M.Selvaraj v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NOs.19662 to 19665 of 2009andM.P.NOS.1,1,1 AND 1 OF 2009 AND 2,2,2 AND 2 OF 2009M.Selvaraj.. Petitioner in W.P.No.19662 of 2009R.Vijayan.. Petitioner in W.P.No.19663 of 2009P.Chellappan.. Petitioner in W.P.No.19664 of 2009K.Thangadurai.. Petitioner in W.P.No.19665 of 2009Vs.1.The State of Tamil Nadu, rep. by its Secretary to Government, Environment & Forest (FR SB) Department, Fort St. George, Chennai-9.2.The District Forest Officer, Kanyakumari Division, Nagercoil... Respondents in all the petitions These writ petitions are preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarito call for the records of the respondents 1 and 2 in connectionwith the impugned orders passed by them in G.O.(D) No.64,Environment & Forest (FR9B) Department, dated 19.3.2008 and theimpugned charge memo in P2/12061/04, dated 30.7.2008 respectivelyand to quash the same.For Petitioner : Mr.Venkatramani, SC for Mr.V.ChockalingamFor Respondents : Mr.K.Rajasekar, GA COMMON ORDERHeard Mr.K.Venkatramani, learned Senior Counsel leading https://hcservices.ecourts.gov.in/hcservices/ Mr.V.Chockalingam, counsel appearing for the petitioners andMr.K.Rajasekar, learned Government Advocate (Forest), taking noticefor respondents and perused the records. 2.The first writ petitioner is the Forest Guard workingunder the Kulasekaran Range, Kanyakumari District. The second andthird writ petitioners are the Forest Watchers and the fourth writpetitioner is a Forester. All the four writ petitioners challengethe order in G.O.(D) No.64 Environment & Forest Department, dated19.03.2008 as well as the charge memo, dated 30.7.2008.3.The charge memos were framed under Rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal) Rules. The chargeagainst the four petitioners was that they took one watcher by nameRajendran, who was working in Keeriparai Division belonging to theTamil Nadu Rubber Corporation, on the night of 24.11.2003 under theleadership of a Forest Ranger of Azhagiyapandiapuram Range by nameSobidaraj and brought him from his colony. Since he refused to comealong with them, they forced him to go with them. The said watchmanwas found dead on 25.11.2003. 4.The matter was taken up to the National Human RightsCommission (NHRC) at New Delhi by a NGO by name Peoples Watch,Tamil Nadu. In response to the complaint made by the said NGO, theCommission recorded that nine forest officials were involved in thedeath of Rajendran. They were arrested by the CB CID. TheCommission invoked its power under Section 18(V) of the Protectionof Human Rights Act, 1993. Thereafter, a notice was issued to theChief Secretary to the Government of Tamil Nadu under Section 18(c). 5.In the show cause notice issued by NHRC, it was statedthat as to why the Commission should not recommend compensation tothe next kin of deceased Rajendran. The Director General of Police,Tamil Nadu and the Senior Superintendent of Police, KanyakumarDistrict were directed to report the status of the investigation.The second respondent, DFO, was directed to intimate whether anydepartmental proceedings were initiated after the arrest ofnegligent forest officials. 6.Thereafter, the Superintendent of Police, KanyakumariDistrict, by his communication, dated 20.2.2008, submitted that thedeceased Rajendran had five daughters and one son. His wife is alsosurviving. The third daughter of Rajendran one Lavanya wasappointed to the post of Watcher at Arasu Rubber Corporation inKeeriparai Division. His wife and two daughters Kumari Sheeja andKumari Anitha were being paid monthly pension. Pursuant to theinvestigation conducted by the CB CID, a criminal case wasregistered in connection with the death of Rajendran in Crime No.61of 2003 under Sections 147, 130(b), 341, 342, 364, 333, 328, 302and 301 r/w 149 IPC against 12 persons. After their arrest, acharge sheet was filed before the Sessions Judge at Nagercoil. 7.It was also stated that during investigation by the CB https://hcservices.ecourts.gov.in/hcservices/ CID Crime Branch, Tirunelveli, the petitioners were arrested alongwith five other officials. One Forest watcher and Forest Rangerwere absconding. They were also placed under suspension by thedepartment. A charge sheet was laid before the Sessions Court.Basing upon the said report and having found that human rights ofdeceased Rajendran was violated by the forest officials includingthe petitioners, it was recorded that departmental and criminalaction were taken against them. The State Government was directedto pay a sum of Rs.1 lakh as an interim relief within six weeksalong with the proof of payment. When this order was communicatedby the NHRC by its proceedings, dated 22.2.2008, the Governmentissued G.O.