Andhra HC (Pre-Telangana)
Smt. Kolli Yerukulamma vs The Chairman, Visakhapatnam Port Trust on 10 July, 1996
Equivalent citations: 1996(4)ALT554
ORDER G. Bikshapathy, J.
1. Negligence and utter callouseness on the part of employees of the Visakhapatnam Port Trust caused great havoc to certain unfortunate parents and innocent children. 13 school going children became the victims of premature call by Him and 36 children are groaning under severe disabilities.
2. The Port Trust is running educational institutions for the benefit of children and dependents of its employees. One high school is situated at Saligrampuram. Preparations were being made by the school children for celebrating the independence day 15th August, 1990. As fate would have it, some of the children left for heavenly abode without even saluting the national flag and some were content with witnessing through their hearts while lying on the hospital beds. The joyous and untiring children unmindful of rain assembled at the school premises on 14th August, 1990 for decorating the building to unfurl the national flag on tine next day. As there was heavy rain at 9 a.m. and class rooms were yet to be opened, they were standing in the varandahs. At about 9.30 a.m. there was a sudden collapse of brick columns resulting in the fall of beams and roof slabs of first and second floor. The sudden collapse entrapped the children. The result was instantaneous death for 13 children and multiple injuries to 36 children.
3. The news spread like wild fire. The Government of India sprung into action and constituted a fact finding committee. Ex-gratia of Rs. 25,000/- was paid to the parents of each child died in the collapse. To some of the disabled children ex-gratia and suitable employment was given. The children who received minor injuries were given Rs. 5,000/- ex-gratia. I shall discuss these details at later stage.
4. The Committee constituted by the Government submitted its report holding the Officers of the Port negligent and inefficient and suggested remedial measures.
5. A letter was addressed to the Supreme Court of India by one of the parents/ who lost her child and sought for relief to the grief-stricken parents and suffering children. The said representation was transmitted to this Court. It was decided by the Court to treat the said representation as a Writ Petition. The Legal Aid and Advice Committee of this Court appointed Sri A. Sridhar, Advocate to assist this Court on behalf of the affected persons. That is how this P.I.L. case came up for hearing.
6. In order to give quietus to the prolonged sufferings of the parents and children, I directed the learned District Judge, Visakhapatnam by an order dated 30-1-1996 to conduct enquiry with regard to the details of children who died in the accident and also in respect of disabled or injured ones together with the social and economic status of their parents etc. The learned Judge took pains to conduct an elaborate enquiry. He recorded the statements of parents, officers of the Port, Medical Officers etc. He submitted a detailed report on 19-3-1996. After, the report is received the parties were furnished with the report and matter was taken up for hearing.
7. The learned Counsel for the petitioners submits that on account of negligent and callous discharge of duties by the concerned officers, the building developed cracks and on the fateful day it had collapsed - denouncing innocent lives. Therefore, the Port Trust, a State within the meaning of Article 12 is vicariously liable for the acts committed by its Officers. The right to life as guaranteed under Article 21 of the Constitution has been grossly violated and the Port Trust is liable to pay exemplary damages. The amounts paid by the Respondent is not a sufficient compensation and thus he sought suitable direction to the Respondent.
8. On the other hand, the learned senior Counsel for Respondent submits that the representation cannot be treated as a Writ Petition and dealt with as public interest litigation. He further submits that the committee set up by the Government found fault with the officers and accordingly compensation was granted to the victims. The sufficiency or other wise of the compensation cannot be gone into by this Court under Article 226 of the Constitution of India. The only course left open for the sufferers is to claim damages before the competent Court He further submits that even in cases of such calamities, the Supreme Court declined to assess the damages and granted liberty to the affected to approach the Civil Court See: M.C. Mehta and Anr. v. Union of India and others, .
9. Before considering various aspects of the case, I may state that the Supreme Court as early as in 1980, while laying down the parameters of jurisdiction of the High Court under Article 226 of the Constitution of India held that Article 226, however restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice; and, more importantly/ this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand (See: Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 (1) LLJ 137).
