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2000 DIGILAW 66 (CAL)

University of Calcutta v. Rabindra Nath Ghosal

2000-02-07

MAHEMMAD HABEEB SHAMS ANSARI, S.B.Sinha

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JUDGMENT S.B. Sinha, J.: Failure to publish the result of an examination on the part of the University would result in grant of damages or not is the question involved in this appeal. 2. The writ petitioner-respondent appeared at the M.A Examination held in the month of November, 1983 as a private candidate. In the year 1985 results were published which in the case of petitioner was not declared being incomplete; the reason being that in the tabulation chart 2 marks had been shown in respect of one paper viz. 08 and 04. The petitioner took his admission in the Law Course in the year 1988. 3. On or about 10.12.1990 he made a representation whereafter allegedly on 6.4.1991 the Controller placed the matter before Vice-Chancellor whereupon it was directed that the highest number received by the petitioner should be granted. Allegedly a mark-sheet had been issued prior to the filing of the writ application but the petitioner filed a writ application in May, 1991 claiming, inter alia, the following reliefs:- "(a) A writ or direction and/or order in the nature of Mandamus commanding the respondents to publish forthwith his complete results with regard to his performance at the M.A. Examination in Islamic History for the year 1983 under communication to him along with his relevant original Mark Sheet and Diploma/Certificate; (b) A Writ or direction and/or order in the nature of Certiorari commanding the respondents to certify and transmit to this Hon'ble Court the entire records of the case relating to the petitioner's letter dated 12th March, 1991 being annexure 'F' of this application, so that conscionable justice may be done for publishing the petitioner's results with regard to the M.A. Examination in Islamic History of the year 1983; (c) An interim order calling upon the respondents to dispose of the petitioner's representation contained in his letter dated 12th March, 1991 to the Controller of Examinations, University of Calcutta, being Annexure 'F' of this application within such period as this Hon'ble Court deems fit and proper." 4. The learned trial Judge in terms of his judgment under appeal, inter alia, held that the University has failed and/or neglected to publish the result of the writ petitioner, as a result whereof a serious injustice has been done to his case. The learned trial Judge in terms of his judgment under appeal, inter alia, held that the University has failed and/or neglected to publish the result of the writ petitioner, as a result whereof a serious injustice has been done to his case. It was held that by reason of acts and commissions on the part of the appellant-University, the writ petitioner has suffered immense damages. The learned Judge observed:- "A valuable life has been made to suffer harshly at the hands of the authorities of the Calcutta University by sheer neglect of the authorities and the petitioner was kept in darkness officially of his result for six years one month and six days. Had this crime been committed in the United State or in any European country the petitioner would have been compensated with damages in millions of dollars but, unfortunately, in spite of all the protection guaranteed to citizens in India in the Constitution of Justice, Liberty, Equality and Fraternity, the citizens are being treated in a shabby way and no justice is meted out to them by the black hands of the incompetent autocrat authorities in various walks of life. Whenever an injustice is done to an individual and one pleads for justice, as in the instant case, an attempt is made to gag him and to label him as culprit with counter allegations instead of accepting the guilt fairly with the spirit of healing the wound." 5. The learned Judge took a serious view of the matter as the petitioner had lost six years of valuable time and has also crossed the age of 40 years and in terms of the said finding directed the appellant-University and its Vice-Chancellor to pay a sum of Rs. 60,000/- as monetary compensation and damages by way of consequential relief and further awarded cost of 200 Gms. 6. Mr. Jayanta Biswas, the learned Counsel appearing on behalf of the appellant has raised two questions in support of this appeal. The learned Counsel firstly submitted that the factual event clearly shows that the appellant also contributed to the negligence, if any, of the University by not filing a representation within a reasonable period despite the fact that he had knowledge therefor as he had been prosecuting his courses of studies in Law Faculty from 1988 to 1990. The learned Counsel firstly submitted that the factual event clearly shows that the appellant also contributed to the negligence, if any, of the University by not filing a representation within a reasonable period despite the fact that he had knowledge therefor as he had been prosecuting his courses of studies in Law Faculty from 1988 to 1990. According to learned Counsel, the petitioner had neither made any prayer for compensation nor the writ application contains the requisite pleading in this regard. It has been pointed out that the learned trial Judge had erred in directing constitution of the committee presided over by a Retired Judge of this Court and based his finding only on the basis of the said report which was submitted on 12.7.1991. 