(D) No.64, Environment and Forests Department, dated19.3.2008, implementing the order of the NHRC, which was done byway of an interim relief. 8.In the said order, after making payment to the legalrepresentatives of the deceased Rajendran, in paragraph 6 of theorder, the Principal Chief Conservator of Forests was directed torecover the entire compensation from the individuals responsiblebesides taking disciplinary action as well as criminal action.Pursuant to the said order, the second respondent issued a chargememo, stating that the petitioners have neglected to dischargetheir duties and because of their conduct, there was a loss of Rs.1lakh to the State Government. Since the petitioners have gone tothe quarters of deceased Rajendran and subsequently, the saidRajendran died, his family was to be paid compensation of Rs.1lakh. Therefore, the petitioners were responsible for the saidincident and must bear the loss sustained by the State. 9.In Annexure III to the charge memo, reference was made tothe directive of the National Human Rights Commission, New Delhi,dated 22.2.2008 as well as G.O.(D) No.64, Environment and ForestDepartment, dated 19.03.2008. The petitioners were directed to givetheir explanation within 15 days' of the charge memo. Thepetitioners did not challenge the said charge memo immediatelyafter the issuance of the same. They have also not disclosedwhether they had sent replies pursuant to the charge memos. 10.In the meanwhile, it must be stated that the petitionerswere tried before the Sessions Judge, Kanyakumari Division atNagercoil in S.C.No.171 of 2005 and they were acquitted on theground that the prosecution has failed to prove the guilt of theeleven accused including the petitioners (A-8, A-5, A-4 and A-2)beyond all reasonable doubt. It is not stated whether any appealhas been filed against the said order of acquittal by the State. Inany event, the proceedings, dated 22.2.2008 issued by the NHRC isonly an interim order passed by the NHRC, New Delhi and they wereawaiting compliance report from the State Government. Thepetitioner after one year and two months after the charge memo wasgiven to them, have filed the present writ petitions.11.The learned Senior Counsel contended that the chargememo is vague. Since the basis of the charge memo is the AnnexureIII, in which the letters of the NHRC, New Delhi and the Government https://hcservices.ecourts.gov.in/hcservices/ Order in G.O.(D) No.64, Environment and Forest Department, dated19.03.2008 were made as its basis, they have chosen to attack theGovernment Order. Once the Government Order is successfullyassailed, the basis of the charge memo will disappear. It is astrange contention raised by the learned Senior Counsel. Instead ofsubmitting their explanation and facing the charge in a regulartrial, for unexplained reasons, they have moved this Court. In theguise of attacking the Government's Order, they are in effectattacking the NHRC directive, which directed the State Governmentto pay interim relief to the family of deceased Rajendran. If thepetitioners want to attack the report of the NHRC, which formedbasis of the State Government's Order, even now it is not too latefor them to move the NHRC by getting themselves impleaded and seekfor modification of its order. 12.In the present case, under Section 18(c), notice wasgiven to the Chief Secretary of the Government of Tamil Nadu and aninterim compensation of Rs.1 lakh was given. It is the StateGovernment, which after implementing the interim relief as directedby the NHRC, has come forward and issued the consequential orderand also directed the recovery of amount from the concernedindividuals. It is not stated as to whether any amount has beenrecovered from the petitioners so far even though the order itselfis one year and two months old. 13.On the contrary, the second respondent has framedcharges under Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules for fixing appropriate liabilities onthe petitioners. It is not open to the petitioners to challengethe said charge memo solely on the ground that they were not heardby the NHRC. The contention that they were not heard cannot beaccepted because of the precise reason that the charge memo itselfwas given by the second respondent and the petitioners shouldexplain their conduct which led to the death of deceased Rajendran.The letter of the NHRC and the State Government's order were onlyshown as its basis. It is for the petitioners to explain thelegality or enforceability of such order before departmentalauthorities. Instead of doing so, they have come forward tochallenge the impugned charge memo itself. 