Delhi High Court
Neema Goyal vs Union Of India & Anr. on 4 July, 2011
Author: S. Muralidhar
Bench: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 4756/1997
Reserved on: 5th May 2011
Decision on: 4th July 2011
NEEMA GOYAL ..... Petitioner
Through: Mrs. June Chaudhari, Senior Advocate with
Ms. Sumeeta Chaudhari and Mr. Anil
Karnwal, Advocates.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Ms. Maneesha Dhir, Sr. Panel Counsel with
Ms. Mithu Jain, Advocate for R-1/UOI.
Mr. Rajeev Nanda, Addl. Standing counsel
with Ms. Rachna Saxena, Advocate for
for R-2/Police.
W.P. (C) 5405/1997
JASPAL KAUR ..... Petitioner
Through: Mr. Mayank Bughani, Advocate.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Ms. Maneesha Dhir with
Ms. Mithu Jain, Advocates for UOI.
Mr. Rajiv Nanda, Addl. Standing counsel
with Ms. Rachna Saxena, Advocate for
for R-2/Police.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGMENT
04.07.2011 W. P. (C) Nos. 4756 & 5405 of 1997 Page 1 of 18 Introduction
1. On 31st March 1997 at around 2.30 pm outside Dena Bank at the Outer Circle of Connaught Place, New Delhi, thirteen policemen led by Assistant Commissioner of Police Satyavir Singh Rathi (hereafter „ACP Rathi‟) surrounded a Maruti Esteem car and fired at it from all directions. Two of the three occupants of the car, Shri Pradeep Goyal and Shri Jagjit Singh were killed instantaneously. Grievous injuries were caused to the third occupant, Shri Tarun Preet Singh. For the dastardly killing, ten of the policemen including ACP Rathi were convicted under Section 302 IPC read with 120B IPC and various other related offences by the learned Additional Sessions Judge („ASJ‟) by a judgment dated 16th October 2007 and sentenced to life imprisonment by a consequential order dated 24th October 2007. The appeals by the convicted policemen were dismissed by this Court on 18th September 2009. Their further appeals were dismissed by the Supreme Court on 2nd May 2011.
2. Smt. Neema Goyal, wife of Pradeep Goyal has filed W.P. (C) 4756 of 1997 claiming compensation of Rs. 2 crores from the Union of India in the Ministry of Home Affairs („MHA‟), and the Commissioner of Police, Delhi (Respondents 1 and 2) for the wrongful killing of her husband. Smt. Jaspal Kaur, wife of Jagjit Singh has filed W.P. (C) 5405 of 1997, claiming an identical relief.
3. Inasmuch as the facts of the case stand established by the prosecution and the guilt of the police personnel involved comprehensively proved beyond reasonable doubt, these petitions do not involve disputed questions of facts. The findings of the trial court on facts have been affirmed by this Court and the Supreme Court.
Factual background 4.1 The facts are that on 31st March 1997 Jagjit Singh and Tarun Preet Singh, both hailing from Kurukshetra, Haryana reached the office of Pradeep Goyal near the Mother Dairy in Patparganj, Delhi at about 1 pm. Pradeep Goyal told them that he had some work at the Dena Bank in Connaught Place. He asked them to accompany him. The three left in a blue Maruti Esteem car UP 14 F 1580 belonging to Pradeep Goyal.
W. P. (C) Nos. 4756 & 5405 of 1997 Page 2 of 184.2 One Mohd. Yaseen was wanted by the Delhi Police and the police of other states in several criminal cases. He was being tracked by the Inter-State Cell of the Crime Branch of the Delhi Police. His telephone calls were monitored and tracked by Inspector Ram Mehar. ACP Rathi was incharge of the Inter-State Cell. He received information that Mohd. Yaseen would be visiting a place near the Mother Dairy at Patparganj at about 1.30 pm on 31st March 1997. ACP Rathi directed Inspector Anil Kumar to keep a watch near the Mother Dairy. Inspector Anil Kumar was present when Tarun Preet Singh and Jagjit Singh met Pradeep Goyal in his office. Inspector Anil Kumar mistook Jagjit Singh, who was a cut haired Sikh (i.e., without a turban but sporting a beard), for Mohd. Yaseen. Inspector Anil Kumar then was accompanied by Head Constable Shiv Kumar and Constable Sumer Singh. He called ACP Rathi for reinforcements.
