Madras High Court
Abdul Sathar vs The Principal Secretary To Government on 25 July, 2017
Author: M.Venugopal
Bench: M.Venugopal, P.D.Audikesavalu
THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25.07.2017 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL AND THE HONOURABLE Mr. JUSTICE P.D.AUDIKESAVALU W.P.Nos.41791 of 2006, 6229 of 2009, 3861 of 2010, 7151 of 2010, 7152 of 2010, 16751 of 2010, 13164 of 2010, 24646 of 2010, 26496 of 2010, 28551 of 2010, 12823 of 2011, 14942 of 2011, 20045 of 2011, 20073 of 2011, 20883 of 2011, 20950 of 2011, 23997 of 2011, 27078 of 2011, 27079 of 2011, 28616 of 2011, 1870 of 2012, 6519 of 2012 and 19562 of 2013 and connected miscellaneous petitions in all Writ Petitions W.P.No.41791 of 2006 Abdul Sathar .. Petitioner Vs. 1.The Principal Secretary to Government, Home Department, Fort St. George, Chennai-600 009. 2.The Secretary to Government, Public Department, Fort St. George, Chennai-600 009. 3.The State Human Right commission, Rep. by its Acting Chairperson, Green Ways Road, Chennai-600 028. 4.Poovarasu ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records relating to the recommendation made in SHRC Case No.7347 of 2004 dated 03.08.2006 on the file of the third respondent and quash the same. For Petitioner : Mr.S.Kumarendran For Respondents : Mr.M.Elumalai Government Advocate for R1 and R2 Mr.M.Nagoormeeran for R3 * * * [Order of the Court was made by P.D.AUDIKESAVALU, J.] This batch of Writ Petitions assail the orders of the State Human Rights Commission directing recovery of the compensation amount directed to be paid by the State to the complainants (who are victims of violation of human rights) from the petitioners (who are Officers of the State and have been held responsible for the violation of those human rights of the victims). 2. S.Nagamuthu, J in Rajesh Das, I.P.S., -vs- Tamil Nadu State Human Rights Commission (order dated 27.08.2010 in W.P.Nos.21604 and 21607 of 2000), wherein similar relief had been sought, considered the question whether the Human Rights Commissions constituted under the Protection of Human Rights Act, 1993, have power of adjudication in the sense of passing an order which can be enforced proprio vigore and after analyzing the scheme of that enactment, was of the view that its provisions were pari materia with that of the Commissions of Enquiry Act, 1952, and came to the conclusion that such a Writ Petition filed by an Officer of the State was not maintainable as being pre-mature at that stage and succinctly set out the legal position as follows:- (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. 3. Subsequently, in T.Vijayakumar vs- Madhavi (order dated 29.09.2010 in W.P.(MD)No. 12316 of 2010), which was also a Writ Petition filed by an Officer of the State for similar relief, K.Chandru, J dissented with the views of S.Nagamuthu, J in the aforesaid case and held as follows:- 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. 4. Thereafter, when another similar Writ Petition came up before S.Nagamuthu, J in W.P. No. 41791 of 2006, on noticing the contrary views indicated supra, by order dated 09.07.2013, directed the Registry to place the papers before the Honble Chief Justice to answer the following questions:- "(1) Whether the principles stated in para 41 of Rajesh Das, I.P.S., v. Tamil Nadu State Human Rights Commission, 2010 (5) CTC 589 case are good in law? or (2) Whether the principles stated in T.Vijayakumar v. Madhavi and State Human Rights Commission, Tamil Nadu [W.P.(MD) No.12316 of 2010 dated 29.09.2010] in paragraphs 16 to 19 are good in law? " However, before the aforesaid reference has been answered by a Division Bench, another Writ Petition bearing W.P.No. 25614 of 2010 in Sankar vs- Member, State Human Rights Commission, Tamil Nadu for similar relief came to be heard by the First Bench of this Court comprising of Sanjay Kishan Kaul, CJ (as His Lordship then was) and Pushpa Sathyanarayana J, which was disposed by order dated 27.01.2016 in which it was held as follows:- 10. Coming to the larger issue raised by the learned counsel for the first respondent, the State Human Rights Commission, it is stated that the aggrieved parties, from the recommendations of the State Commission, are rushing to court and obtaining stay orders, even though the scheme of the Protection of Human Rights Commission Act, 1993, envisages that the recommendations have to be sent to the Government concerned together with the enquiry report and the Government in turn, has to act within a period of one month on receipt of the same. There is no doubt on the issue of the power of the State Human Rights Commission to make recommendations or grant interim relief. Learned counsel, thus, submits that the occasion to approach this Court really should not arise, except post the action taken by the State Government on the recommendation of the State Human Rights Commission. 11. Learned counsel for the third respondent in fact relies on a Judgment of the learned Single Judge of this Court in Rajesh Das, I.P.S vs. Tamil Nadu State Human Rights Commission, Chennai reported in (2010(5) CTC 589), where after discussing the same issue, the ratio is summed up in paragraph-41 as under: ''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. (emphasis supplied) (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. (emphasis supplied) 12. We are in complete agreement with the views expressed by the learned single Judge on this aspect which should be kept in mind in future proceedings seeking to assail the order of the State Human Rights Commission especially when the decision of the State Government post the recommendation is awaited. The same view has been reiterated by the First Bench comprising of Sanjay Kishan Kaul, CJ (as His Lordship then was) and R.Mahadevan J in M.Kamalakannan vs- Member, State Human Rights Commission, Tamil Nadu (order dated 17.10.2016 in W.P. No. 36022 of 2016). 