14.It is true that they were acquitted by the criminalcourt in respect of criminal charges by the criminal court, butthat does not absolve them from being dealt with by the department.In the present case, the charge against the petitioners were thatthey failed to discharge their duties and they have also violatedthe rules. It is not clear as to how this would have bearing on theacquittal made by the criminal court. 15.The petitioner placed reliance upon the judgment of theSupreme Court in Capt.M.Paul Anthony Vs. Bharat Gold Mines Ltd. andanother reported in JT 1999 (2) SC 456 and G.M.Tank Vs. State ofGujarat and another reported in JT 2006 (11) SC 36. The learnedcounsel for the petitioners contended that once there was anacquittal, then there cannot be any further proceedings by the https://hcservices.ecourts.gov.in/hcservices/ department. This argument cannot be countenanced by this Court.16.The contention that the employer is bound by theacquittal by the Criminal court and they are precluded fromconducting any enquiry was never accepted by the Supreme Court. TheSupreme Court in Indian Overseas Bank, Anna Salai and another Vs.P.Ganesan and others reported in 2008 (1) SCC 650, in paragraphs23 and 24 observed as follows:"23. ...What was necessary to benoticed by the High Court was not onlyexistence of identical facts and the evidencein the matter, it was also required to takeinto consideration the question as to whetherthe charges levelled against the delinquentofficers, both in the criminal case as also thein disciplinary proceedings, were same.Furthermore it was obligatory on the part ofthe High Court to arrive at a finding that thenon-stay of the disciplinary proceedings shallnot only prejudice the delinquent officers butthe matter also involves a complicated questionof law.24. The standard of proof in adisciplinary proceedings and that in a criminaltrial is different. If there are additionalcharges against the delinquent officersincluding the charges of damaging the propertybelonging to the Bank which was not thesubject-matter of allegations in a criminalcase, the departmental proceedings should nothave been stayed."17.The second contention that the charges are vague alsocannot be accepted because the charges were based upon a firm orderof NHRC followed by the State Government. This Court is notinclined to quash the charge memo either on the ground that thepetitioners were acquitted by the criminal court or on the groundthat the charges were vague. If the petitioners were not heard byNHRC, even now it is not too late for them to approach the NHRC forappropriate relief. 18.It must be necessary to refer to certain decisions ofthe Supreme Court regarding the public law tort liability of theState and the power of the Court to award compensation. They are asfollows:-The Supreme Court in its decision reported in National Human RightsCommission Vs. State of Arunachal Pradesh and another AIR 1996 SC1234: (1996) 1 SCC 742 emphasised the duty of the State inprotecting the life and liberty of human being. The followingpassage found in paragraph 20 is usefully quoted: https://hcservices.ecourts.gov.in/hcservices/ "Para 20: We are a countrygoverned by the Rule of Law. OurConstitution confers certain rights onevery human being and certain other rightson citizens. Every person is entitled toequality before the law and equalprotection of the laws. So also, no personcan be deprived of his life or personalliberty except according to procedureestablished by law. Thus the State isbound to protect the life and liberty ofevery human being, be he a citizen orotherwise."19.As to the competency of granting compensation for anyhuman right violation by Courts, the Supreme Court had in more thanone occasion dealt with the said issue. The Supreme Court in itsdecision reported in Nilabati Behera Vs. State of Orissa AIR 1996SC 1234 : (1993) 2 SCC 746 held that the Award of compensation in aproceeding under Article 32 by the Supreme Court or under Article226 by the High Court is a remedy available in public law based onstrict liability for contravention of fundamental rights. It isheld that the defence of sovereign immunity does not apply in sucha case even though it may be available as a defence in private lawin an action based on tort. It is held further that the award ofdamages by the Supreme Court or the High Court in a writ proceedingis distinct from and in addition to the remedy in private law fordamages. It is one mode of enforcing the fundamental rights by thisCourt or High Court. Reliance is placed upon Article 9(5) of theInternational Covenant on Civil and Political Rights, 1966 whichsays, anyone