Calcutta High Court (Appellete Side)
Ashoke Kumar Nath vs Union Of India & Ors on 1 August, 2013
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble the Chief Justice and
Hon'ble Mr. Justice Joymalya Bagchi
F.M.A. No. 1013 of 2012
Ashoke Kumar Nath
Versus
Union of India & Ors.
For the appellants : Mr. Priyabrata Mukherjee, Adv.,
Mr. Sunil Kr. Ray, Adv.,
Nayeemuddin Munshi, Adv.,
Miss A. Roy, Adv.
Heard on : 01.08.2013
Judgement on : 01.08.2013
Joymalya Bagchi, J.: The appellant is aggrieved by the judgement and order
dated 25.04.2012 passed by the learned Single Judge rejecting his prayer to award
compensation in public law domain for illegal and arbitrary termination of
permission to work as a Professional Letter Writer (hereinafter referred to as
"PLW") at Calcutta G.P.O.
The facts of the case is that vide Memo dated 11th August, 2004 the
petitioner was given permission to work as PLW at Calcutta G.P.O. with effect
from 1st February, 2004 for three years. However, on 4th March, 2005 the aforesaid
permission was terminated on the basis of complaint lodged by one Anil Sharma
alleging that he has misappropriated moneys entrusted to him. Such order of
termination was set aside by this Court on 6th July, 2007 in W.P. No. 6082 (W) of
2005 directing the respondent authority to take fresh decision within eight weeks
from the date of communication of this order.
In terms of the aforesaid order, fresh hearing was held on 30.08.2007 and
the petitioner was directed to give his reply to the questionnaire handed over to
him by respondent authorities.
In the meantime, petitioner submitted a tender form seeking permission to
work as PLW from 01.09.2007 to 31.08.2010. By order dated 11.09.2007 his tender
was rejected. He challenged such order of rejection before this Court in W.P. No.
22355 (W) of 2007 wherein this Court by order date 11.09.2007 set aside the
decision of respondent authorities and directed them to give a fresh hearing to
the petitioner.
Thereafter, respondent authorities again rejected the prayer of the
petitioner by order dated 27.10.2008. Such order was again challenged by the
petitioner in W.P. No. 28446 (W) of 2008. The writ petition was dismissed by a
Single Judge of this Court vide order dated 02.09.2009. However, in appeal, the
Division Bench by order dated 11.12.2010 allowed the prayer of the petitioner
and quashed the decision of respondent authorities in rejecting the prayer of the
petitioner to work at PLW at Calcutta, G.P.O.
Being emboldened by such order of the Division Bench of this Court,
petitioner made a representation before respondent authorities seeking
compensation for being illegally denied the opportunity to work as PLW at
Calcutta, G.P.O. and claimed a sum of Rs. 16,000,50/‐ as compensation. As the
respondent authorities did not consider such representation, the petitioner filed
the instant writ petition praying for compensation in public law domain from the
wrongful action of the respondent authorities.
Learned Single Judge declined such prayer on the ground that the writ
Court is not the appropriate forum for claiming compensation in such cases and
granted leave to the petitioner to seek appropriate remedy before the Civil Court.
Learned counsel appearing for the petitioner submitted it is no longer res
integra that the respondent authorities had acted illegally in refusing permission
to petitioner to work as PLW at Calcutta, G.P.O. He further submitted that as his
fundamental rights were infringed by such wrongful and arbitrary action, he was
entitled to be compensated in the public law domain by the respondent
authorities.
He has relied on D.K. Basu Vs. State of West Bengal, (1997) 1 SCC 416,
Nilabati Behera Vs. State of Orissa, AIR 1993 SC 1960 and Municipal
Corporation of Delhi, Delhi Vs. Association, Victims of Uphaar Tragedy,
(2012) 1 WBLR (SC) 321 in support of his submission.
On the other hand, learned counsel appearing for respondent authorities
submitted that there is no illegality in the impugned order and petitioner has
been given liberty to move the Civil Court in accordance with law.
The issue which falls for decision is whether in the facts of the case the
petitioner is entitled to seek compensation under public law from the respondent
authorities.
