Judgment :- Common Order 1. Both writ petitions challenge the same order dated 16.4.2009 passed by the Superintendent of Police, Coimbatore District. By the impugned order, the petitioner in W.P.No.8910 of 2009 (K.Subramanian), who was working as a Special Sub Inspector of Police (formerly Head Constable) was directed to pay a sum of Rs.1,93,548/-and the said amount was directed to be recovered in 19 installments at the rate of Rs.1548/-for the first installment and the balance amount from 5/2009 to 12/2010 at the rate of Rs.2000/- and that the remaining amount will be recovered from his pensionary benefits. The Director General of Policy was directed to recover the amount from the salary of the petitioner and credit it to the account maintained by the State under the caption Social Security and Welfare. 2. Similarly, the petitioner in W.P.No.9106 of 2009 (B.Kalitheerthan), who was the Inspector of Police, Coastal Security, Nagapattinam (formerly Sub Inspector of Police), was directed to pay a sum of Rs.2,56,452/-in 103 installments, the first installment being Rs.1452/- and the balance installments at the rate of Rs.2500/-. It was stated by the fourth respondent that the Government had issued G.O.Ms.No.1061, Public Law and Order dated 19.9.2008 and ordered enhanced compensation of Rs.4.5 lakhs with interest as per the order passed by this court in W.P.No.19702 of 2000 to one Palaniammal, W/o.late Ganesan and recovery was ordered against two petitioners. 3. It transpires that on 13.6.1997, one Ganesan, who was the lorry driver, involved in a road accident near Zamin Uthukuli village, Pollachi Taluk. A case was registered by Pollachi West police station in Crime No.489/1997. He was brought to the police station on the said day around 08.40 p.m. Since it was believed that he had consumed liquor, he was taken to the Pollachi Government Hospital. On 14.6.1997, he was found unconscious. Thereafter, he was brought to the Coimbatore Medical College Hospital and kept in the ICU. The said Ganesan underwent treatment at the hospital from 14.6.1997 to 20.6.1997. But however he died at 03.00 p.m. on 20.6.1997. Thereafter, on account of death of the said Ganesan while in custody, an enquiry was ordered under PSO 145. The said report was sent to the State government through the office of the District Collector, Coimbatore. On the basis of the PSO report, Rs.50,000/-was directed to be paid from the Chief Minister's Public Relief Fund on ex gratia basis. 4. Thereafter, on account of death of the said Ganesan while in custody, an enquiry was ordered under PSO 145. The said report was sent to the State government through the office of the District Collector, Coimbatore. On the basis of the PSO report, Rs.50,000/-was directed to be paid from the Chief Minister's Public Relief Fund on ex gratia basis. 4. The Government on the basis of the said report issued G.O.Ms.No.1015, Public Law and Order Department. An enquiry was conducted by the Revenue Divisional Officer. The report of the RDO showed that two petitioners had inflicted injuries on the deceased Ganesan by deadly weapons. Even during the pendency of the criminal case registered, charge memos were given to the petitioners. The Superintendent of Police without regard to any procedural rules, by an order dated 10.3.2000 had imposed the punishment of black mark deferred for three months on the petitioner in W.P.No.8910 of 2009 and the penalty of censure on the petitioner in W.P.No.9106 of 2009. However, the Director General of Police disagreed with the procedure and had issued a show cause notice dated 11.5.2000 asking as to why the punishment should not be enhanced. It was stated that during autopsy conducted on the body of Ganesan, the Doctor who had deposed before the criminal court as P.W.42 found that there were both internal and external injuries which were caused six days prior to death and that had aggravated the death. Hence for causing the death of the said Ganesan, ordering mere censure deferred for three months was not commensurate with the gravity of offence. 5. The petitioners gave their explanations. Notwithstanding the explanation, in the case of K.Subramanian, the punishment was enhanced to one of reduction in time scale of pay by one stage for a period of one year with cumulative effect. As against the penalty, K.Subramanian filed O.A.No.7745 of 2001 before the State Administrative Tribunal. The Tribunal by its order dated 6.12.2001 had allowed the OA and the punishment was set aside. Thereafter, Subramaniam filed a writ petition before this court being W.P.No.2785 of 2006 seeking for a direction to implement the order of the Tribunal and to sanction the increment. That writ petition was allowed with a direction to the respondent to implement the order vide order dated 2.2.2006. Thereafter, Subramaniam filed a writ petition before this court being W.P.No.2785 of 2006 seeking for a direction to implement the order of the Tribunal and to sanction the increment. That writ petition was allowed with a direction to the respondent to implement the order vide order dated 2.2.2006. The State Government thereafter issued G.O.