S.Chandrasekaran v. The Secretary to Govt., Public (Law and Order) E Dept., Fort St.George, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.11.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.12599 of 2009 andM.P.Nos.1 and 2 of 2009S.Chandrasekaran ... PetitionerVs1.The Secretary to Govt., Public (Law and Order) E Dept., Fort St.George,Chennai -9.2.The Director General of Police, Chennai -4.3.The Joint Commissioner of Police, South Zone, Chennai City Police, Chennai -8. ... RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of certiorari, calling for the records of therespondents 1 to 3 in connection with the impugned order ofrecovery passed by them in Letter No.7804/L&O-E/2002-5 dated11.07.2006, RC No.139930/ Con.3(1)/06 dated 19.07.2006 and RCNo.S.Bill(S)/106335/ 08/SZO20/09 dated 7.1.2009 respectively andquash the same.For Petitioner : Mr.M.MuthappanFor Respondents: Mr.R.Neelakantan,G.AO R D E RHeard both sides.2.The petitioner is an Inspector of Police attached to theCentral Crime Branch, Chennai, Egmore. He filed the present writpetition seeking to challenge the orders dated 11.07.2006,19.07.2006 and 07.01.2009 issued by the respondents. 2. By the order dated 11.07.2006, the State Governmentdirected the second respondent – Director General of Police toindicate the gravity of involvement of five policemen including thepetitioner and the proportionate amount to be recovered from eachof them towards the total amount of Rs.3,80,000/- paid to oneTmt.Meena. Subsequently, a letter dated 19.07.2006 was sent by thesecond respondent DGP to the Additional Commissioner of Police,Chennai to indicate the proportionate amount to be recovered fromeach of the policemen, who were responsible for the death of oneWilson at E-2 Royapettah Police Station on 22.06.1993. 3. The third respondent Joint Commissioner of Police upon https://hcservices.ecourts.gov.in/hcservices/ receipt of this communication ordered recovery of amounts from thepetitioner as well as other policemen. The petitioner's liabilitywas fixed at Rs.76,000/-. A further direction was given to recoverthe amount in 38 instalments @ 2000/- per month and the recoverywas to start from February 2009. Challenging the same, thepetitioner has filed the present writ petition. 4. This Court after notice to the learned Government Advocategranted an interim stay till 16.07.2009. Subsequently, the staywas not extended. When the matter came up today before this Court,the learned counsel for the petitioner submitted that thepetitioner was not given any notice before the recovery and theimpugned order is opposed to the principles of natural justice. Thesecond contention raised by the learned counsel for the petitionerwas that after an enquiry under Police Standing Order 145, a chargememo was issued to the petitioner and a criminal case was alsoregistered. In the criminal case, the petitioner was acquitted inS.C.No.122 of 1998 on 05.08.1998. In so far as the disciplinaryproceedings are concerned, it had ended in awarding a punishment ofreduction in pay by two stages for a period of two years withcumulative effect. However, the petitioner had challenged it beforethe Tribunal in O.A.No.3649 of 1999. The Tribunal by an order dated04.10.2001 had set aside the punishment and remanded the matter forfresh disposal. Thereafter, the petitioner filed a ReviewApplication before the Tribunal. The Tribunal by an order dated22.01.2002 allowed the Review Application and had set aside theproceedings by cancelling the remit order. 5. In view of the fact that the petitioner had escaped fromthe criminal case as well as from the departmental proceedings,there was no further liability on the petitioner in sharing theburden along with other policemen. This Court is unable to agreewith the submission made by the petitioner. 6. It is seen from the records that on account of the death ofher husband Wilson in the police custody, one S.Meena had filed awrit petition before this Court being W.P.No.14879 of 1994. In thesaid writ petition, she had claimed a compensation of Rs.3,00,000/-towards custodial assault, torture and murder of her husband andalso for a direction to the respondents 1 to 5 for initiatingdisciplinary action against respondents 7 to 11 and for furtherreliefs. 