4.3 ACP Rathi with the police party consisting of 12 persons left the Inter-State Cell office at 1.32 pm. Two of the policemen were armed with AK-47 rifles and others with revolvers. ACP Rathi was carrying a 9 MM pistol. The Maruti Esteem car stopped at Dena Bank, Connaught Place at 2.00 pm. Pradeep Goyal emerged from the Bank at about 2.30 pm and after giving instructions to his employees sat in the Esteem car on the front left seat whereas Tarun Preet Singh was in the rear seat. The car driven by Jagjit Singh had moved towards Barakhamba Road when it halted at the red light. At that time the two police parties, one headed by ACP Rathi and the other by Inspector Anil Kumar joined forces. The car was immediately surrounded by the police officials and fired upon from all sides resulting in the instant deaths of Pradeep Goyal and Jagjit Singh and grievous injuries to Tarun Preet Singh. The three occupants were removed to the Ram Manohar Lohia Hospital in a Police Control Room Gypsy. Pradeep Goyal and Jagjit Singh were declared dead on arrival.
The criminal trial and conviction
5. The incident caused public outrage. FIR No. 448 of 1997 was registered at Police Station („PS‟) Connaught Place. Dinesh Chand Gupta, father-in-law of Pradeep Goyal gave a complaint to the Lieutenant Governor („LG‟), Delhi leading to the registration of FIR No. 453 of 1997 at PS Connaught Place, New Delhi against the aforementioned police personnel for the offences punishable under, inter alia, Section 302/34 IPC. The W. P. (C) Nos. 4756 & 5405 of 1997 Page 3 of 18 investigation was handed over to the Central Bureau of Investigation („CBI‟). FIR Nos. 448 and 453 of 1997 were amalgamated. A charge sheet was filed before the Chief Metropolitan Magistrate („CMM‟) on 13th June 1997. The CMM took cognizance of the offences by an order dated 10th July 1997 and committed the case for trial before the learned ASJ. The trial court recorded evidence of 74 witnesses and examined a large number of documents including reports of the Forensic Science Laboratory. By a judgment dated 16th October 2007, the trial court convicted the accused policemen and by a subsequent order dated 24th October 1997 sentenced them, inter alia, to imprisonment for life for the offences under Section 302/120B IPC. In Crl. Appeal No. 671 of 2007 and batch by the convicted policemen including ACP Rathi, this Court re-examined the entire evidence and by its judgment dated 18th September, 2009 upheld the conviction and sentence under Section 302/307 IPC with the aid of 34 IPC instead of Section 120B IPC. The conviction and sentence of ACP Rathi and Inspector Anil Kumar additionally under Sections 193, 201/34 and 203/34 IPC were maintained.
6. The further appeals by the convicted policemen including ACP Rathi were dismissed by the Supreme Court by its judgment dated 2nd May 2011 [Satyavir Singh Rathi v. State through CBI 2011 (5) SCALE 339]. Negativing the contention on behalf of the convicted police officers that the acts for which they were accused fell within the distinction of „colour of duty‟, the Supreme Court observed as under: (SCALE, p. 368) "In the light of the facts that have been found by us above, it cannot, by any stretch of imagination, be claimed by anybody that a case of murder would fall within the expression `colour of duty‟. We find absolutely no connection between the act of the appellants and the allegations against them. Section 140 of the Delhi Police Act would, therefore, have absolutely no relevance in this case and Mr. Sharan‟s argument based thereon must, therefore, be repelled."
