| SooperKanoon Citation | sooperkanoon.com/903998 |
| Subject | Constitution |
| Court | Chennai High Court |
| Decided On | Sep-13-2010 |
| Case Number | W.P.No. 5124 of 2003 |
| Judge | T.S.SIVAGNANAM, J. |
| Acts | Constitution of India - Article 226 |
| Appellant | The Secretary to Government Social Welfare and Nutritious Meal Programme Department. |
| Respondent | The Registrar, State Human Rights Commission.and ors. |
| Appellant Advocate | Mrs.M.Sneha, Adv. |
| Respondent Advocate | Mr.S.V.Karthikeyan, Adv. |
2. The petitioner is the Secretary to Government of Tamil Nadu, Social Welfare & Nutritious Meal Programme Department and the challenge is to an order passed by the State Human Rights Commission awarding a sum of Rs.1,10,000/- as compensation to the respondents 2 & 3 for the death of their minor son with a direction to the State Government to pay the compensation by stating that the State is vicariously liable for the act done by its employees.
3. The facts of the case are that; the third respondent is the wife of the second respondent and their son Velan aged about 2 years was under the care and custody of a Child Care Centre, in Sanipatti village, Dharmapuri District. The allegation is, on 10.01.2000 at about 12.00 noon, when their son Velan was at the Centre to have the nutritious meal provided by the State Government, the two aayas by name Tmt.Rukku wife of Gopal and Tmt.Baby wife of Arumugam are stated to have beaten the boy and thrown him out of the Centre and he fell on the steps at the entrance, as a result sustained grievous internal injuries. One Alamelu, whose house was near the Centre is stated to have seen the boy being beaten by the two ladies and throwing him. The parents got the news and thereafter, the boy was taken to Krishnagiri for treatment in a private hospital and on advise, he was shifted to Government hospital, Tirupathur and without responding to the treatment the child died on 17.01.2000.
4. A complaint was lodged by the second respondent before the Inspector of Police, Mathur Police Station and a case was registered against Tmt.Rukku and Tmt.Baby in Crime No.54/2000 for offence under Section 304 IPC. The respondents 2 & 3 filed a complaint before the State Human Rights Commission on 18.05.2000 and claimed compensation. The two aayas of the Centre were impleaded as respondents 2 & 3 and the Organizer of the Nutritious Meal Centre was impleaded as the third respondent and the District Collector, as fourth respondent in the complaint filed before the Commission. The Commission caused an enquiry into the matter and called for a report from the District Collector. The District Collector, Dharmapuri by communication sent during August 2000 stated that based on the criminal case, which has been registered and the subsequent arrest of the two employees, they were placed under suspension w.e.f 18.01.2000, and since the case was pending before the Criminal Court, further action could be taken on receipt of the Judgment from the Criminal Court.
5. A further report was also submitted by the District Collector on 21.11.2000, stating that the criminal case was being adjourned from time to time, as the accused Rukku and Baby did not appear before the Criminal Court.
6. The Commission after issuing notice to the respondents, proceeded to conduct the enquiry. The accused persons Tmt.Rukku and Tmt.Baby entered appearance through counsel and appear to have filed a counter contending that the child Velan had gained the required weight and therefore, he was not in the list of children, who were entitled to take the nutritious meal, however the respondents 2 & 3 herein insisted upon them to supply food to the child and since they refused to comply with the demand, a false complaint was lodged. The respondents 2 & 3 examined witnesses on their side, but the two accused persons though entered appearance through counsel abruptly failed to appear before the Commission, during the course of hearing and therefore, the Commission proceeded to decide the matter based on the available evidence. After analyzing the evidence on record, the Commission came to a conclusion that the said Tmt.Rukku and Tmt.Baby have assaulted the minor child Velan and his death is due to the said assault and therefore, awarded a compensation of Rs.10,000/- towards medical and other expenses and a sum of Rs.1,00,000/- as compensation to the respondents 2 & 3 for loss of life of their minor child. Further, the Commission held that the State is vicariously liable to pay the compensation, since that the two accused persons were low paid temporary employees of the Government. Aggrieved by such order passed by the Commission, the State has filed this writ petition.