Undoubtedly, in a case of blatant and gross breach of fundamental right to
life under Article 21 of the Constitution of India, the Apex Court in a series of
decisions has granted the relief of compensation, when no other remedy was
available, to vindicate such breach of fundamental right of the victim which
shocked the conscience of the Court.
The apex Court has succinctly admitted in paragraph 61 of Municipal
Corporation of Delhi, Delhi Vs. Association, Victims of Uphaar Tragedy
(supra) that compensation may be awarded in a fit and proper case although
there may not be a system or method to quantify the same. It held as follows :‐
"61. Law is well settled that a Constitutional Court can award
monetary compensation against State and its officials for its
failure to safeguard fundamental rights of citizens but there is no
system or method to measure the damages caused in such
situations. Quite often the courts have a difficult task in
determining damages in various fact situations. The yardsticks
normally adopted for determining the compensation payable in a
private tort claims are not as such applicable when a
constitutional court determines the compensation in cases where
there is violation of fundamental rights guaranteed to its citizens.
In D.K. Basu vs. Union of India (1997) 1 SCC 416, a Constitution
Bench of this Court held that there is no strait jacket formula for
computation of damages and we find that there is no uniformity
or yardstick followed in awarding damages for violation of
fundamental rights. In Rudal Shahʹs case (supra) this Court used
the terminology 'Palliative' for measuring the damages and The
formula of 'Ad hoc' was applied in Sebastian Hongaryʹs case
(supra) the expression used by this Court for determining the
monetary compensation was 'Exemplary' cost and the formula
adopted was 'Punitive'. In Bhim Singhʹs case, the expression used
by the Court was 'Compensation' and method adopted was
'Tortious formula'. In D.K. Basu v. Union of India (supra) the
expression used by this Court for determining the compensation
was 'Monetary Compensation'. The formula adopted was 'Cost to
Cost' method. Courts have not, therefore, adopted a uniform
criteria since no statutory formula has been laid down."
However, in the self‐same decision the Supreme Court rung a note of
caution stating that such relief may be granted only "in exceptional cases". In
paragraph 63 of the said report, the apex Court held, as follows : ‐
"63. Legal liability in damages exist solely as a remedy out of
private law action in tort which is generally time consuming and
expensive and hence when fundamental rights are violated
claimants prefer to approach constitutional courts for speedy
remedy. Constitutional courts, of course, shall invoke its
jurisdiction only in extraordinary circumstances when serious
injury has been caused due to violation of fundamental rights
especially under Article 21 of the Constitution of India. In such
circumstances the Court can invoke its own methods depending
upon the facts and circumstances of each case." (emphasis
supplied)
A Three Bench of the apex Court had the occasion of dealing with the
issue of grant of compensation as a public law remedy in Sube Singh Vs. State
of Haryana & Ors., (2006) 3 SCC 178. In the said report, the apex Court held that
compensation as a public law remedy should be restricted to gross and patent
cases of violation of Article 21 which shocks the conscience of the Court. It held
as follows : ‐
"46. In cases where custodial death or custodial torture or other
violation of the rights guaranteed under Article 21 is established,
courts may award compensation in a proceeding under Article 32
or 226. However, before awarding compensation, the Court will
have to pose to itself the following questions : (a) Whether the
violation of Article 21 is patent and incontrovertible, (b) whether
the violation is gross and of a magnitude to shock the conscience
of the court, (c) whether the custodial torture alleged has resulted
in death or whether custodial torture is supported by medical
report or visible marks or scars or disability. Where there is no
evidence of custodial torture of a person except his own
statement, and where such allegation is not supported by any
medical report or other corroboration evidence, or where there
are clear indications that the allegations are false or exaggerated
fully or in part, courts may not award compensation as a public
law remedy under Article 32 or 226, but relegate the aggrieved
party to the traditional remedies by way of appropriate
civil/criminal action.
47. .........The public law remedy is additionally available where
the conditions mentioned in the earlier para are satisfied."
In Rajender Singh Pathania & Ors. Vs. State (NCT of Delhi) & Ors.,
(2011) 13 SCC 329, the apex Court even disapproved the practice of grant of
token compensation as a public law remedy in every case. It held as follows :‐
"20. The issue of award of compensation in case of violation of
fundamental rights of a person has been considered by this Court
time and again and it has consistently been held that though the
High Courts and this Court in exercise of their jurisdictions
under Articles 226 and 32 can award compensation for such
violations but such a power should not be lightly exercised.