7. The Supreme Court also significantly observed that Inspector Anil Kumar "had made absolutely no attempt to apprehend" Jagjit Singh although he stayed behind in the car alone for some time when Pradeep Goyal and Tarun Preet Singh went into the Dena Bank. It observed that this "pre-incident conduct" was relevant. The Supreme Court further observed: (SCALE, pp 359-360) "(I)t is the case of the defence that the car had been surrounded to W. P. (C) Nos. 4756 & 5405 of 1997 Page 4 of 18 immobilize the inmates and to prevent them from escaping and that it was with this intention that Inspector Anil Kumar had knocked on the driver's window asking the inmates to get out but he had been answered by firing from inside the car. This plea cannot be accepted for the reason that the defence has already been rejected by us. Moreover PW-37 testified that there were no bullet marks on the tyres and they remained intact even after the incident, despite 34 shots being fired at the car, and 29 bullet holes, most of them of entry, thereon. On the other hand, the Appellants presupposed that one of the inmates was Mohd. Yaseen, the wanted criminal and that the firing was so insensitive and indiscriminate that some of the shots had hit Constables Subhash Chand and Sunil Kumar. The post facto conduct of the Appellants is again relevant. Inspector Anil Kumar gave a report on the 1st April 1997 immediately after the incident, which was followed by a report by ACP Rathi the next day giving the counter version. This has been found by us to be completely untenable. The High Court was, therefore, justified in holding that in the light of the above facts, it was not necessary to assign a specific role to each individual Appellant as the firing at the Car was undoubtedly with a clear intent to annihilate those in it and was resorted to in furtherance of the common intention of all the Appellants."
Liability for compensation
8. The liability of the State to compensate victims of lawlessness by its agents and employees is well settled. The Supreme Court has consistently rejected the defence of sovereign immunity as creating an exception when violations of fundamental rights are committed by the State. [Khatri (IV) v. State of Bihar (1981) 2 SCC 493, Saheli v. Commissioner of Police, Delhi (1990) 1 SCC 422, Nilabati Behera v. State of Orissa (1993) 2 SCC 746, DK Basu v. State of West Bengal (1997) 1 SCC 41, State of Andhra Pradesh v. Challa Ramkrishna Reddy (2000) 5 SCC 712]. It is also well settled that in matters involving violation of fundamental rights by law enforcement officials, the strict liability principle will apply and the State must pay monetary compensation to the victims of such violence as a public law remedy under Articles 32 or 226. This remedy is in addition to any other private law remedy the victims or their dependants may have.
9. In Nilabati Behera v. State of Orissa (1993) 2 SCC 746 the Petitioner's son, Suman Behera, aged about 22 years, was taken in police custody from his home by Sarat Chandra Barik, Assistant Sub-Inspector of Police of PS Bisra, District Sundergarh in Orissa in connection with the investigation of an offence of theft and detained at the W. P. (C) Nos. 4756 & 5405 of 1997 Page 5 of 18 Police Outpost. At about 2 pm the day after the arrest, the Petitioner came to know that the dead body of her son Suman Behera was found on the railway track near a bridge at some distance from the Jaraikela railway station with multiple injuries on his body. Rejecting the plea of sovereign immunity, the Court speaking through Justice J.S. Verma (as he then was) observed: (SCC, p. 761) "16. In this context, it is sufficient to say that the decision of this Court in Kasturilal v State of UP AIR 1965 SC 1039 upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation."
10. In his concurring opinion, Justice A S Anand (as he then was) explained the special function of the public law remedy as under: (SCC, pp 768-769) "The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an W. P. (C) Nos. 4756 & 5405 of 1997 Page 6 of 18 action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.
37. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. ... In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned."
11. The Supreme Court directed payment of compensation in the sum of Rs. 1,50,000 to the mother of the deceased by the State of Orissa.
12. In D K Basu v. State of West Bengal (1997) 1 SCC 416 the Supreme Court revisited the issue of police atrocities and "modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned". Noting that "protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society", the Court observed: (SCC, p. 427) "If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights' jurisprudence. The answer, indeed, has to be an emphatic "No". The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, W. P. (C) Nos. 4756 & 5405 of 1997 Page 7 of 18 except according to the procedure established by law by placing such reasonable restrictions as are permitted by law."