7. The learned Government Advocate would contend that the Commission has no jurisdiction to issue a positive direction for payment of compensation; that the two accused persons were only temporary servants in a Child Care Centre and they cannot be held to be Government servants and the State cannot be held liable. It is further contended that the Criminal Court, after thoroughly analyzing the evidence on record, acquitted the said Tmt.Rukku and Tmt.Baby of the criminal charge and therefore, the order passed by the Commission, which has been rendered after a following a summary procedure is liable to be set aside.
8. The learned counsel appearing for the respondents 2 & 3 submitted that the said two accused persons were admittedly working as staff in the Child Care Centre at Sanipatti and were receiving salary from the petitioner department and therefore, the State cannot escape from its tortious liability; that the Criminal Court acquitted the said two persons only on benefit of doubt and the Judgment of the Criminal Court has no effect on the order passed by the Commission, which was admittedly rendered much earlier than the verdict of the Criminal Court. The Commission conducted a full-fledged enquiry examined witnesses, admitted documentary evidence and thereafter rendered a finding and it cannot be stated to be a summary procedure. The defence raised by the said two accused persons before the Commission was that the child had reached the required weight and therefore, his name was removed from the register was not established either before the Commission or before the Criminal Court and such defence raised by the accused persons was rightly rejected by the Commission. On the above grounds, the learned counsel prayed for dismissal of the writ petition.
9. I have carefully considered the submissions on either side and perused the materials available on record.
10. Before, I proceed to deal with the factual contentions, I propose to first consider the issue raised by the learned Government Advocate, as regards the scope and jurisdiction of the Commission to issue a positive direction for payment of compensation.
11. The Protection of Human Rights Act, 1993, (hereinafter referred to as the "Act") was enacted for the constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights and for matters connected therewith and incidental thereto. Chapter III of the Protection of Human Rights Act, 1993, deals with functions and powers of the Commission, Chapter IV deals with procedure to be adopted by the Commission and in terms of Section 29 of the Act, the powers under Sections 9 to 18 falling under Chapters II, III and IV of the Act shall apply to the State Commission as well. In terms of Section 13 of the Act, the Commission shall, while inquiring into complaints shall have all the powers of a civil court trying a suit under the Code of Civil Procedure including the power to summon and enforce the attendance of witnesses and examine them on oath; receive evidence on affidavits; issue commissions for the examination of witnesses or documents among other things. In terms of Section 14, the Commission may for the purpose of conducting any investigation utilize the services of any officer or investigation agency of the Central Government or State Government with the concurrence of the respective government as the case may be.
12. In terms of Section 17 of the Act, the Commission while inquiring into the complaints of violations of human rights, can call for information or report from the Government or any other authority subject to the exception provided for. After the inquiry, the steps to be followed by the Commission are enumerated in Section 18 of the Act. If the inquiry discloses the commission of violation of human rights or negligence, the Commission may recommend to the Government for initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person, Commission may recommend to the Government for grant of immediate interim relief to the victim or the member of the family. By Virtue of Protection of Human Rights (Amendment) Act, 2006, w.e.f. 13.09.2006, Section 18 stood amended and it specifically provided for recommendation to the concerned government to make payment for compensation or damages, to initiate proceedings for prosecution among other things. In terms of Sub-Section 5 of Section 18, as it stood prior to amendment the Commission shall send a copy of the inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall within a period of one month or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon. Thereafter, in terms of Sub-Section 6 of Section 18, the Commission shall publish its inquiry report together with the comments of the Government and action taken reports.
13. Thus, it is to be noted that the Commission has power to recommend to the Government for initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons. Though the statute does not contemplate issuance of a positive direction for granting compensation, it is to be noted that the Commission has been given wide powers of inquiry and the provisions of the Code of Civil Procedure are also made applicable. Thus, the inquiry cannot be brushed aside and stated to be a mere summary inquiry for ignoring the factual findings recorded by the Commission. The petitioner being a Welfare State cannot treat the Commission as a adversary, rather should take the report/recommendation/direction as a step towards achieving good and fair governance. Therefore, in the background of the powers conferred on the Commission, though there is a positive direction in the impugned order, it ought to be taken as a firm recommendation by the Commission to be acted upon to give relief and succor to the family of the victim. Therefore, in my view such recommendation cannot be ignored, but to be considered by the State in its proper prospective and the State cannot construe itself as an adversary to such proceedings or order.