who has been the victim of unlawful arrest ordetention shall have an enforceable right to compensation.20.The Supreme Court in the decision reported in D.K.BasuV. State of W.B. (supra) held as follows:"Thus, to sum up, it is now awell-accepted proposition in most of thejurisdictions, that monetary or pecuniarycompensation is an appropriate and indeedan effective and sometimes perhaps theonly suitable remedy for redressal of theestablished infringement of thefundamental right to life of a citizen bythe public servants and the State isvicariously liable for their acts. Theclaim of the citizen is based on theprinciple of strict liability to which thedefence of sovereign immunity is notavailable and the citizen must receive theamount of compensation from the State,which shall have the right to beindemnified by the wrongdoer. In theassessment of compensation, the emphasis https://hcservices.ecourts.gov.in/hcservices/ has to be on the compensatory and not onpunitive element. The objective is toapply balm to the wounds and not to punishthe transgressor or the offender, asawarding appropriate punishment for theoffence (irrespective of compensation)must be left to the criminal courts inwhich the offender is prosecuted, whichthe State, in law, is duty-bound to do.The award of compensation in the publiclaw jurisdiction is also without prejudiceto any other action like civil suit fordamages which is lawfully available to thevictim or the heirs of the deceased victimwith respect to the same matter for thetortious act committed by thefunctionaries of the State. The quantum ofcompensation will, of course, depend uponthe peculiar facts of each case and nostraitjacket formula can be evolved inthat behalf. The relief to redress thewrong for the established invasion of thefundamental rights of the citizens, underthe public law jurisdiction is, thus, inaddition to the traditional remedies andnot in derogation of them. The amount ofcompensation as awarded by the Court andpaid by the State to redress the wrongdone, may in a given case, be adjustedagainst any amount which may be awarded tothe claimant by way of damages in a civilsuit."(Emphasis added)21.Further, the Supreme Court in its decision reported inPeople's Union for Civil Liberties V. Union of India and anotherAIR 1997 SC 1203 : (1997) 3 SCC 433 held as follows:"It is not clear whether our Parliamenthas approved the action of the Government ofIndia ratifying the said 1966 Covenant. Indeed,it appears that at the time of ratification ofthe said Covenant in 1979, the Government ofIndia had made a specific reservation to theeffect that the Indian legal system does notrecognize a right to compensation for victims ofunlawful arrest or detention. This reservationhas, of course, been held to be of littlerelevance now in view of the decision inNilabati Behera and in D.K.Basu."22.Once again the question about recovery of money from aguilty Government servant responsible for public tort liabilityfaced by the State came up for consideration by the Division Benchof this Court presided by A.P.Shah, the Chief Justice (as he then https://hcservices.ecourts.gov.in/hcservices/ was) vide its judgment in T.Loganathan Vs. State Human RightsCommission, Tamil Nadu reported in 2007 (7) MLJ 1067. This Courtafter referring to various decisions of the Supreme Court held thatthere was no illegality in ordering recovery from the salary of theguilty Government servant if the Human Rights Commission imposesliability on the State. 23.The Supreme Court in very many decisions had forewarnedthe High Courts in entertaining petitions against charge memo. Someof them may be quoted usefully. The Supreme Court in its decisionin State of U.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179dealt with the power of the Court in dealing with a charge memo atthe show cause stage and the following passage found in paragraph 9will make the position clear:9. The High Court was not justified inquashing the show cause notice. When a showcause notice is issued to a government servantunder a statutory provision calling upon him toshow cause, ordinarily the government servantmust place his case before the authorityconcerned by showing cause and the courts shouldbe reluctant to interfere with the notice atthat stage unless the notice is shown to havebeen issued palpably without any authority oflaw. ‘The purpose of issuing show cause noticeis to afford opportunity of hearing to thegovernment servant and once cause is shown it isopen to the Government to consider the matter inthe light of the facts and submissions placed bythe government servant and only thereafter afinal decision in the matter could be taken.Interference by the court before that stagewould be premature, the High Court in ouropinion ought not have interfered with the showcause notice.24.The Supreme Court vide judgment in Special Director v.Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5 observedas follows:5. This Court in a large number of caseshas deprecated the practice of the High Courtsentertaining writ petitions questioning legalityof the show-cause notices stalling enquiries asproposed and retarding investigative process tofind actual facts with the participation and inthe presence of the parties. Unless the HighCourt is satisfied that the show-cause noticewas totally non est in the eye of the law forabsolute want of jurisdiction of the authorityto even investigate into facts, writ petitionsshould not be entertained for the mere askingand as a matter of routine, and the writ https://hcservices.ecourts.gov.in/hcservices/ petitioner should invariably be directed torespond to the show-cause notice and take allstands highlighted in the writ petition. Whetherthe show-cause notice was founded on any legalpremises, is a jurisdictional issue which caneven be urged by the recipient of the notice andsuch issues also can be adjudicated by theauthority issuing the very notice initially,before the aggrieved could approach the court.Further, when the court passes an interim orderit should be careful to see that the statutoryfunctionaries specially and specificallyconstituted for the purpose are not denuded ofpowers and authority to initially decide thematter and ensure that ultimate relief which mayor may not be finally granted in the writpetition is not accorded to the writ petitionereven at the threshold by the interim protectiongranted.25.Further, the Supreme Court in the judgment relating toUnion of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC28 in paras 13 to 16 held as follows:13. It is well settled by a series ofdecisions of this Court that ordinarily nowrit lies against a charge-sheet or show-causenotice vide Executive Engineer, Bihar StateHousing Board v. Ramesh Kumar Singh (1996) 1SCC 327, Special Director v. Mohd. GhulamGhouse (2004) 3 SCC 440, Ulagappa v.Divisional Commr., Mysore (2001) 10 SCC 639,State of U.P. v. Brahm Datt Sharma(1987) 2 SCC179, etc.14. The reason why ordinarily a writpetition should not be entertained against amere show-cause notice or charge-sheet is thatat that stage the writ petition may be held tobe premature. A mere charge-sheet or show-cause notice does not give rise to any causeof action, because it does not amount to anadverse order which affects the rights of anyparty unless the same has been issued by aperson having no jurisdiction to do so. It isquite possible that after considering thereply to the show-cause notice or afterholding an enquiry the authority concerned maydrop the proceedings and/or hold that thecharges are not established. It is wellsettled that a writ petition lies when someright of any party is infringed. A mere show-cause notice or charge-sheet does not infringe https://hcservices.ecourts.gov.in/hcservices/ the right of anyone. It is only when a finalorder imposing some punishment or otherwiseadversely affecting a party is passed, thatthe said party can be said to have anygrievance.15. Writ jurisdiction is discretionaryjurisdiction and hence such discretion underArticle 226 should not ordinarily be exercisedby quashing a show-cause notice or charge-sheet.16. No doubt, in some very rare andexceptional cases the High Court can quash acharge-sheet or show-cause notice if it isfound to be wholly without jurisdiction or forsome other reason if it is wholly illegal.However, ordinarily the High Court should notinterfere in such a matter.26.It must be noted that the order of the NHRC is only aninterim order. Since it is in the nature of an interim relief andthe State which was vicariously liable was represented before itthrough its Chief Secretary. The direction to the petitioners' tocompensate the loss is always possible under the relevant servicerules. Even otherwise if they establish in the departmental enquirythat they are innocent, the amounts can always be refunded to them.27.In the light of the above, the writ petition standsdismissed. However, there will be no order as to costs.Consequently, the connected miscellaneous petitions are alsodismissed.vvkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government, of Tamil Nadu, Environment & Forest (FR SB) Department, Fort St. George, Chennai-9.2.The District Forest Officer, Kanyakumari Division, Nagercoil.+1 cc to Mr. V. Chockalingam, Advocate, SR.No.56118.PRE DELIVERY ORDER INW.P.NOs.19662 to 19665 OF 2009bv(co)ar/30.10.2009.