13. Negativing the plea of the Railways that it could not be held vicariously liable for acts of its employees, the Supreme Court in Chairman Railway Board v. Chandrima Das (2000) 2 SCC 465 held that "if any of such employees commits an act of tort, the Union Government, of which they are employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees." The redundancy of the sovereign immunity doctrine was explained as under:
(SCC, p. 485) "41. The theory of Sovereign power which was propounded in Kasturi Lal's case has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defence of the country or the administration of Justice, but they extend to many other spheres as, for example education, commercial, social, economic, political and even marital. These activities cannot be said to be related to Sovereign power."
14. The distinction between public and private law, and the remedies thereunder, was elucidated in Common Cause, A Registered Society v. Union of India (1999) 6 SCC
667. In State of Andhra Pradesh v. Challa Ramkrishna Reddy the Supreme Court upheld the decision of the High Court of Andhra Pradesh granting compensation to the family members of an undertrial who got killed in an attack targeting him in the Koilkuntla jail. It observed: (SCC, p. 727) "Moreover, these decisions, as for example, Nilabti Behera v. State of Orissa, in Re: Death of Sawinder Singh Grower [(1995) Supp (4) SCC 450], and D.K. Basu v. State of West Bengal, would indicate that so far as Fundamental Rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortuous action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail."
15. In answering the question whether monetary compensation should be awarded for established infringement of the fundamental rights guaranteed by Articles 21 and 22 of W. P. (C) Nos. 4756 & 5405 of 1997 Page 8 of 18 the Constitution, the Court in D K Basu held: (SCC, p. 438) "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 tortuous 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. 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."
16. Monetary compensation for violation of fundamental rights by the State has been consistently awarded by the Supreme Court to the victims and their relatives. The decisions include Rudul Sah v. State of Bihar (1983) 4 SCC 141, Bhim Singh v. State of J&K (1985) 4 SCC 677, Peoples' Union for Democratic Rights v. Police Commissioner, Delhi (1989) 4 SCC 730, Mrs. Sudha Rasheed v. Union of India, 1995 (1) SCALE 77, Inder Singh v. State of Punjab (1995) 3 SCC 702, Malkiat Singh v. State of UP (1998) 9 SCC 351, Ajab Singh v. State of Uttar Pradesh (2000) 3 SCC 521 and Munshi Singh Gautam v. State of MP (2005) 9 SCC 631. This Court too has in a large number of cases concerning violations of fundamental rights by the police awarded compensation. These W. P. (C) Nos. 4756 & 5405 of 1997 Page 9 of 18 include Geeta v. Lt. Governor 75 (1998) DLT 822, Phoolwati v. National Capital Territory of Delhi 84 (2000) DLT 177, Nasiruddin v. State, 2001 CriLJ 4925, State v. Rameez [Order date 6th April 2009 in Crl. M.C. No. 12/2006], Sunita v. State of National Capital Territory of Delhi 151 (2008) DLT 192 and Tasleema v. State (NCT of Delhi) 161 (2009) DLT 660.
17. In the instant case, the violation of the constitutional right to life of the victims of the shoot out at Connaught Place by the personnel of the Delhi Police stands clearly established. The criminal culpability of the police personnel has been proved beyond reasonable doubt. It is imperative for this Court approached under Article 226 of the Constitution to provide compensation as a public law remedy for the constitutional tort committed by officers of the State. To recall the observations of the Supreme Court in D K Basu: (SCC, p. 439) "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."
18. Consequently, there can be in the present cases no doubt as to the liability of the State to compensate the Petitioners for the callous and wanton killing of the two unfortunate victims. The question, therefore, that remains to be determined is of the quantum of compensation. Again in D K Basu the Supreme Court pointed out that: "In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element."
