THRISSUR. P4:- COPY OF THE ORDER G.O. RT. 1135/2002/HOME DTD. 25.5.02 OF THE GOVERNMENT. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 27168 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2010 J U D G M E N T The petitioner was a Sub Inspector of Police. While he was working as Assistant Sub Inspector of Police at Nilambur Police Station on 03.05.1996, the Circle Inspector of Police deputed the petitioner to investigate a case of unnatural death of the Vazhikadavu Police Station in Crime No.45/1996, in which a lady aged 27 years was found dead in her house. The petitioner proceeded to the scene of occurrence and in the process of preliminary investigation, recovered a packet of poison and a glass used for consuming the poison, which he entrusted with the Head Constable who accompanying him for the safe custody of those articles. Thereafter the petitioner returned to his station at Nilambur. It appears that the husband of the deceased lady was brought to the police station, who consumed the very same poison and died while in police W.P.(C)No. 27168 of 2002 -2- custody. Disciplinary proceedings were initiated against the petitioner for negligence. Ultimately. Ext.P2 order was passed imposing on the petitioner the punishment of barring of increment for a year with cumulative effect. Petitioner filed an appeal against Ext.P2 order before the D.I.G. of Police, which was dismissed by Ext.P3 order. Petitioner filed a further appeal to the Inspector General of Police. While that appeal was pending, the petitioner received Ext.P4 order by which the Government directed recovery of an amount of Rs.25,000/- from the petitioner being half of the amount of Rs.50,000/- ordered by the Human Rights Commission, New Delhi to be paid to the legal heirs of the person who died in police custody. Petitioner is challenging Ext.P4. Petitioner challenges Ext.P4 primarily on the ground of violation of principles of natural justice. Firstly he would submit that before the Human Rights Commission he was not a party and he is unaware of the same. Secondly he would contend that prior to Ext.P4 he was not given any notice or hearing. W.P.(C)No. 27168 of 2002 -3- 2. A counter affidavit has been filed by the 1st respondent stating that before passing Ext.P4 the petitioner was given notice and Ext.P4 was passed after examining the reply filed to the show cause notice issued to the petitioner. 3. The learned counsel for the petitioner submits that subsequent to filing of the O.P., the appeal filed by the petitioner has been allowed and he has been exonerated. 4. I have considered the contentions in detail. 5. The fact that the petitioner was not a party to the proceedings before the National Human Rights Commission, New Delhi may not be a reason to set aside Ext.P4. Before the National Human Rights Commission the State was a party and the National Human Rights Commission directed the State to pay compensation to the legal heirs of the deceased who died in police custody. If that death in police custody was on account of the negligence of the petitioner there is nothing wrong in the Government recovering from the petitioner proportionate W.P.(C)No. 27168 of 2002 -4- amount of the compensation, to which he is liable on account of his negligence. But in Ext.P4 what has been referred to as reference Nos.4 & 5 are show cause notice issued to Sri. George Mathew and reply filed by Sri. George Mathew. Petitioner is not George Mathew. Therefore there is an obvious mistake. The 1st respondent has not produced any evidence to prove that notice has been issued to the petitioner. Petitioner has disputed the same also. Therefore on that ground I am inclined to quash Ext.P4. Accordingly Ext.P4 is quashed. The Government is directed to reconsider the matter after issuing notice to the petitioner and after affording an opportunity of being heard to the petitioner as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. S. SIRI JAGAN JUDGE shg/