7. K.P.Sivasubramaniam,J. who heard the matter in his finalorder in paragraph 71 gave his findings which is as follows:-"71. As a result of the above analysis, I have nohesitation in accepting the reasonings and the findingsrendered by the P.A. to the Collector. He has rightlydealt with the evidence in a judicious manner. Aftereschewing the evidence of victim's mother and uncle asinterested witnesses, he has characterised the evidenceof Maragatham and Nalini as independent and reliablewitnesses. The evidence of the Doctor who conductedpost-mortem also confirms that the death was ultimately https://hcservices.ecourts.gov.in/hcservices/ due to the injuries. I have also independentlyconsidered the evidence and I find no reasons to differfrom the findings of the enquiry under Clause 145 ofthe P.S.O. As stated earlier in the case of custodialdeath, the Supreme Court had held in 1995 (4) SCC 262,that the police officials alone can explain thecircumstances in which a person in their custody haddied."8. In the said writ petition, the petitioner was arrayed asrespondent No.7 and he was represented by a counsel before thisCourt. Even in that proceedings, the petitioner had contended aboutthe subsequent acquittal made by the criminal court. A furthercontention was raised regarding the payment of compensation.Rejecting the said submission, this Court came to the conclusionthat the petitioner entitled to get the compensation of a sum ofRs.4,15,000/- by further adding a sum of Rs.15,000 towards funeraland other incidental expenses. The total compensation was fixed atRs.4,30,000/-. Deducting a sum of Rs.50,000/- which was alreadypaid, the respondents were finally directed to pay a total sum ofRs.3,80,000/- to the petitioner. It is at that stage the learnedGovernment Pleader who appeared for the State sought for adirection to enable the Government to recover the amounts from theparty respondents, namely, respondents 7 to 11. This Court heldthat while the responsibility of the state was to initially pay theamount, but it is also open to them to recover the same from theparty respondents, which obviously included the petitioner herein.The learned counsel appearing for the petitioner fairly stated thatno appeal was filed by his client against the said order and thatorder has become final. 9. When the petitioner was heard before this Court in apublic tort liability towards the death of a person in the lock upand ultimately this Court had granted compensation, there is noquestion of any further hearing to be extended to the petitioner.This Court had specifically held that it was open to the State torecover the amounts from the salary of the petitioner and otherpolicemen. Therefore,the contention that they should have beenheard before passing any recovery order does not arise. The othercontention that the departmental proceedings were quashed by theTribunal and he was acquitted in criminal Court need not be afactor, which will enable the petitioner to resist the claim forpayment of compensation. The payment of compensation arose out ofa tort liability of the State in which the petitioner also had ajoint responsibility in compensating for such tortious acts. Asthey were heard before this Court already, it is not open to themto urge before this Court that the impugned order was made withoutjurisdiction. 10. This Court in the case filed by S.Meena had already dealtwith the scope of power under Article 226 of the Constitution ofIndia in granting compensation in cases of custodial torture anddeath at the hands of the authorities. In fact this Court hadspecifically referred to the judgment of the Supreme Court in https://hcservices.ecourts.gov.in/hcservices/ D.K.Basu Vs. State of West Bengal reported in AIR (1997) SC 610. Inthat case, the Supreme Court had categorically held that in case ofany violation of the guidelines laid down therein, which included acivilised treatment in police lockups, compensation can be orderedand amounts can be recovered from the concerned GovernmentServants. The Court has also further directed that even contemptproceedings can be initiated against such police personnel who areresponsible for committing such custodial tortures. 11. Therefore, there is no case made out by the petitioner.Hence, the writ petition will stand dismissed. No costs.Consequently, connected miscellaneous petitions are closed.svkiSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Govt., Public (Law and Order) E Dept., Fort St.George, Chennai -9.2.The Director General of Police, Chennai -4.3.The Joint Commissioner of Police, South Zone, Chennai City Police, Chennai -8.1 cc To Mr.T.Ayngaraprabhu, Advocate, SR.592961 cc To The Government Pleader, SR.59234W.P.No.12599 of 2009RS (CO)SS (23.11.2009)