(2D)No.543, Police Department, dated 18.9.2006 and directed implementation of the order of the Tribunal. The fourth respondent accordingly cancelled the order by a consequential order dated 22.10.2006. 6. In the case of B.Kalitheerethan, he was given punishment of deferred censure for three months. For that, a show cause notice was given by the Director General of Police on 11.5.2000 as to why the punishment should not be enhanced. The petitioner gave his explanation. Thereafter, the Director General of Police, by an order dated 30.12.2000 held that there was no necessity to enhance the penalty and that the original penalty of deferred censure was retained. 7. But during the pendency of those proceedings, the wife of the deceased Ganesan filed a writ petition before this court being W.P.No.19702 of 2000 seeking for compensation of Rs.5 lakhs for the death of her husband Ganesan in police custody. That writ petition came to be allowed by this court. The State Government was directed to pay compensation of Rs.5 lakhs to the said Palaniammal and her family members consisting of three daughters after deducting Rs.50,000/-already paid. An interest at the rate of 6% was also directed to be paid. The operative portion of the order passed by this court reads as follows: "23.) In view of the same, the writ petition is allowed and the first respondent is directed to pay an amount of Rs.5,00,000/-to the petitioner and her family members consisting of three daughters after deducting the amount of Rs.50,000/-already paid and the balance of the said amount shall be paid along with interest at the rate of 6% from the date of filing of the writ petition viz., 22.11.2000 till the date of payment. It is also further directed that out of the total amount of Rs.4,50,000/- to be paid, Rs.3,00,000/-along with accrued interest to the respective amount shall be invested in the names of the three daughters i.e. each daughter getting Rs.1,00,000/-along with accrued interest, in three Fixed Deposits initially for a period of three years with Tamil Nadu Power Finance Corporation, with a right to the petitioner, being the mother, to receive quarterly interest for the maintenance of her daughters. The balance amount of Rs.1,50,000/-with accrued interest shall be paid to the petitioner. The above said direction shall be paid to the petitioner. The above said direction shall be complied with within eight weeks from the date of receipt of a copy of this order. The writ petition stands allowed with the above direction. No costs." 8. As to the death of late Ganesan, this court had recorded the following findings in the said judgment in paragraphs 13 to 16 which reads as follows : "13) .....The mere fact that a criminal court has acquitted the police officials, which may be on the basis of benefit of doubt or the incident has to been proved beyond any reasonable doubt, that does not mean that the custodial violence committed by the police officials on the petitioner's husband ceases to exist, especially under the circumstances when the said fact of custodial violence has been candidly admitted in clear terms in the counter affidavit. 14.) In fact in the order of the District Collector, Coimbatore in R.O.C.No.55540/97/E3 dated 22.06.1997, in which the petitioner was granted exgratia of a sum of Rs.50,000/-from the Tamil Nadu Chief Minister's Public Relief Fund, it is clearly admitted that the death caused to the petitioner's husband was due to police torture. 14.) In fact in the order of the District Collector, Coimbatore in R.O.C.No.55540/97/E3 dated 22.06.1997, in which the petitioner was granted exgratia of a sum of Rs.50,000/-from the Tamil Nadu Chief Minister's Public Relief Fund, it is clearly admitted that the death caused to the petitioner's husband was due to police torture. The relevant portion is as follows: "In pursuance of orders issued in the G.O. cited, sanction is hereby accorded for the drawal and payment of Rs.50,000/-(Rupees fifty thousand only) to Tmt.Palaniammal, W/o.Late Ganesan, Zamin Uthukuli Village, Pollachi Taluk whose husband Thiru.Ganesan died due to alleged police torture." 15.) It is seen from the analysis report filed by the Department of Forensic Medicine, Coimbatore, dated 21.06.1997, that the deceased person was aged about 40 years and as it is seen from the affidavit filed in support of this writ petition that the writ petition was filed in the year 2000 and her age is stated as 37 years and therefore, at the time of the death of the petitioner's husband, she must have been around 34 years. In the absence of any denial about the three daughters the petitioner is having, I am of the considered view that at this point of time, after nearly eight years, it will be doing gross injustice to the petitioner, if the petitioner is driven to the Civil Court, especially in the absence of any denial of factual position regarding the torture and death of the petitioner's husband including the age of the petitioners. 