7. Mr. Biswas would urge that service of demand of justice is a prerequisite for issuance of a writ of or in the nature of Mandamus and as the necessary relief had been granted to the writ petitioner immediately after service of demand of justice by way of representation made by the writ petitioner, no case had been made out for grant of damages. In any event contends the learned Counsel, if the negligence of the appellant was criminal in nature as had been observed by the learned trial Judge, a criminal case could have been instituted but damages could not have been awarded against the appellant without measuring the losses and damages allegedly suffered by the writ petitioner, It has been pointed out that the writ court in exercise of its jurisdiction under Article 226 of Constitution of India mayor may not grant damages and the right of the parties in that regard is to file a Money Suit where a finding of fact can be arrived at on the quantum of damages allegedly suffered by the plaintiff upon appreciation of evidence adduced in this regard. Reliance in this connection had been placed on Common Cause, a Registered Society vs. Union of India & Ors., reported in AIR 1999 SC 2979 . 8. Mr. Das, the learned Counsel appearing on behalf of the writ petitioner respondent, on the other hand, submitted that this court in exercise of its jurisdiction under Article 226 of the Constitution of India is entitled not only to enforce the fundamental rights but a Writ can be issued for other purposes also. 8. Mr. Das, the learned Counsel appearing on behalf of the writ petitioner respondent, on the other hand, submitted that this court in exercise of its jurisdiction under Article 226 of the Constitution of India is entitled not only to enforce the fundamental rights but a Writ can be issued for other purposes also. Such jurisdiction of this court is not confined only to issuance of prerogative writs as has the practice in England and furthermore, the court can mould the relief and in appropriate cases even ignore technicalities. Delay, according to the learned Counsel, is not an absolute bar in grant of proper relief by the High Court. As in this case urges Mr. Das, a report submitted by a Retired Judge of this court is in question, the case has assumed the character of public interest litigation. It has been submitted that the right to get the results published by the petitioner was his legal right in view of (a) section 9(3) of the Calcutta University Act, 1979 and (b) section 9 of the Calcutta University First Statutes, 1979. Award of damages, according to the learned Counsel, is merely a consequential relief which can be granted by the court when an actual prejudice is shown. Strong reliance in this connection has been placed on University of Kerala vs. Sandhya P. Pai & Ors., reported in AIR 1991 Ker 396 . 9. It is a cardinal principle of law that damages can be granted in favour of a party either in terms of contract or in tortuous action. Negligence on the part of one party as a result whereof the other party suffered loss or damages gives rise to a tortuous action. In an appropriate action filed in this regard the plaintiff must plead and establish not only the negligence of the defendant but also the extent of losses and damages suffered by him by reason thereof. How and in what manner and to what extent prejudice has been caused to the plaintiff by such actions or inactions in discharge of the defendant's statutory duty or otherwise are the requisite ingredients for decreeing a Suit based on a tortuous claim. 10. How and in what manner and to what extent prejudice has been caused to the plaintiff by such actions or inactions in discharge of the defendant's statutory duty or otherwise are the requisite ingredients for decreeing a Suit based on a tortuous claim. 10. The Writ Court, however, although in exercise of its jurisdiction under Article 32 or 226 of the Constitution of India cannot grant compensation on a general tortuous action but it can grant such compensation without going into the question of actual damages which have been suffered by the writ petitioner when a claim in public law for compensation is made out in contravention of human rights and fundamental freedoms. 11. In Nilabati Behera vs. State of Orissa, reported in 1993(2) SCC 746 , it has been held:- "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 Rudul Sah [1983(4) SCC 441] 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." 12. Reference in this connection may also be made to Rudul Sah vs. State of Bihar, reported in 1983(4) SCC 441 and People's Union for Civil Liberties vs. Union of India, reported in 1998(8) SCC 485 . 13. Reference in this connection may also be made to Rudul Sah vs. State of Bihar, reported in 1983(4) SCC 441 and People's Union for Civil Liberties vs. Union of India, reported in 1998(8) SCC 485 . 13. In the instant case the petitioner has not questioned violation of any fundamental rights or human rights. Admittedly his right flows from the provisions of Statute. Section 9(3) of the Calcutta University Act, mandates the Vice-Chancellor a duty to ensure that the provisions of the Act and the Statutes, the Ordinances and the Regulations, are faithfully observed and to take such action as may be necessary for the purpose. 