5. We have examined in detail the aforesaid decisions of this Court and heard the learned Additional Advocate General and the learned counsel appearing for the parties with specific reference to the maintainability of these Writ Petitions. 6. Though the views of S.Nagamuthu, J in Rajesh Das, I.P.S., -vs- Tamil Nadu State Human Rights Commission (order dated 27.08.2010 in W.P. Nos. 21604 and 21607 of 2000), have been approved by the First Bench of this Court, it is, at the same time, noticed that K.Chandru, J in T.Vijayakumar vs- Madhavi (order dated 29.09.2010 in W.P.(MD)No. 12316 of 2010), has relied upon the following decisions in support of his contra views:- (i) Nilabati Behera -vs- State of Orissa (1993) 2 SCC 746) (ii) National Human Rights Commission vs- State of Arunachal Pradesh (AIR 1996 SC 1234: (1996) 1 SCC 742) (iii) D.K.Basu vs- State of W.B. (1997) 1 SCC 416) (iv) T. Loganathan vs- State Human Rights Commission, Tamil Nadu [(2007) 7 MLJ 1067 (DB)] (v) D.Unguswamy vs- The Secretary to Government, Home Department (Order dated 19.01.2007 in W.P. No. 41191 of 2002) (vi) A. Sundaram vs- National Human Rights Commission, New Delhi [(2010) (1) TLNJ 364 (Criminal] 7. A perusal of the decisions of the Honble Supreme Court of India in Nilabati Behera -vs- State of Orissa (1993) 2 SCC 746), National Human Rights Commission vs- State of Arunachal Pradesh (AIR 1996 SC 1234: (1996) 1 SCC 742) and D.K.Basu vs- State of W.B. (1997) 1 SCC 416) indicate that they were not cases where the orders of the Human Rights Commission were called in question as in the present batch of cases. The decisions of this Court in T. Loganathan vs- State Human Rights Commission, Tamil Nadu [(2007) 7 MLJ 1067 (DB)], D.Unguswamy vs- The Secretary to Government, Home Department (Order dated 19.01.2007 in W.P. No. 41191 of 2002) and A. Sundaram vs- National Human Rights Commission, New Delhi [(2010) (1) TLNJ 364 (Criminal], related to cases where similar reliefs had been sought and proceeded on the premise that the impugned orders of the Human Rights Commission were enforceable judicial orders. 8. Resultantly, we find that there is an apparent conflict of views on the issue by the following three orders of the Division Benches of this Court, viz., (i) T. Loganathan vs- State Human Rights Commission, Tamil Nadu [(2007) 7 MLJ 1067 (DB)] (ii) Sankar vs- Member, State Human Rights Commission, Tamil Nadu (order dated 27.01.2016 in W.P. No. 25614 of 2010 ) (iii) M.Kamalakannan vs- Member, State Human Rights Commission, Tamil Nadu (order dated 17.10.2016 in W.P. No. 36022 of 2016). 9. Hence, it has become necessary to resolve the divergence of judicial opinion set out supra. As pointed out by the decision of the Constitution Bench of the Hon'ble Supreme Court of India in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 (paragraph No.12) and reiterated by the Hon'ble Supreme Court of India in P.Suseela & Ors. V. University Grants Commission (2015) 8 SCC 129 (paragraph No.25), the 'Comity of Discipline', 'Probity' and 'Propriety' requires that the appropriate recourse would be to refer the matter to the Hon'ble Chief Justice of this Court for constituting a Full Bench to determine the following questions of Law:- (i) Whether the decision made by the State Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993, is only a recommendation and not an adjudicated order capable of immediate enforcement, or otherwise? (ii) Whether the State has any discretion to avoid implementation of the decision made by the State Human Rights Commission and if so, under what circumstances? (iii) Whether the State Human Rights Commission, while exercising powers under sub-clauses (ii) and (iii) of clause (a) of Section 18 of the Protection of Human Rights Act, 1993, could straight away issue orders for recovery of the compensation amount directed to be paid by the State to the victims of violation of human rights under sub-clause (i) of clause (a) of Section 18 of that enactment, from the Officers of the State who have been found to be responsible for causing such violation? (iv) Whether initiation of appropriate disciplinary proceedings against the Officers of the State under the relevant service rules, if it is so empowered, is the only permissible mode for recovery of the compensation amount directed to be paid by the State to the victims of violation of human rights under sub-clause(i) of clause(a) of Section 18 of the Protection of Human Rights Act, 1993, from the Officers of the State who have been found to be responsible for causing such violation? (v) Whether Officers of the State who have been found to be responsible by the State Human Rights Commission for causing violation of human rights under Section 18 of the Protection of Human Rights Act, 1993, are entitled to impeach such orders passed by the Commission in proceedings under Article 226 of the Constitution and if so, at what stage and to which extent? 10. Accordingly, the Registry is directed to place the papers in this batch of Writ Petitions before the Honble Chief Justice to consider the constitution of a Full Bench of Three Judges of this Court for the aforesaid purpose. (M.V., J.) (P.D.A., J.) 25.07.2017 Speaking Order / Non-speaking Order Index : Yes / No. Internet : Yes / No. r n s M.VENUGOPAL, J.
and P.D.AUDIKESAVALU, J.
r n s W.P.Nos.41791 of 2006, 6229 of 2009, 3861 of 2010, 7151 of 2010, 7152 of 2010, 16751 of 2010, 13164 of 2010, 24646 of 2010, 26496 of 2010, 28551 of 2010, 12823 of 2011, 14942 of 2011, 20045 of 2011, 20073 of 2011, 20883 of 2011, 20950 of 2011, 23997 of 2011, 27078 of 2011, 27079 of 2011, 28616 of 2011, 1870 of 2012, 6519 of 2012 and 19562 of 2013 and connected miscellaneous petitions in all Writ Petitions 25.07.2017