These Articles cannot be used as a substitute for the enforcement
of rights and obligations which could be enforced efficaciously
through the ordinary process of courts. Before awarding any
compensation there must be a proper enquiry on the question of
facts alleged in the complaint. The court may examine the report
and determine the issue after giving opportunity of filing
objections to rebut the same and hearing to the other side.
Awarding of compensation is permissible in case the court
reaches the same conclusion on a re‐appreciation of the evidence
adduced at the enquiry. Award of monetary compensation in
such an eventuality is permissible "when that is the only
practicable mode of redress available for the contravention made
by the State or its servants in the purported exercise of their
powers........". (Vide: Sebastian M. Hongray v. Union of India,
AIR 1984 SC 1026; Bhim Singh, MLA v. State of J&K, AIR 1986
SC 494; Smt. Nilabati Behera v. State of Orissa & Ors., AIR 1993
SC 1960; D.K. Basu v. State of W.B., AIR 1997 SC 610; Chairman,
Railway Board & Ors. v. Mrs. Chandrima Das & Ors., AIR 2000
SC 988; and S.P.S. Rathore v. State of Haryana & Ors., (2005) 10
SCC 1). (emphasis supplied)
.........................................
22. In view of the above, we are of the considered opinion that
the High Court erred in awarding even token compensation to
the tune of Rs.25,000/‐ each as the High Court did not hold any
enquiry and passed the order merely after considering the status
report submitted by the appellant no.1 without hearing any of the
persons against whom allegations of abuse of power had been
made. Such an order is liable to be set aside."
It is true in the instant case that a Division Bench of this Court has held
that the action of refusing permission to the petitioner was contrary to law. Does
it follow as a natural corollary thereto that the petitioner would be entitled to
compensation as a public law remedy ? We do not think so.
The case of the petitioner by no stretch of imagination can be construed to
be one in the realm of a gross and blatant breach of Article 21 of the Constitution
resulting from custodial torture and even ensuing death. Neither is it similar to
genocide of innocent citizens in a movie hall directly attributable to the culpable
connivance of statutory authorities in permitting the owners to run the said hall
in palpable breach of safety norms as in Municipal Corporation of Delhi, Delhi
Vs. Association, Victims of Uphaar Tragedy (supra). It is not the petitioner's case
that due to the illegal refusal of the respondent authorities all other avenues of
livelihood had been obliterated. No factual foundation had been laid by him that,
in fact, during the said period he had no means of livelihood or that grant of
compensation in public law is the only remedy available to him.
It would entail a factual enquiry to establish a reasonable nexus between
damages, if any, suffered by the petitioner and the wrongful acts of the
respondents prior to grant of compensation and such enquiry can be best done
by the appropriate civil Court under ordinary law of the land.
We are, therefore, of the opinion that the petitioner has been unable to
make out a case of gross and blatant breach of his fundamental rights which
shocks the conscience of the Court and that compensation as a public law
remedy is the only relief available to him.
The facts of the case are clearly distinguishable from the cases relied on by
the petitioner and we are convinced that this is not a fit case to invoke our
extraordinary writ jurisdiction to grant compensation to the petitioner as a public
law remedy. The claim of the petitioner may be adjudicated under ordinary law
as directed by the learned Single Judge.
That apart, the petitioner had not sought for such compensatory relief in
the earlier proceeding wherein he challenged the action of respondent authorities
in refusing him permission to work as PLW. Such consequential relief, as
claimed, flows from the declaration of the Court that the impugned action of the
respondents were illegal and ought to have been prayed for in the same
proceeding. Having not done so, the petitioner cannot institute this subsequent
proceeding to seek such consequential compensatory relief as a public law
remedy when he had failed and/or neglected to do so in the earlier proceeding.
For the aforesaid reasons, the appeal fails. Impugned order passed by the
learned Single Judge is upheld.
(Joymalya Bagchi, J.) (Arun Mishra, Chief Justice)
P.A. to J. Bagchi,J.
