BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29/09/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.12316 of 2010
and
M.P.(MD)NOS.1 AND 2 OF 2010
T.Vijayakumar .. Petitioner
Vs.
1.Madhavi
2.State Human Rights Commission-
Tamiladu,
"Thiruvarangam",
143, P.S.Kumarasamy Raja Salai,
Greenways Road,
Chennai-28.
3.The Secretary to Government,
Home Department,
Fort St. George,
Chennai.
4.The Superintendent of Police,
Kanyakumari District,
Nagercoil. .. Respondents
This writ petition has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of certiorari to call for
the records relating to the recommendation of the second respondent in S.H.R.C.
No.8024 of 2008, dated 05.04.2010 and the Government Order G.O.(D)No.760, dated
26.07.2010 accepting the recommendations by the third respondent and the
consequential order passed by the fourth respondent in C.No.C3/21539/2010, dated
31.08.2010 and to quash the same.
!For Petitioner ... Mr.R.Joseph Thankaraj
^For Respondents... Mr.S.C.Herold Singh, GA
(Takes notice for RR3 and 4)
- - - -
:ORDER
The petitioner has come forward to challenge an order of the second
respondent State Human Rights Commission, Tamil Nadu (for short SHRC) in
S.H.R.C.No.8024 of 2008, dated 5.4.2010 and the Government order in
G.O.(D)No.760, dated 26.07.2010 and the consequential order passed by the fourth
respondent, dated 31.8.2010 and seeks to set aside the same.
2.The petitioner is working as a Sub Inspector of Police, Anjugramam
Police Station in Kanyakumari District. The first respondent herein who is the
wife of one Simon of Pattanvilai Kavialoore, Kattathurai Post aged 65 years,
filed a complaint with the SHRC complaining about the petitioner in not
receiving her complaint and not taking action on the complaint lodged against
culprits responsible for the unlawful and illegal demolition of compound wall of
her house. It was stated by her that on 20.08.2008, she noticed her neighbours
came with deadly weapons along with their henchmen and demolished the compound
wall standing between her house and that of her neighbours. On the same day
around 8.00 a.m., she went to Thakkalay police station to lodge a complaint. Two
of the culprits were also present there at that time. The first respondent
requested the petitioner to arrest them. But the petitioner not only refused to
receive her complaint, but also threatened her that he would register a case
against her. She was asked to immediately go out of the police station.
Thereafter, she made a complaint to the Superintendent of Police, Kanyakumari
District (R4) and the Deputy Superintendent of Police, Thakkalay. She also sent
a petition to the Chief Minister’s grievance cell. Taking the complaint on file,
notice was issued to the petitioner.
3.The petitioner claimed that on 20.8.2008, he was on bandobust duty at
the bus stand under the supervision of the Inspector of Police, Thakkaly from
morning to evening relating to a road roko launched by the Communist Party
workers at Thukkalay. He was not at all present in the police station. The
evidence was recorded by the Commission. The first respondent examined herself
and one Sasikumar and four documents were marked as Exs.P.1 to P.4. The
petitioner examined himself on his side and eight documents were marked as
Exs.R.1 to R.8. The Commission found that he was putting a bald and evasive
denial before it. The petitioner produced some photocopy of documents for the
first time while standing in the witness box. He came up with a story that a
petition was given by one Murugesan @ Rajan against the first respondent.
Further, a petition was sent by the first respondent against the opposite party
by post. Their petitioners were closed as not pressed. The Commission refused to
believe the story set up by the writ petitioner. The Commission had also found
that the petitioner did not produce original records such as CSR Register, Daily
situation report, pocket note book. Even the originals of the xerox copies
filed were also not produced before the Commission. The suit about which
reference was made (O.S.No.293 of 2008) in which an exparte direction was
obtained against the first respondent’s son and the same was done under
suspicious circumstances. Ex.R.3 produced by the petitioner said to have been
signed by the first respondent was not believed as the first respondent herself
was present before the Commission and denied the writing of Ex.R.3. The
Commissioner found that the story of alibi given by the petitioner cannot be
believed. The first respondent was made to run pillar to post even though the
petitioner had an obligation to take her complaint, register it and proceed with
the investigation as it had disclosed cognizable offence. Therefore, the
Commission, by its order, dated 5.4.2010 recommended as follows:
“(i)The Government of Tamilnadu shall pay a sum of Rs.30,000/- (Rupees Thirty
Thousands only) by way of compensation to the petitioner namely MADHAVI.