10. I have gone through the report submitted by the Committee and find that the complete responsibility was fixed on the concerned officers. Their conclusion at para 8 was:
"There were deficiencies at every stage of the Ill-fated building right from planning, design, execution and maintenance (as brought out in para 5). The effects of these deficiencies manifested themselves in the form of cracks and crushing of bricks at the base of the brick pillars as early as May, 1984. Though these signs of distress were noticed and even some remedial measures evolved, they were not eventually implemented. Thus, the deficiencies were allowed to continue causing progressive deterioration of the structural integrity of the brick pillars which must have been badly aggravated by the unprecedented rainfall in May, 1990, rainfall during the few days prior to and on the fateful day (14-8-1990) of the incident and also the possible heavy intensity of the life loading on the varandah floors on the day of the incident culminating in the final collapse of the front portion of the building.
11. Thus right from the planning stage till the execution, there were deficiencies. Even in respect of maintenance, the officers turned deaf-ear when the complaints were made by the Head Master. The learned Counsel for the Respondent fairly conceded that there were lapses on the part of the officers and disciplinary actions were also initiated. The details of punishments awarded are not forthcoming.
12. The public interest litigation in our country has taken multi-dimensional character. The age old adversorial system has been given a go-by. With the advent of judicial activitism, letters, newspaper reports, complaints by public spirited persons, social action groups bringing to the notice of the Court violation of Fundamental Rights were dealt with treating them as Writ Petitions. The constitutional Courts in the country granted various reliefs including suitable compensation. It is now well settled that in furtherance of constitutional obligations this Court is empowered to innovate new methods of strategies for the purpose of securing enforcement of the fundamental rights more particularly in the case of poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. Where there is a violation of fundamental or other legal rights of a person or class of persons who by reason of poverty or social or economic disability cannot approach the Court of law for justice, public spirited persons or social action groups can bring to the notice of the Court by way of letter even. Such letters should not be rejected nor rigid attitude should be adopted by the Courts. Otherwise the object and purpose of epistolary jurisdiction would be frustrated (See: 1st cited supra). In the instant case, the representation was filed by none else than one of the affected parents herself raising common grievance. Therefore, in view of the pronouncements of the Supreme Court, the representation deserves to be treated as Writ Petition.
13. The next issue that arises for consideration is whether this Court is expowered to award compensation for violation of fundamental rights? This issue has been engaging the attention of the Supreme Court time and again, and now it is finally settled, that the Court is empowered and entitled to award compensation where it is established that there was gross violation of Fundamental Rights. It is not disputed that the Visakhapatnam Port Trust is a 'State' within the meaning of Article 12 and hence its actions are amenable to Judicial review under Article 226 of the Constitution of India and performance of its functions are subject to the constitutional limitation of fundamental rights.
14. In the instant case, the collapse of roof is admitted and the cause for collapse has been attributed to the negligent performance of duties by the concerned officers. The Supreme Court in a catena of cases directed the State to pay compensation in respect of custodial deaths, illegal detentions, mysterious deaths, victims of rape, attrocities on prisoners etc. See: State of Maharashtra and Ors. v. Ravikant S. Patil, , Sunil Batra v. Delhi Administration and others and Charles Gurmukh Sobrajv. Delhi Administration and others, AIR 1978 SC 1675, 1978 CriLJ 1741,( 1978 ) 4 SCC 494, [ 1979 ] 1 SCR 392, Rudul Sah v. State of Bihar and another, , Sunil Gupta and Ors. v. State of Madhya Pradesh and others, , Arvinder Singh Bagga v. State of U.P. and others, , Kewal Pati (Smt.) v. State of Uttar Pradesh and others, , Francis Coralite Mullin v. The Administrator, AIR 1981 SC7 46, Union Territory of Delhi and others, A.K. Roy v. Union of India and another and Than Singh Tyagi v. Union of India and another, and Dr. Vasant Kumar Pandit v. Union of India, SAHELI, A Women's Resources Centre through Ms. Nalini Bhanot and Ors. v. Commissioner of Police, Delhi and others, , Peoples' Union for Democratic Rights through its Secretary and Anr. v. Police Commissioner, Delhi Police Head Quarters and another, . State is liable for tortious acts committed by its employees in the course of their employment. It has been held by the Supreme Court in State of Rajasthan v. Mst. Vidhyawati, "Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and therefore, of authorising or instigating one, and that he could not be sued in his own Courts, in India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract and the Common Law immunity never operated in India."