Quantum of compensation in the case of Neema Goyal
19. Smt. Neema Goyal, Petitioner in W.P. (C) 4756 of 1997, has filed an affidavit dated 24th March 2011 in which, inter alia, it is submitted that Pradeep Goyal founded two W. P. (C) Nos. 4756 & 5405 of 1997 Page 10 of 18 industrial units, namely, Tirupati Cylinders Ltd. and International Cylinders Pvt. Ltd., in which he was the Director. Both the units were engaged in industrial production of LPG cylinders for supply to governmental agencies. It is stated that at the time of his death, the production in the said industrial units was in the initial stages and still the net profits were to the tune of Rs. 2 lakhs per annum. The annual income as per the last income tax return of Pradeep Goyal for the year 1996-97 was Rs. 95,280/-. The Petitioner used to reside in a four bed room house with her late husband and a two-year old minor son. After the death of Pradeep Goyal, the Petitioner Neema Goyal took employment as a Primary School Teacher and pursued her B.Ed. The Petitioner‟s son is a student of Class-X in DPS R.K. Puram. It is stated that on account of the loss of Pradeep Goyal, the Petitioner and her son had to undergo severe mental trauma for several years.
20. In determining compensation in such cases, the formula devised by this Court in Kamla Devi v. Govt. of NCT of Delhi 114 (2004) DLT 57 has been consistently followed in the later cases: Ram Kishore v. MCD 2007 VII AD 441, Ashok Sharma v. Union of India 2009 ACJ 1063, Ram Singh v. Union of India 2010 V AD (Delhi) 209, Swarn Singh v. Union of India [W.P. (C) 4242 of 2006 decided on 17th March 2010] and Yogita v. GNCTD 178 (2011) DLT 554. The „standard compensation for non-pecuniary losses‟ and „compensation for pecuniary loss of dependency‟ is to be calculated separately and added up to arrive at the total amount of compensation payable. The age, income and the number of dependents of the deceased are considered as relevant indicators. In Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 the Supreme Court held the standard compensation to be Rs. 50,000/- in 1989. Thereafter, inter alia, in the above mentioned cases, the standard compensation was computed by adjusting the amount based on the Consumer Price Index for Industrial Workers („CPI-IW‟), published by the Labour Bureau, Government of India as under:
Standard Compensation for Non-pecuniary Losses = 1989 Standard Compensation Average Consumer Price Index for Industrial Workers (CPI (IW)) when the accident occurred Average CPI (IW) for 1989 (1982 being the base year)
21. The average CPI-IW for March 1997, when the accident occurred, is 351 and the CPI-IW for 1989 is 171. Therefore, the standard compensation for non-pecuniary losses W. P. (C) Nos. 4756 & 5405 of 1997 Page 11 of 18 that each of the Petitioners is liable to be paid is 50,000 351 171 = 1,02,630/-.
22. To calculate the compensation for pecuniary loss of dependency, the multiplier method (multiplier value given in the Second Schedule of the Motor Vehicles Act, 1988 Yearly income of the deceased less the amount spent on himself or herself) is used. This is consistent with the procedure adopted in G.M., Kerala SRTC v. Susamma Thomas AIR 1994 SC 1631, Mrs. Sudha Rasheed v. Union of India 1995 (1) SCALE 77, U.P. State Road Transport Corporation v. Trilok Chandra (1996) 4 SCC 362, Smt. Kamla Devi v. Govt. of NCT of Delhi, Ram Kishore v. MCD, Ashok Sharma v. Union of India, Ram Singh v. Union of India, Swarn Singh v. Union of India and Yogita v. Govt. of NCT of Delhi. The method of calculating the multiplicand was explained in Kamla Devi v. Govt. of NCT of Delhi as under:
"This (the multiplicand) is calculated by dividing the family into units - 2 for each adult member and 1 for each minor. The yearly income is then to be divided by the total number of units to get the value of each unit. The annual dependency loss is then calculated by multiplying the value of each unit by the number of units excluding the two units for the deceased adult member."