(ii)The Government shall recover the said sum of Rs.30,000/- (Rupees Thirty
Thousands only) from the respondent namely Vijayakumar, Sub-Inspector of Police,
as per the Rules and Regulations.
(iii)The copy of the order shall be attached with the Personal File/Service
Register of the respondent.”
A time limit of two months was give for compliance. A copy of the same was
marked to the Secretary, Home Department, Government of Tamil Nadu (R3).
4.Upon the receipt of the recommendations by the SHRC, the third
respondent Home Secretary called for a report from the Superintendent of Police,
Kanyakumari District (R4) which was also sent on 09.05.2010. Thereafter, remarks
were also called from the Director General of Police, which was also sent to
them by a communication, dated 25.5.2010. Thereafter, the State Government
passed the impugned order in G.O.(D)No.760, Home Department, dated 26.07.2010,
wherein the Superintendent of Police, Kanyakumari District (R4) was authorized
to draw a sum of Rs.30,000/- (the sanctioned amount) and to disburse the same to
the first respondent as ordered by the Commission. In paragraphs 4,7 and 8, it
was stated as follows:
“4.The Director General of Police, Tamil Nadu is also requested to recover the
sum of Rs.30,000/- (Rupees thirty thousand only) from the salary of
Thiru.Vijayakumar Sub Inspector of Police on installment basis for the violation
of Human Rights and remit the amount in the Government Account under intimation
to the Government.
….
7.The Director General of Police Chennai is also directed to attach the order of
the State Human Rights Commission in the reference first read above in the
Service Register of the respondent Thiru.Vijayakumar Sub Inspector of Police.
8.The Director General of Police is also requested to take disciplinary action
against the Sub Inspector of Police.”
5.Pursuant to the said direction, the fourth respondent paid the said
amount to the first respondent as ordered by the Commission and also directed
Rs.30,000/- to be recovered from the salary of the petitioner in 60 equal
installments at the rate of Rs.500/- per month and also to credit it to the
Government account. The petitioner has come forward to challenge the
recommendations made by the SHRC as well as the Government’s order directing
such payment and for ordering recovery from his salary and the further action in
this writ petition.
6.The contention of the petitioner was that the findings of the Commission
was mutually contradictory and perverse. He was not in the station from 8.00
a.m. till 12.00 noon. It was also stated that the entire records were brought to
the Commission at the instance of the petitioner through the officer of the
police station. But only xerox copies were marked through the petitioner. There
was also a civil dispute pending between the first petitioner and her
neighbours. The Commission’s order was based on surmises and conjectures. The
complaint sent by the first respondent was a false complaint. The consequential
order of third respondent State was also illegal.
7.However, this court is not inclined to accept the said submission. A
perusal of the SHRC’s finding clearly shows that the SHRC had given an
opportunity to the writ petitioner as well as the first respondent. The SHRC
also took note of the bald denial made by the petitioner at the first instance.
The documents produced did not inspire the confidence of the SHRC. The
petitioner’s attack against the SHRC’s findings is uncharitable to say the
least. The petitioner having harassed the first respondent by not even taking
the complaint sent by the first respondent on file, made the old woman to run
around helplessly. If there was a civil dispute as alleged by the petitioner,
then nothing prevented him to give a reply to the first respondent after
receiving her complaint. His attempt by producing Ex.R.3 was clearly disproved
since the first respondent who was present before the Commission had disowned
it. Having started with bald and evasive denial, the petitioner attempted to
produce documents which was disbelieved by the Commission. He had also failed to
produce the original documents to the satisfaction of the Commission. This Court
is not inclined to interfere with the recommendations of the Commission.