14. Coming to the facts of this case, it is seen that from the analysis of the evidence placed before the Commission, the nature of injuries sustained by the Child cannot be disputed. The case of the complainant is, the two year old child was mercilessly beaten by the two aayas and thrown out of the Centre and he is stated to have fallen on steps at the entrance of the Centre. This fact is collaborated by the evidence of PW-2, Tmt.Alamelu, who saw the boy being beaten up. It is her version that when she questioned Tmt.Baby about her brutal act, she was told that since the boy was not her son, she cannot ask about it. PW-2 has spoken about the treatment given to the boy at Krishnagiri as well as Tirupathur. The respondents 2 & 3 were also examined before the Commission as PW-3 & 4 and they have also cogently spoken about the entire incident and as to how the child succumbed to the injuries. The Inspector of Police, Mathur Police Station, who was examined stated that a case has been registered in Crime No.54 of 2000 under Section 304 IPC, post-mortem has been conducted and thereafter a charge sheet has been laid on 29.02.2000 and the case is pending before the Session Court, Krishnagiri. The Doctor, who conducted the post-mortem was also examined as PW-1. The cause of the death has been noted as Septicemia, due to multiple fractures. The Doctor reserved his opinion pending receipt of the report of the viscera. Thus, it appears that the death is as a result of multiple fractures and injuries sustained by the boy, ultimately resulting in septicemia.
15. Before the Commission, the two accused persons have only stated that the boy had reached the optimum weight and his name was removed from the register of the children eligible for nutritious meal and since, they refused to provide food, the parents of the boy have lodged a false complaint. Though the accused persons entered appearance through counsel before the Commission and raised their objections, they failed to appear subsequently, they did not examine any witness nor cross examined the witness on the side of the complainant. Thus, the Commission proceeded to decide the matter on the available records and came to a conclusion that it was established that the two ladies are responsible for the brutal act. The order was passed by the Commission on 29.03.2002. As on the said date, the criminal case filed against the said Tmt. Rukku and Tmt.Baby was pending before the Session Court. The order of acquittal was passed by the Session Court on 22.04.2002 and the order of acquittal is by granting benefit of doubt in favour of the accused.
16. The Commission has been established under the provision of The Protection of Human Rights Act, which came to be enacted to protect one of the most important right namely, the right to life, which embodies a right to live a decent, dignified and respectable life. Therefore, no error can be attributed to the findings recorded by the Commission, while arriving at the decision that the said two accused person were responsible for the brutality, especially when, the Commission has examined witnesses, admitted documents and given reasons in support of its conclusion. The correctness of the factual finding has been assailed by only relying on the decision of the Criminal Court and in my view the factual finding recorded by the Commission cannot be set aside solely based on the verdict of Criminal Court. Therefore this Court is inclined to accept the finding of guilt recorded by the Commission.
17. Thus, in such circumstances, the positive direction issued by the Commission towards medical expenses for the medical treatment and compensation for the loss should be graciously accepted by the State, rather than contesting the same by filing a writ petition. A plea was raised on behalf of the petitioner that the two accused persons are temporary employees in the Child Care Centre and the State cannot be make vicariously liable. Under Section 2(m) of the Act, public servant has been defined to have the same meaning assigned to, in Section 21 of the Indian Penal Code and in terms of Section 21 of the IPC every person in the service of a Government or receiving a pay from the Government is a public servant. It cannot be disputed that the salary of those two accused persons are met from Government funds and the nomenclature of the post cannot be a deterrent, so as to take them out of the ambit of "public servant" for the purposes of the Protection of Human Rights Act, 1993. Therefore, this contention raised on by the petitioner also does not merit acceptance.
18. It is to be noted that the compensation amount awarded is very meager amount of Rs.1,10,000/-. The respondents 2 and 3, who are agricultural coolies have lost their child and have seen the child died before their own eyes, and therefore, considering all probabilities this is not a case, where the petitioner is entitled to challenge the award of the Commission, which was passed after considering oral and documentary evidence and determined the guilt of the employees of the State.
19. In the result, the writ petition fails and it is dismissed. The petitioner is directed to settle the compensation awarded within a period of two weeks from the date of receipt of a copy of this order.