15. The Supreme Court in Rudual Sah case (supra), a case of illegal detention even after acquittal while dealing with claim for damages for violation of Article 21, said:
"It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a Suit instituted in a Court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus Petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass an appropriate order for the payment of compensation in this Habeas Corpus petition itself.
We cannot resist this argument, We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government Happily, the State's counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service of his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers".
In this case interim compensation was awarded with liberty to file suit.
16. In Bhim Singh, MLA v. State of J & K and others, , the Supreme Court held as follows:
"We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is not established by the decisions of this Court in Rudual Sah v. State of Bihar (5th cited supra) and Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded/ the mischief of malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from to-day. The amount will be despoited with the Registrar of this Court and paid to Shri Bhim Singh."
In M.C. Mehta and Anr. v. Union of India and others (1st cited supra), the compensation was not awarded as the question whether Shriram Industry was an authority under Article 12 was not decided. The relevant para is extracted below:
"Since we are not deciding the question as to whether Shriram is an authority within the meaning of Article 12 so as to be subjected to the discipline of the fundamental right under Article 21, we do not think it would be justified in setting up a special machinery for investigation of the claims for compensation made by those who allege that they have been the victims of oleum gas escape. But we would direct that Delhi Legal Aid and Advice Board take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the approrpiate Court for claiming compensation against Shriram. Such actions claiming compensation may be filed by the Delhi Legal Aid and Advice Board within two months from today and the Delhi Administration is directed to provide the necessary funds to the Delhi Legal Aid and Advice Board for the purpose of filing and prosecuting such actions. The High Court will nominate one or more Judges as may be necessary for the purpose of trying such actions so that they may be expeditiously disposed of. So far as the issue of relocation and other issues are concerned the Writ Petition will tome up for the hearing on 3rd February, 1987."
17. The Administrative Law of accountability of public authorities for their arbitrary and ultra vires action has taken many strides. It is now accepted by the Constitutional Courts in India and English Courts that State is liable to compensate for loss or injury suffered by its citizen due to arbitrary action of its employees. The theoretical concept that King can do no wrong had been abandoned in England itself and the State is now held responsible for tortious acts of its servants. The First Law Commission constituted on the liability of the State in tort, observed that:
"the old distinction between sovereign and non-sovereign functions should no longer be invoked to determine the liability of the State."
Friedman observed that:
"it is now increasingly necessary to abandon the lingering fiction of a legally indivisible State and on a federal constitution of the State and for substituing to it, the principles of liability, where the State either directly or indirectly are incorporated public authorities engaged in activities of a commercial, industrial or managerial cadre. Proper test is not an impracticable distinction between the Governmental and non- Governmental functions, but the nature and form of the activity in question."
Thus, the law always maintained that the public authorities who are entrusted with the statutory functions cannot act negligently. As far back as 1878, the law was succinctly explained in Geddis v. Proprietors of Bann Reservoir, (1878) 3 App. Cas. 430 thus:
"I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing what the Legislature has authorised, if it be done negligently".
The sovereignty under our constitution vests in the people. Therefore, every part of the constitutional machinary is obliged to be people oriented. No functionary in the exercise of power can claim immunity unless protected by the statute itself. The public authorities acting in gross violation of the constitutional or statutory provisions oppressively are accountable for their behaviour before the authorities created under the statute or the Courts entrusted with the responsibility of maintaining the Rule of Law. Though the word compensation has not been defined under the Constitution/ a dictionary meaning says "compensate or being compensated; thing given as re- compensate".
18. As observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome and another, 1872 AC 1027, the jurisdiction and power of the Courts to indemnify a citizen for injury suffered due to abuse of power by public authorities, is enjoined on the Court on the principle that:
"An Award of exemplary damage can serve the useful purpose in indicating the strength or law. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities i.e., provided by the Rule of Law. It acts as a check on arbitrary and capricious exercise of power."
Lord Devlin observed in Rookes v. Barnard and others, 1964 AC 1129 thus:
"the servants of the Governments are also the servants of the people and use of their power always must be subordinate to their duty of service."
