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Judgment
K. Chandru, J.—Heard both sides.
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.
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 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.
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:
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. u/s 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 u/s 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.
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.
The State Government preferred an appeal before the Supreme Court in SLP (Criminal) No. 4462 of 2009. The Supreme Court dismissed the
SLP on 22.7.2009 and confirmed the order of the Division Bench.
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) Department, dated 29.7.2009.
In paragraph 10 of the order, the State Government ordered as follows:
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.
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.
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.
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, 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.
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 Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others,
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.
The Supreme Court in the decision reported in D.K. Basu Vs. State of West Bengal, 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 the claimant by
way of damages in a civil suit.
Further, the Supreme Court in its decision reported in People''s Union for Civil Liberties Vs. Union of India and another, 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.
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 v. 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.
In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand
dismissed.