23. The income tax return of Pradeep Goyal at the time of his death shows his annual income to be Rs. 95,280/-. His family included his wife and a minor son, Naman Goyal who was slightly above 2 years at that time. The value of each unit thus works out to Rs. 19,056/- (95280/5). Therefore, the multiplicand would be 57,168. (Gross annual income - the value of two units). Pradeep Goyal was around 34 years of age at the time of his death. Multiplying Rs. 57,168 by 17 as per the Second Schedule to the MVA 1988, a figure of Rs. 9,71,856/- is obtained, which constitutes the pecuniary compensation payable by the Respondents. The total compensation payable works out to Rs. 10,74,486/- (i.e. standard compensation for non-pecuniary losses Rs. 1,02,630 plus compensation for pecuniary loss of dependency Rs. 9,71,856). After accounting for interest and costs of litigation, the total compensation payable by the Respondents to Neema Goyal and her minor son is determined as Rs.15,00,000/-.
Quantum of compensation in the case of Jaspal Kaur
24. As regards Jagjit Singh, his family at the time of his death included Jaspal Kaur the W. P. (C) Nos. 4756 & 5405 of 1997 Page 12 of 18 Petitioner in WP (C) 5405 of 1997 and their two children, whose names are however not disclosed in the petition. The respective ages of the two children at that time of their father‟s death were twelve and nine years. They are adults as of date. As regards the compensation for pecuniary loss, Jaspal Kaur in an affidavit dated 21st March 2011 claims that at the time of his death, Jagjit Singh was 33 years old and was engaged in the business of selling agricultural crops grown on his farmland measuring about 60 acres in the grain mandi of M/s Saju Gula Ram Kurukshetra, Haryana. He is said to have earned income by sale and purchase of plots and built-up houses and the business of money- lending. It is further claimed that after his death loans to the extent of Rs. 50 lakhs given by him could not be recovered. It is stated that Jagjit Singh had collaborated with Pradeep Goyal in setting up the LPG bottling plant. If the said venture had commenced Jagjit Singh‟s income would have been even more substantial. Jaspal Kaur states that she has been looking after her parents-in-law who are not keeping well. For over 15 years the family has been living under immense financial insecurity since Jagjit Singh was the sole bread earner of the family.
25. There is not a single document placed on record to support the above claim. However, considering that it was a family of four including two growing children, with a reasonably decent standard of living, and considering that the age of Jagjit Singh is around the same age as Pradeep Goyal who died in the same accident, the total compensation payable by the Respondents to Jaspal Kaur and her two children i.e. standard compensation plus compensation for pecuniary loss, together with interest and litigation costs is determined as Rs. 15,00,000/-.
Unexplained delay in taking disciplinary action against the convicted police officers
26. While the present petitions were being heard it transpired that despite the police personnel being convicted by the learned ASJ on 16th October 2007 and sentenced on 24th October 2007 to imprisonment for life, each of them continued in service long thereafter. After their appeals were dismissed by this Court on 18th September 2009 nine of the convicted policemen were dismissed from service on 11th May 2010. However, ACP Rathi continued in service. He was ordered in 2000 to be reverted to the post of Inspector. This was, however, stayed by the Central Administrative Tribunal („CAT‟). Once he was W. P. (C) Nos. 4756 & 5405 of 1997 Page 13 of 18 convicted and sentenced for murder by the trial court in October 2007 there ought to have been no impediment to taking disciplinary action against him. Even after his appeal was dismissed by this Court on 18th September 2009 ACP Rathi continued in service. On 12th January 2011 on the above aspect, the Court passed the following order:
"6. This Court expresses its concern that a police officer who held the post of ACP (ad hoc) at the time of incident which took place on 31st March 1997, despite his conviction for the offence under Section 302 IPC by the learned trial court on 16th October 2007 and confirmation of the said conviction by this Court on 18th September 2009, continues to remain in service. It is also significant that nine of the other convicted policemen also continued in service and the order dismissing them from service was passed only on 11th May 2010.