8.The State Government had consulted both the Director General of Police
and the Superintendent of Police, Kanyakumari before passing the impugned order
and had decided to compensate the victim who is the first respondent. Once the
State Government had agreed with the recommendations of the Commission and
decided to implement the order, then the Commission’s order is final. In this
case, the petitioner had an opportunity of defending himself before the
Commission. Therefore, it does not require any further hearing by the State on
the findings of the Commission. Being a person covered by the Tamil Nadu Police
Subordinate Service (D&A) Rules, the loss caused to the State had to be re-
compensated by a Government servant. Since the Government had not ordered for
any higher compensation and merely implemented the Commission’s order, the
question of further hearing the petitioner on the quantum also will not arise.
9.Regarding power of the Commission to grant compensation, the Supreme
Court in The Supreme Court in its decision reported in National Human Rights
Commission Vs. State of Arunachal Pradesh and another reported in 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.”
10.The power to recover the amount from the delinquent Government servant
after the State compensates a victim is also referred to in the judgment in D.K.
Basu v. State of W.B., reported in (1997) 1 SCC 416. In paragraphs 40, 42, 44,45
and 54, the Supreme Court had held as follows:
“40. Ubi jus, ibi remedium.-There is no wrong without a remedy. The law wills
that in every case where a man is wronged and endamaged he must have a remedy. A
mere declaration of invalidity of an action or finding of custodial violence or
death in lock-up, does not by itself provide any meaningful remedy to a person
whose fundamental right to life has been infringed. Much more needs to be done.
……
42.Article 9(5) of the International Covenant on Civil and Political Rights,
1966 (ICCPR) provides that “anyone who has been the victim of unlawful arrest or
detention shall have enforceable right to compensation”. Of course, the
Government of India at the time of its ratification (of ICCPR) in 1979 and made
a specific reservation to the effect that the Indian legal system does not
recognise a right to compensation for victims of unlawful arrest or detention
and thus did not become a party to the Covenant. That reservation, however, has
now lost its relevance in view of the law laid down by this Court in a number of
cases awarding compensation for the infringement of the fundamental right to
life of a citizen. (See with advantage Rudul Sah v. State of Bihar7; Sebastian
M. Hongray v. Union of India8; Bhim Singh v. State of J&K9; Saheli, A Women’s
Resources Centre v. Commr. of Police10.) There is indeed no express provision in
the Constitution of India for grant of compensation for violation of a
fundamental right to life, nonetheless, this Court has judicially evolved a
right to compensation in cases of established unconstitutional deprivation of
personal liberty or life. (See Nilabati Behera v. State2)
……
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 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 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.” (Emphasis added)
11.When the Commission’s recommendations were accepted by the State, the
natural corollary is that the concerned delinquent Government servant had to
abide by the Government order. There is no further scope for challenging the
orders on grounds which are not germane to the issue on hand.
12.This Court vide its judgment in D.Unguswamy and another Vs. The
Secretary to Government, Home Department and others reported in
MANU/TN/7161/2007 = 2007 (1) TCJ 450 upheld a similar order passed by the
Commission and the consequent order of recovery by the Government.
13.A division bench of this court presided by A.P.Shah, CJ. (as he then
was) in T.Loganathan Vs. State Human Rights Commission, Tamil Nadu and another
reported in 2007 (7) MLJ 1067 had also upheld a similar order passed by the SHRC
and implemented by the State.
14.Very recently, this court in A.Sundaram and two others Vs. National
Human Rights Commission, New Delhi and three others reported in 2010 (1) TLNJ
364 (Criminal) took a similar view.
15.But, however a learned judge of this court in Rajesh Das, I.P.S. Vs.
Tamil Nadu State Human Rights Commission reported in 2010 (5) CTC 589 has held
in paragraph 41 as follows:
41. To sum up:-
(i)What is made under Section 18 of the Protection of Human Rights Act by
the State Human Rights Commission is only a recommendation and it is neither an
order nor an adjudication.
(ii)Such a recommendation made by the State Human Rights Commission is not
binding on the parties to the proceeding, including the Government.
(iii)But, the Government has an obligation to consider the recommendation
of the Commission and to act upon the same to take forward the objects of the
Human Rights Act, the International Covenants and Conventions in the back drop
of fundamental rights guaranteed under the Indian Constitution within a
reasonable time.