Thus, a public functionary if he acts maliciously or oppressively and the exercise of powers results in harassment and agony, then it is not an exercise of power, but it is an abuse, he who is responsible for it must suffer it. Harassment of a common-man by a public authorities is socially abhorrent and legally impermissible. Therefore, award of compensation for harassment by public authorities not only compensate the individual, but also satisfies him personally, and helps in curing social evil. It may result in improving the work culture and help in changing the outlook. Wade in his book on Administrative Lav; has observed that:
"it is to the credit of public authorities that there are simply few reported Englih decisions in this form of malpractice namely misfeasance in public office which includes malicious use of power, deliberate maladministration and perhaps other unlawful acts causing injury. Reference to some of the English Gases is necessary in this regard."
In Ashhy v. White, (1703) 2 Ld. Rayam 938, tine House of Lords invoked the principle of ubi jus ibi remedium in favour of an elector who was wrongfully prevented from voting and decreed the claim of damages. The ratio of this decision has been applied and extended by English Court in various situations. In Roncarelli v. Duplessis, (1959) 16 DLR(2d)689, the Supreme Court of Canada awarded damages against the Prime Minister of Quebec personally for directing the cancellation of a restaurant-owner's liquor licence solely because the licensee provided bail on many occasions for fellow members of the sect of Jehovah's witnesses, which was then unpopular with the authorities. It was observed that "what could be more malicious man to punish this licensee for having done what he had an absolute right to do in a matter utterly irrelevant to the Alcoholic Liquor Act? Malice in the proper sense is simply acting for a reason and purpose knowingly foreign to the administration, to which was added here lawry'. In Smith v. East Eloe Kural District Council, 1956 AC 736, the House of Lords held that an action for damages might proceed against the Clerk of a local authority personally on the ground that he had procured the compulsory purchase of the plaintiff's property wrongfully and in bad faith. In Farrington v. Thomson, 1959 VR 286, the Supreme Court of Victoria awarded damages for exercising a power the authorities knew they did not possess. A licensing inspector and a police officer ordered the plaintiff to close his hotel and cease supplying liquor. He obeyed and filed a suit for the resultant loss. The Court observed, "Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer'. In Wood v. Blair, The Times 3, 4, 5 July 1957, a dairy farmer's manageress contracted typhoid fever and the local authority served notices forbidding him to sell milk, except under certain conditions. These notices were void, and the farmer was awarded damages, on the ground that the notices were invalid and that the plaintiff was entitled to damage for misfeasance'. This was done even though the finding was that the officers had acted from the best motives.
19. A doubt arose whether the Constitutional Court can grant compensation for violation of Fundamental Rights. The Supreme Court in Smt. Nitabati Behera @ Lalita Behera v. State of Orissa and others, observed:
"It would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceedings under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle."
While distinguishing the consequences of tortuous acts of the servants of State and the liability of State for contravention of Fundamental Right, the Supreme Court observed that "the State is liable for compensation for contravention of fundamental rights and the doctrine of sovereign immunity cannot be pressed into service and it is not a defence to the Constitutional remedy under Article 32 and 226 of the Constitution of India. This remedy enables the Constitutional Courts to award compensation for violation of fundamental rights, when only the practicable mode of enforcement of fundamental rights can be the award of compensation."
The Supreme Court after referring to the decision of Privy Council in Maharaj v. Attorney General of Trinida, 1978 (2) All E.R. 67 observed that:
"enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.
It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, 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, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Radul Sah (14th cited supra)and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights".
The Supreme Court in Smt. Nilabati Bahera's case (24th cited supra), while clarifying the position with regard to the award of compensation for violation of fundamental rights, the Supreme Court clarified the principle laid down in Rudual Sah (14 supra) and held thus:
"The above discussion indicates the principle on which the Court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudual Sah (14th cited supra) and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This - is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal, distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son."
In concurring judgment Dr. Anand, J. observed:
"Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India. It is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the Courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law: While concluding his first Hamlyn Lecture in 1949 under the title "Freedom under the Law" Lord Denning in his own style warned:
"No one can suppose that the executive will never be guilty of the sins that are common to ail of us. You may be sure that they will sometimes do things which they ought not to do; and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by the new and up to date machinery, by declarations, injunctions and actions for negligence..... This is not the task for Parliament......the Courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare State; but abused they lead to a totalitarian State. None such must ever be allowed in this country."