7. This Court is informed that the Rules governing the terms and conditions of service of the personnel of the Delhi Police permit dismissal of service only after the appeal filed by the convicted police official is disposed of and not earlier. This Court expresses its surprise that there are such rules that permit police officials convicted of heinous crimes like murder to remain in service even after conviction by the trial court. The Secretary, Ministry of Home Affairs will examine this position and inform this Court whether it is unique to Delhi or prevails elsewhere in the country. It is a matter of great concern if the police officials convicted of heinous crimes, after full-fledged trial, are allowed to continue in service on the ground that their appeals against such convictions are pending disposal before the superior courts. A further disconcerting aspect of the matter is that as far as Shri Rathi is concerned, the explanation for not taking action against him is that superior officers were not clear as to who should pass the necessary orders.
8. The affidavit on the above aspect be filed by the MHA within four weeks from today, through a senior level officer not lower than the rank of Director."
27. Pursuant to the above order, an affidavit was filed by Dr. A.K. Saxena, Director in the MHA on 22nd February 2011 quoting an Office Memorandum („OM‟) dated 4th March 1994 issued by the Department of Personnel and Training („DOPT‟) which, inter alia, reads as under:
"when a person is convicted by a Criminal Court the same shall remain in force until and unless it is reversed or set aside by a competent court in appeal. The mere filing of an appeal and/or stay of the execution of the sentence do not take away the effect of conviction, unless the appeal is allowed and the conviction is set aside by the appellate court..... the competent disciplinary authority may proceed with the W. P. (C) Nos. 4756 & 5405 of 1997 Page 14 of 18 institution/completion of disciplinary proceedings, including imposition of the penalty as prescribed in the relevant disciplinary rules....."
28. The MHA in the said affidavit admitted that in terms of the above OM the mere filing of an appeal against a conviction and/or stay of the execution of the sentence does not take away the effect of conviction and therefore "there is no bar on the competent authority not to institute/complete the disciplinary proceedings as prescribed in the relevant rules". The affidavit stated that a letter to that effect had been written on 8th February 2011 to the Director, MHA by the Under Secretary. It is stated that pursuant to the order dated 12th January 2011 passed by this Court a meeting was convened on 9th February 2011 by the MHA which was attended by the officials of the GNCTD and the Delhi Police. The meeting was informed that a proposal to dismiss ACP Rathi from service under Rule 19 of the CCS (CCA) Rules, 1965 had been sent to the LG for approval. It is admitted that it was only after the CBI sent a copy of the judgment of this Court dated 18th September 2009 a decision was taken to dismiss nine of the police personnel and even this was delayed by over five and a half months "on account of administrative reasons such as posting of delinquent officers together for taking joint action." However, Respondent No. 2 regretted such delay and clarified that "the said delay was not deliberate and without any motives but only because of the abovesaid administrative reasons." As regards ACP Rathi the explanation offered by the GNCTD was that "owing to several court cases on staying the reversion as Inspector (Executive) from the rank of ACP (Ad-hoc) of Shri S.S. Rathi, there was confusion as to who is the competent disciplinary authority to take appropriate action." Since then appropriate action in terms of Rule 19 CCS (CCA) Rules, 1965 was taken to seek approval of the LG for the "proposed dismissal" of ACP Rathi.
29. Since the questions arising from the Court‟s earlier order dated 12th January 2011 were not satisfactorily answered, Mr. Saxena was asked to file a further affidavit. This was filed on 4th May 2011. Para 7 of the said affidavit reads as under:
"7. It is stated that in terms of Rule 11(1) of Delhi Police (Punishment & Appeal) Rules, 1980, an official of Delhi Police may continue to remain in service even after his conviction if the first appeal filed by him remains W. P. (C) Nos. 4756 & 5405 of 1997 Page 15 of 18 pending. Such Rule may create functional problem if first appeal remain pending for years together. The Respondent No. 1 has taken cognizance of this anomaly in Delhi Police (Punishment & Appeal) Rules, 1980 and has already taken up the matter with the Home Department of Government of National Capital Territory of Delhi for suitable amendment of the said provision of the Rule."
