IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.27281 to 27283 of 2009 and M.P.NOs.1,2,1,2,1 and 2 OF 2009 A.Sundaram .. Petitioner in W.P.No.27281 of 2009 N.Sidhan .. Petitioner in W.P.No.27282 of 2009 P.Jayavel .. Petitioner in W.P.No.27283 of 2009 Vs. 1.National Human Rights Commission, New Delhi. 2.State of Tamil Nadu, rep. By the Secretary to Government, Public (Law and Order-A) Department, Fort St. George, Chennai-600 009. 3.The Director General of Police, Chennai-600 004. 4.The Inspector General and Commissioner of Police, Salem City, Salem-636 007. .. Respondents in all the writ petitions These writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the entire records in G.O.Ms.No.855 Public (Law and Order-A) Department, dated 22.07.2008 on the file of the second respondent and consequent proceedings in CPO No.699/2009, C.No.J1/288/9434/2009 dated 16.11.2009 on the file of the fourth respondent and to quash the same. For Petitioners : Mr.D.Shivakumaran For Respondents : Mr.A.Arumugam, Spl.G.P. For RR2 to 4 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER Heard both sides. 2.The three writ petitioners have filed the present writ petitions, seeking to challenge the order of the State Government (R2) made in G.O.Ms.No.855, Public (Law and Order-A) Department, dated 22.7.2008 and the consequent proceedings issued by the fourth respondent, the Inspector General and Commissioner of Police, dated 16.11.2009. 3.By the impugned order, the petitioners were directed jointly to make good a sum of Rs.50,000/-, which is paid by way of compensation by the State towards the death of one Muniraj, son of Mr.Muthappa, a remand prisoner, who died in the strong room of Mohan Kumaramangalam Government Medical College Hospital, Salem on 24.12.2000. On the basis of the Government order, dated 22.7.2008 issued by the State Government, the fourth respondent issued the consequential proceedings, apportioning the liability on the petitioners equally. 4.The petitioner in W.P.No.27281 of 2009 is a Head Constable presently working at the Control Room and the petitioners in the other two writ petitions were Grade I Constables working in the Central Crime Branch and Fainance Police Station respectively. On 24.12.2000, the three petitioners were in-charge of the strong room at the Mohan Kumaramangalam Government Medical College Hospital. When they were in-charge of the said strong room, due to their negligence and carelessness, one Muniraj, son of Muthappa, who was a remand prisoner, committed suicide by hanging himself. Because of the death of the said remand prisoner, proceedings under 145 PSO was initiated. The District Collector accepted and forwarded the findings given by the officer to the State Government. 5.The State Government accepted the findings and directed the Director General of Police by G.O.Ms.No.1156, Public (Law & Order), dated 10.10.2006 to issue a departmental warning. The report sent by the Revenue Divisional Officer was also taken before the National Human Rights Commission (for short NHRC). The NHRC issued show cause notices, dated 30.8.2007 and 17.6.2008. The NHRC found that the death of Muniraj in the judicial custody was due to negligence of the police personnel, who are in-charge of the strong room and that it was a fit case where immediate interim relief should be given to the next kin of the deceased Muniraj. 6.Accordingly, a notice was issued to the Chief Secretary of the Government of Tamil Nadu under Section 18(3) of the Protection of Human Rights Act, 1993, asking him to show cause as to why an interim relief should not be given to the family of the deceased. Therefore, the Commission directed the State Government to provide an interim relief to the next kin of the deceased. The State Government, accepting the direction of the NHRC, sanctioned https://hcservices.ecourts.gov.in/hcservices/ compensation of Rs.50000/- to the next kin of the deceased Muniraj as a special case and also to recover the amount of compensation from the erred police personnel. It is pursuant to this direction, the fourth respondent issued a consequential proceedings, ordering recovery of equal amount that too on installment basis. 7.The petitioners have come forward to challenge the said order on the ground that the State Government had not given any opportunity and no charge memos were issued to the petitioners. It was also stated that the petitioners have also reserved a right to move NHRC, if necessary. 8.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 otherwise." 9.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. https://hcservices.ecourts.gov.in/hcservices/ 10.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 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 https://hcservices.ecourts.gov.in/hcservices/ the claimant by way of damages in a civil suit." (Emphasis added) 11.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." 12.Once again the question about recovery of money from a guilty Government servant responsible for public tort liability faced by the State came up for consideration by the 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 the Human Rights Commission imposes liability on the State. 13.Therefore, there is no difficulty for the respondents in ordering recovery, since payment of interim compensation was a loss to the State. Such a pecuniary loss can always be directed to be recovered from the persons, who are responsible. Even otherwise, a direction to pay compensation is only an interim compensation and the matter is still pending before the NHRC. Now that, the petitioners are aware of pendency of proceedings before the NHRC and it is for them to get themselves impleaded and convince the Commission that there is no tort liability on them to pay any compensation and they cannot be accused of any negligence. 14.As of now, it is only a preliminary finding. In case, the Commission decides to accept the stand of the petitioners, they can always get back the amount recovered from their salary as the State cannot expect them to lose any amount without any liability to be fixed on them. The petitioners cannot complain about the issuance of warning since already the State Government accepted the report of the RDO as forwarded by the District Collector to initiate departmental action against petitioners. The petitioners must be glad that they are let off with a warning, which can hardly be considered as a penalty. The present arrangement for recovery is only pending final orders on the interim direction given by the https://hcservices.ecourts.gov.in/hcservices/ NHRC. Therefore, it is not a fit case for the grant of any relief. 15.In the light of the above, all the three writ petitions will stand dismissed. No costs. Consequently, connected MPs also stand dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The National Human Rights Commission, New Delhi. 2.The Secretary to Government, Public (Law and Order-A) Department, Fort St. George, Chennai-600 009. 3.The Director General of Police, Chennai-600 004. 4.The Inspector General and Commissioner of Police, Salem City, Salem-636 007. 3 cc To Mr.D.Shivakumaran, Advocate, SR.877. 1 cc To Mr.a.Arumugam, Special Govt. Pleader, SR.770. W.P.NOs.27281 to 27283 of 2009 TRM(CO) RVL 19.01.2010 https://hcservices.ecourts.gov.in/hcservices/