(iv)In the event of the Government tentatively deciding to accept the
recommendation of the State Human Rights Commission holding any public servant
guilty of human rights violation, the Government shall furnish a copy of the
report of the Commission to the public servant concerned calling upon him to
make his explanation, if any, and then pass an appropriate order either
accepting or rejecting the recommendation of the Commission.
(v)Until the final order is passed by the Government on the recommendation
of the Commission, neither the complainant(s) nor the respondent (s) in the
human rights cases can challenge the recommendation of the commission as it
would be premature except in exceptional circumstances.
(vi)On the recommendation of the Human Rights Commission, if the
Government decides to launch prosecution, the Government have to order for
investigation by police which will culminate in a final report under Section
173 of the Code of Criminal Procedure.
(vii)On the recommendation of the Human Rights Commission, if the
Government decides to pay compensation to the victims of human rights violation,
the Government may do so. But, if the Government proposes to recover the said
amount from the public servant concerned, it can do so only by initiating
appropriate disciplinary proceeding against him under the relevant service
rules, if it so empowers the Government.”
16.This court is not inclined to agree with the said observation since the
said judgment did not refer to the previous decisions of the Supreme Court or of
this Court on the very same issue. In the present case, there is no necessity to
hear the delinquent officer concerned before accepting the SHRC’s report as the
Government is bound to give effect to the SHRC’s recommendations. In case of any
difficulty, the SHRC itself can move this court for enforcement of its order
under Section 18(2) for the grant of appropriate direction. Even otherwise, if
the SHRC’s recommendation is accepted by the State Government, the aggrieved
individual will have no locus standi to attack both the Government Order as well
as the recommendations of the Commission which was agreed by the appropriate
Government. By virtue of Section 28(2), the State Government is bound to place
the report of the Commission before the State legislature along with the
Memorandum of action taken or proposed to be taken on the recommendation of the
Commission. In case of non acceptance of its recommendation, it has to give
reasons.
17.In the present case, there is no other power with the State Government
to repudiate the report of the Commission. On the other hand, the State
Government had accepted the recommendation of the SHRC. Therefore, it had become
binding. The learned Judge in the Rajesh Das’s case (cited supra) in paragraph
41(iv) did not refer to Section 28(2) of the Human Rights Act nor there was any
reference to the other decisions under the said Act. Likewise, the findings in
paragraph 41(vii), there need not be any disciplinary action to be initiated
afresh since the relevant service rule itself provides for the recovery from the
pay of the Government servant for the loss sustained by the State. It is not a
case of recovery of money due to any penalty imposed on a Government servant,
wherein Rule 3(a) of the Tamil Nadu Police Subordinate Service Rules may come
into operation. On the other hand, the State Human Rights Commission had
quantified the compensation and mulcted a vicarious liability on the State. The
State had accepted its liability and had also ordered to recover the amount as
held by the Supreme Court in D.K.Basu case (cited supra).
18.If Rajesh Das’s case (cited supra) is accepted, then it will become a
paradise of remedies for the delinquent Government servant not once, but three
times. First before the Commission, second before the State Government which had
accepted the Commission’s report and third before any amount were to be
recovered pursuant to acceptance of report of the Commission by the State
Government. On the other hand, neither the Protection of Human Rights Act, 1993
nor the relevant service rule contemplated such multiple opportunities that too
for a person who had violated law with impugnity. Such undue sympathies or
liberal approach on this issue will only further embolden a delinquent
Government servant to commit further human right violations with impugnity. The
concept of natural justice is not immune from restrictions nor it is an
inscrutable concept. It has to be applied to fact situation. It is not clear as
to how the petitioner can be said to be aggrieved about the Government order and
the consequent recovery when he had the full opportunity of placing his case
before the SHRC which is a statutory body mandated to protect the human rights
of its citizens.
19.In view of the above, the contentions raised by the petitioner are
misconceived. Accordingly, the writ petition will stand dismissed. However,
there will be no order as to costs. Consequently, connected miscellaneous
petitions stand closed.
vvk
To
1.State Human Rights Commission-
Tamiladu,
“Thiruvarangam”,
143, P.S.Kumarasamy Raja Salai,
Greenways Road,
Chennai-28.
2.The Secretary to Government,
Home Department,
Fort St. George,
Chennai.
3.The Superintendent of Police,
Kanyakumari District,
Nagercoil.