30. It is, therefore, plain that in terms of Rule 11(1) of Delhi Police (Punishment & Appeal) Rules 1980, an official of Delhi Police can continue to remain in service even after his conviction for murder as long as the appeal filed by him remains pending. It is indeed a matter of grave concern that policemen convicted and sentenced for murder have, under shelter of the above rule, continued in service in Delhi Police for over twelve years after the murder and for nearly three years after their conviction. To compound this, the leader of the team of errant policemen, ACP Rathi has continued in service even as on the date of the filing of the affidavit dated 4th May 2011 by the MHA. By this time even the Supreme Court had dismissed his appeal.
31. It can hardly be a matter of debate that there must be zero tolerance for criminal behavior by men in uniform entrusted with the task of law enforcement and the protection of the life and liberty of persons. Policemen must be held to the highest standards of probity and conduct. It is not a little surprising that even after the anomaly was pointed out by the Court, the MHA and the GNCTD were still discussing and deliberating on whether to take disciplinary action against ACP Rathi. Their response to the inexplicable delay in the action against ACP Rathi and the nine other policemen is reflective of an approach that is typically lackadaisical. Both the MHA and the GNCTD have to be held answerable and accountable in law for this obvious failure to take prompt disciplinary action against policemen convicted and sentenced for murder of two innocent citizens. The Court is therefore constrained to direct the MHA to institute an appropriate inquiry by a senior level officer not below the rank of Additional Secretary in the MHA to inquire into the facts and circumstances under which there was unconscionable delay in taking disciplinary action against the ten convicted policemen and fix responsibility on the concerned officers of the MHA and the GNCTD. Further, it is expected that the W. P. (C) Nos. 4756 & 5405 of 1997 Page 16 of 18 proposed amendment to Rule 11(1) will be carried out without delay.
32. This case serves to highlight the steps that ought to be taken, within the framework of the legal system, in a situation of proven police violence resulting in violation of human rights. One is to bring the offenders to trial in accordance with the processes of the criminal justice system. The other facet of accountability is to ensure that the offenders, employed as they are by the state law enforcement machinery, are proceeded against disciplinarily. A further aspect is that of reparation. The constitutional court can be approached for directions to the state to appropriately compensate the victims of the violence. Each of these proceedings is independent of the other. The purpose each serves is different. The standard of proof in each may differ. Yet, they are imperative for enforcement of the rule of law and for the rendering of complete justice. The constitutional courts, entrusted with the responsibility of holding the State and its agencies accountable in law for the tortuous and criminal acts of their servants, can and should play a significant role in ensuring this.
Directions
33. The writ petitions are disposed of with the following directions:
(i) The Respondents will within a period of six weeks from today deposit in this Court, by a cheque or draft in the name of the Registrar General, a sum of Rs.15 lakhs being the compensation amount payable to the Petitioner Neema Goyal and her son Naman Goyal.
Of the said amount a sum of Rs.7,50,000 will be paid to Neema Goyal by the Registrar General on proper identification, within a period of one week thereafter. The balance amount of Rs.7,50,000 will be placed in a fixed deposit with a nationalised bank in the name of Naman Goyal. After he attains majority, Naman Goyal can withdraw the amount in the fixed deposit together with the interest accrued thereon.
(ii) The Respondents will within a period of six weeks from today deposit in this Court, by a cheque or draft in the name of the Registrar General, a sum of Rs. 15 lakhs being the compensation amount payable to the Petitioner Jaspal Kaur and her two children. The W. P. (C) Nos. 4756 & 5405 of 1997 Page 17 of 18 Registrar General will within a week thereafter pay Rs. 5,00,000/- each to Jaspal Kaur and her two children on proper identification.
(iii) The Secretary MHA will ensure that the directions contained in para 30 of this judgment are implemented and file a compliance report in this Court within a period of twelve weeks. A certified copy of this judgment will be delivered to the Secretary MHA for compliance within five days.
S. MURALIDHAR, J 4th July, 2011 akg W. P. (C) Nos. 4756 & 5405 of 1997 Page 18 of 18