Thus, the infraction or invasion of fundamental rights guaranteed under Article 21 of the Constitution of India does not always relegate the citizen to the ordinary remedy of the Civil Suit to claim damages for tortious acts of the State though that remedy in private law is available to the aggrieved party, The citizen complaining of infringement of indefeasible right under Article 21 of the Constitution of India cannot be made to believe that there is no relief under the Public Law by Courts exercising the Writ jurisdiction. He held that the Courts have to evolve new tools to give relief by moulding it according to the situation with a view to preserve and protect the Rule of Law. He further stated that the word Doctrine of Relegating the aggrieved party to the remedies available in the Civil Law limits the Role of the Courts too much as Protector and Guarantor of the fundamental rights of the citizens. Therefore the Courts have the obligation to satisfy the social aspirations of the citizens as the Courts and the Law of people expected to respond their aspirations. While distinguishing the remedies under public law and private law, the learned Judge observed as follows:
"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 infeasible 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 of protection of fundamental rights, it does so under the public law by way of penalising the wrong-doer 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 to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its pubic law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law.
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 exersise of its jurisdiction under Article 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. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar (5th and 14th cited supra), granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the Civil Law to the aggrieved party where the Courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so, the Courts take into account not only the interest of the applicant and the respondent but also the interest of the public as a whole with a view to ensure that public bodies of 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. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the Courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J."
20. In a recent case, the Supreme Court again examined the parameters of the Article 21 and 38 in Consumer Education and Research Centre & others v. Union of India and others, , dealing with Article 21 Ramaswamy, J. speaking for the Bench held that "award of compensation in proceedings under Article 32 or 226 is a remedy under public law."
After referring to Rudul Sah case (supra) and Smt. Nilabai Behra @ Lalita Behera case (supra), the learned Judge, held thus:
"It is, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law."
21. While granting various directions to the Government and the employers, the Court also directed the State of Gujarat who send all the workers in the asbestos industries to detect whether they are suffering from asbestosis, in case of positive finding each worker was directed to be paid compensation of Rs. 1 lakh by the concerned factory or industry within a period of three months from the date of the certification by the National Institute of Occupational Health.
22. Thus, this Court comes to the irresistible conclusion that the State or instrumentalities of State are liable to compensate the citizen for the injuries, harassment or humiliation suffered by them on account of violation of the fundamental rights. It is also made clear that the constitutional remedy is practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person.
23. In this regard, it is apt to refer to the declaration and covenants on human rights. Article 3 of Universal Declaration of Human Rights, 1948 says "Every one has the right to life, liberty and security of person". Article 6(1) and 9(1) of International Covenant on Civil and Political Rights, 1966 read thus:
Article 6(1):
"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life"
"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law".
India is a party to the above international covenants. The human rights embodied in the covenants have been effectively and substantively protected by the Constitution and also the dynamic interpretation given to right to life and its sweep. However, with a view to better protect the human rights and keeping in view the social realities and emerging trends of nature of crime and violence, the Parliament enacted Act 10 of 1994, The Protection of Human Rights Act, 1993, constituting National and State Human Rights Commissions to deal with human rights violation. The expression "human rights" under Section 2(d) of the Act means "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India". The human rights have not only been incorporated in the constitutional document, but also further affirmed in the recent enactment i.e., the Protection of Human Rights Act, 1993 (No.10 of 1994). Thus, the human rights have achieved great and important values. Not only constitutional protection is extended, but also statutory protection is now available under the Act.
24. Therefore, the question that arises for consideration is the relief that can be granted to the affected parties. It cannot be disputed that even if a claim is made before the Civil Court, it is bound to be decreed, but I can not fore-see the quantum of damages which might be awarded. In this regard, I may say that Sri K. Satyanand, the District Judge in-charge has taken great pains to collect all the relevant material, such as medical reports, social and economical status of parents, disability of the children suffered by them on account of the accidents and the grievances of the parents. During the course of enquiry by the learned District Judge, the Official who was examined for the Port Trust had categorically stated that they would abide by the decision of the High Court on question of the Award or other relief. I record my appreciation for the good work turned out by the learned District Judge.
