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2011 DIGILAW 491 (PAT)

Laxman Yadav v. State of Bihar

2011-03-31

body2011
ORDER Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner, a traffic Havildar, is aggrieved by the order dated 19.2.2010 of the. State Human Rights Commission (hereinafter referred to as the Commission) directing recovery of Rs.20,000/- from his salary to be paid to the complainant Sunaina Devi. He is further aggrieved by the subsequent order dated 10.4.2010 by which the direction of the Commission for payment of Rs.2,00,000/- to the next of kin of Naresh Sah for his death in custody has been directed by the Superintendent of Police, Vaishali to be recovered also from the salary of the petitioner alone in installments. 3. Learned counsel for the petitioner submits that the order of the Commission directing recovery of Rs.20,000/- from his salary was contrary to Section-16 of the Protection of Human Rights Act, 1993 as the order has been passed to his prejudice behind his back without an opportunity to present his defence and convince the Commission of his stand and absence of liability. It is next submitted that the order of the Commission nowhere imposes liability on the petitioner for payment of the compensation for death in custody of Naresh Sah. That was an amount to be paid by the State Authorities for a custodial death with which the petitioner has nothing to do. 4. Learned counsel for the State from the order of the Commission submits that the Inspector General of Police attached with the Commission had given full opportunity to the petitioner, obtained his version of events also and submitted the same to the Commission whereafter the order has been passed. The petitioner therefore had full opportunity to put forth his case and his defence which has all been considered. It is not a case where an order has been passed behind his back to his prejudice. He had adequate opportunity which he does not deny. The Court therefore may not interfere in exercise of writ jurisdiction. Insofar as the recovery of Rs.2,00,000/- in installments from the petitioner is concerned, learned counsel for the State is unable to satisfy the Court from the order of the Commission that any directions to this effect had been given by the Commission vis-a-vis the petitioner. 5. The three counter affidavits by the respondents are completely silent on this aspect. 6. Insofar as the recovery of Rs.2,00,000/- in installments from the petitioner is concerned, learned counsel for the State is unable to satisfy the Court from the order of the Commission that any directions to this effect had been given by the Commission vis-a-vis the petitioner. 5. The three counter affidavits by the respondents are completely silent on this aspect. 6. Natural justice has been described as being no unruly horse which can run across any terrain. What natural justice shall mean may vary on facts from case to case. The common thread running would however be that a person cannot be condemned unheard on basis of an enquiry behind his back or materials collected behind his back without an opportunity to defend. To that extent, the Court does find justification in the stand of the State that the petitioner cannot be said to have been prejudiced in any manner by the order of the Commission directing recovery of Rs.20,000/- from his salary. The findings of the Commission are based on the report submitted by the Inspector General of Police attached to the Commission on the directions of the Commission. The petitioner does not contend that the I.G. had not heard him or that the I.G. did not place the defence of the petitioner before the Commission properly or that the Commission has not taken into consideration the defence of the petitioner as placed by the I.G. 7. There may be a Statute where natural justice is embodied in a statutory form. There may be court orders where it may read natural justice into the Statute without its being specifically incorporated. Yet there may be cases where the Court may hold that there was sufficient compliance with the principles of natural justice. But, if the Legislature by a statutory incorporation has given a statutory compulsion to the principles of natural justice by giving an opportunity to a person to defend himself. before the Commission passes an order the duty is of the Commission. The Commission cannot delegate this power to the I.G. of Police. In that event, issues of abdication of the statutory powers of the Commission to the I.G. may arise vitiating the order. From the order of the Commission it is more than apparent that it never issued notice to the petitioner to appear before it and place his defence. The Commission cannot delegate this power to the I.G. of Police. In that event, issues of abdication of the statutory powers of the Commission to the I.G. may arise vitiating the order. From the order of the Commission it is more than apparent that it never issued notice to the petitioner to appear before it and place his defence. The Statutory Mandate contained in Section-16 of the Protection of Human Rights Act reads as follows:- "16. Persons likely to be prejudicially affected to be heard.-If, at any stage of the inquiry, the Commission- (a) considers it necessary to inquire into the conduct of Any person; or (b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to the person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached." 8. In absence of the Commission having issued notice to the petitioner and then passed the impugned order, the Court finds it difficult to sustain the order of the Commission dated 19.2.2010 insofar as the recovery of Rs.20,000/- from his salary is concerned. To that extent the order is set aside. 9. It is apparent from the order dated 10.4.2010 that departmental proceedings have been initiated against the petitioner in pursuance of the order of the Commission and as directed by it. If the sum of Rs.20,000/- has not been recovered from the salary of the petitioner, it shall not be recovered till the conclusion of the departmental proceedings and the aspect of recovery shall abide by the final decision in the departmental proceeding. 10. The order of the Commission shall have to be read in its ordinary manner as a reasonable and prudent man would understand. The allegations against the petitioner were of demanding fruits from a vendor and refusing to pay misbehaving with the vendor. A fracas took place with the vendor and others including Naresh Sah. The latter was taken into custody. He was taken ill, admitted to the jail hospital and treated by the jail doctor. His fragile health since earlier was not appreciated by the authorities and treating him properly leading to deficient treatment and consequent death. This is not attributable to the petitioner who was not the treating authority. The latter was taken into custody. He was taken ill, admitted to the jail hospital and treated by the jail doctor. His fragile health since earlier was not appreciated by the authorities and treating him properly leading to deficient treatment and consequent death. This is not attributable to the petitioner who was not the treating authority. On a plain reading of the penultimate lines of the order of the Commission the Court has no alternative but to hold that the direction for payment of compensation for custodial death was against the State and not against the petitioner. The Court has no hesitation in holding that the respondents also understand the order in that manner, but have chosen to deliberately distort it and misinterpret it in their action. Conscious of the unsustainability of their action in recovering this amount from the salary of the petitioner they maintained silence on this aspect in the various counter affidavits filed by them. 11. The Court therefore holds that under the order dated 10.4.2010 no amount of this Rs.2.00,000/- awarded for custodial death can in any manner be recovered from the salary of the petitioner. That is an amount to be borne by the State from its coffers. From whom the State may intend to recover is entirely a different matter which can be done only in accordance with law and not in the manner done. If deduction on that count has been made from the salary of the petitioner, it is required to be refunded to him within a maximum period of two, months from the date of receipt production of a copy of this order before Respondent No.5 failing which the petitioner shall be held entitled to interest at the bank rate from the date of recovery till the date of payment. The writ application is allowed.