16.) As I have stated above, mere acquittal of the police personnel in the criminal case will not absolve the responsibility of the respondents in paying compensation for the atrocities committed and custodial violence caused against the petitioner's husband." 9. Subsequent to the order passed by this court enhancing the compensation, the impugned order came to be passed proposing to recover the amount from the two petitioners. Challenging the same, the two writ petitions came to be filed. 10. The first writ petition was admitted on 5.5.2009. Pending the writ petition, this court had granted an interim stay on the ground that the petitioner was not given a separate notice on the liability fixed. Similarly, W.P.No.9106 of 2009 was admitted on 14.5.2009 and it was directed to be heard along with the previous writ petition. Pending that writ petition, this court had granted an interim stay. Pending the writ petition, this court had granted an interim stay on the ground that the petitioner was not given a separate notice on the liability fixed. Similarly, W.P.No.9106 of 2009 was admitted on 14.5.2009 and it was directed to be heard along with the previous writ petition. Pending that writ petition, this court had granted an interim stay. 11.The contentions raised by the petitioners was that in the criminal case after elaborate trial in C.C.No.50 of 1999, the Judicial Magistrate-III, Pollachi had acquitted them and that acquittal has become final. The departmental enquiry attempting to enhance the penalty was subsequently given up in one case and in another case, the court had set aside the penalty. Therefore, the allegation of torture was not proved either before the earlier criminal trial or in the departmental enquiry. Therefore, based upon the order passed by this court, without notice to the petitioners, the amount cannot be recovered. 12. However, this court is unable to accept the same mainly on two reasons. When the relatives of the deceased filed a writ petition, the State Government was a party and this court had clearly recorded the finding that acquittal by the criminal court has no relevance denying payment of compensation especially on the overwhelming evidence of the Doctor that there were physical injuries found on the body of the deceased which should have been inflicted only by the two petitioners who were instrumental in the arrest. The order passed by this court directing the State to pay compensation has become final as neither the State nor the two aggrieved petitioners have preferred any review petition or an appeal. Though the petitioners have enclosed the order passed by this court granting compensation, they have not chosen to file any third party review or third party appeal. Therefore, the findings recorded by this court regarding the third degree method adopted by the petitioner remained intact. The court also took note of the acquittal by the criminal court while rending the findings. 13. Once the State is mulct with the compensation because of vicarious liability fixed, for which nothing prevented the State from recovering the amount from the guilty officers like the two petitioners. While the State's liability to pay compensation cannot be questioned, similarly the State's power to recover the amount from the officers who had committed such misconducts also cannot be questioned. While the State's liability to pay compensation cannot be questioned, similarly the State's power to recover the amount from the officers who had committed such misconducts also cannot be questioned. The petitioners' contention that they were acquitted by the criminal court and that the departmental proceedings ended in their favour will not debar the State from recovering the amount consequent upon the order passed by this court which direction has become final. It is not as if the petitioners can indulge in illegal acts for which the State has only vicarious liability, whereas the liability of the petitioners is direct. Further, the petitioners in these writ petitions cannot collaterally challenge the findings recorded in the writ petition filed by Palaniammal. 14. The Supreme Court in D.K. Basu v. State of W.B., reported in (1997) 1 SCC 416 had held in paragraphs 44, 45 and 54 as follows: “44.) The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. 45.) The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. 45.) The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. 54.) Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.” 15. In view of the above, both writ petitions will stand dismissed. But, however the parties are allowed to bear their own costs. Consequently connected miscellaneous petitions stand closed.