25. The learned Counsel for the respondent submits that even assuming that this Court is empowered to award compensation, the method of ascertaining the quantum should be on the basis of multiplier system available under the Motor Vehicles Act. He relies on the judgment of M. Jagannatha Rao, J. (as he then was) reported in Bhagwan Das v. Mohd. Ariff, . I am not able to appreciate this contention. The relief granted by this Court under Article 226 is purely discretionary and it is in the nature of exemplary damages for violation of fundamental rights. Thus public law remedy is independent of the rights available to the sufferer under private law. The Supreme Court admittedly did not lay down any yard-stick or guide lines as to the assessment or quantification of compensation. Therefore, the principle of 'just and reasonable' has to be applied in such cases.
26. It is admitted that 13 children died on the spot and the parents of the children were given ex-gratia of Rs. 25,000/- each. In cases of the injuries causing permanent disability, the Port Trust not only paid ex-gratia, but also deposited a sum of Rs. 1 lakh in the name of the respective injured children. In some cases employment was also provided. 25 children got injuries and as per the medical report, these injuries have no impact either on the mental or physical facul ties. Coming to the compensation to the parents of the deceased children, only a sum of Rs. 25,000/- was paid while in case of disabled children compensation ranging from Rs. 1,10,000/- to Rs. 1,35,000/-was paid apart from granting relief of employment. It is the report of the learned District Judge that the parents of the deceased children come from a lower strata of society and they are socially and economically backward. Under these circumstances, I direct the Respondents to pay a further compensation of Rs. 1 lakh each to the parents of each deceased child. I also further direct that the Port Trust shall provide employment to one eligible member in the family of the deceased child. If no such employment is found to be feasible, I direct that a further compensation of Rs. 50,000/- shall be paid to them.
27. Coming to the relief to the children, who sustained permanent disability, the learned District Judge enlisted the names of 11 children with permanent disability with their percentage of disability:
Sl. Name of the child % of disability
No. (Permanent in nature)
(latest figure)
1. Peethala Ramesh S/o P. Babu Rao 90%
2. Mathe Kantha Raju D/o M.C.B. Swamy 80%
3. Mylapalli Naga Prasad S/o M. Eswararao 80%
4. Pinisetti Radhika D/o P. Madangopal 60%
5. Md. Asif Hazri S/o Md. Surajuddin Khan 60%
6. Kona Ratna Sarita D/o K. Srinivasa rao 30%
7. B. Appa Rao S/o B. Jogi 30%
8. G. Chandra Rao S/o G. Jagannadharao 20%
9. Kasipuram Sasidhara Kumar
S/o K. Bhujangarao 15%
10. Seelam Kanakaraju S/o Pallemachetty 10% (15% accroding
to the doctor
who treeted him
previously)
11. Emandi Trinadha Rao S/o E. Ramarao 10%
The persons at Sl. Nos. 1 to 5 who received permanent disability between 60% and 90% shall be paid at the flat rate of Rs. 60,000/- each apart from depositing Rs. 1 lakh made in their respective names. Therefore, the balance amount of compensation shall be paid to them. In respect of percentage of disability between 20% and 30% acquired by Kona Ratna Saritha, B. Appa Rao, G. Chandra Rao, they shall be paid compensation of Rs. 30,000/- each while the persons who suffered disability between 10% and 15% shall be paid Rs. 20,000/-. Accordingly, the difference amount shall be paid to them. The Visakhapatnam Port Trust shall also provide employment to the permanent disabled children at Sl. No. 1 to 11 (excluding already employed) after they attain the age of eligibility as resolved by the Board in Resolution No. 85/90-91 dated 11-1-1990. With regard to the other children, who did not suffer major injuries and the injuries sustained have no effect on the physical and mental capabilities, they shall be paid a sum of Rs. 20,000/- each and they shall also be given preference in the matter of employment. The respondent Port Trust shall pay a sum of Rs. 5,000/- to the High Court Legal Aid and Grievance Committee and a further sum of Rs. 2,000/-to Sri Sridhar, the learned Advocate, who conducted the case on behalf of the parents of the children. The entire exercise shall be done within a period of two months from the date of receipt of this order.
28. The Writ Petition is allowed to the extent indicated above with costs.