14. Clause 9 of the Calcutta University First Statutes, 1979, however, imposes responsibility for the preparation, scheduling, marking and reporting of examinations, both Post-Graduate and Undergraduate and publication of the results of such examination and all other matters connected with such examination upon the Controller. In all such matters he shall act under the supervision of the Pro-Vice-Chancellor for Academic Affairs. 15. Thus, the power of this court to grant damages although is not and cannot be disputed but the same is limited one. 16. The learned trial Judge had appointed a committee which had gone into the matter in great details. The findings of the said committee are:"- “(1) The candidate knew that he was unsuccessful soon after the publication of the result. (2) In the absence of relevant papers it cannot be said that the Examiner put different marks on the 2 slips of the Tabulators. (3) (a) The Scrutineer failed in his duty in not detecting the discrepancy and yet putting his signature signifying that the marks on the tabulation sheets were correct. (b) His conduct is not appearing before the Enquiry Committee does not speak well. (4) The Tabulators did not notice the discrepancy and even if they had noticed, they did not point out the same to the authority. They were under obligation to do so. (5) The dealing assistant ought to have been more vigilant in pursuing this matter. (6) The Section-in-Charge of the Result Section ought to have made enquiry about incomplete result. The Section-in-charge of the Result Section or for the matter of that any Officer in the Controller's department must have to see that a result does not remain incomplete for long years. (6) The Section-in-Charge of the Result Section ought to have made enquiry about incomplete result. The Section-in-charge of the Result Section or for the matter of that any Officer in the Controller's department must have to see that a result does not remain incomplete for long years. (7) The Controller should find out ways and means and should take such steps so that in future result does not remain incomplete for years as in the present case. (8) I do not find any conspiracy between the candidate and any staff of the University.” 17. Negligence on the part of the officers of the University although stands established and although we agree that the result of the writ petitioner in the Examination of M.A. of Islamic History and Culture in the year 1983 had not been published owing to callous and recalcitrant acts on the part of the authorities of the University, but having regard to the fact that the petitioner in this case himself was sure that he had failed in the examination and he having not sought for issuance of the Mark-Sheet for a long time and on the other hand prosecuted his studies in the Law Course. We are of the opinion that it was not a fit case in which the decisions of the Apex Court in Sebastian M. Hongray vs. Union of India, reported in AIR 1984 SC 1026 and Bhim Singh vs. State of Jammu & Kashmir and Ors., reported in AIR 1986 SC 494 , ought to have been applied. 18. Even in the report it has been stated that the candidate knew that he was unsuccessful. The result was published on 6th June, 1985. What problems did the petitioner face and to what extent he suffered prejudice stands unestablished. It may be true that a lot has -been and could be said about the acts of omission and commission on the part of the officers of the University but in view of the fact that the writ petitioner himself made a representation only on 10.12.1990 and his results have been published soon thereafter. We are of the opinion that it was not a case where the petitioner was entitled to monetary compensation. 19. In University of Kerala vs. Sandhya P. Pai & Ors., reported in AIR 1991 Ker 396 upon which strong reliance has been placed by Mr. We are of the opinion that it was not a case where the petitioner was entitled to monetary compensation. 19. In University of Kerala vs. Sandhya P. Pai & Ors., reported in AIR 1991 Ker 396 upon which strong reliance has been placed by Mr. Das not only the aforementioned questions of law had not been considered but the said case is distinguishable on fact inasmuch as therein a prayer for reevaluation of the marks obtained by the candidate had been made but the same had not been done for a long period. Upon re-evaluation it was found that the candidate had passed the M.A. Examination, the prejudices suffered by the candidate in that case had specifically been pleaded and proved. The defence of the University to the effect that it cannot consider the representation of each student within the period prescribed by Statute keeping in view that it had to deal with a large number of them was stoutly negatived. The learned Judge in this case has not arrived at any such finding. We, therefore, although are in agreement with the learned Judge that the University had faced to act in terms of the provisions of the Statute, we differ with his judgment awarding compensation of Rs. 60,000/-. Such a case has not been pleaded or proved. We must place on record our appreciation of the fact that the writ petitioner has at least brought out a malady prevailing in the campass of the University. It was not a case where doctrine of 'public trust' could be invoked. 20. The Supreme Court of India in exercise of its jurisdiction under Article 32 of the Constitution of India has awarded damages: (a) to the petitioners who suffered personal injuries at the hands of the Government and the causing of injuries which amounted to tortuous act; (b) cases relating to custodial deaths; and (c) cases where medical negligence has been proved. 21. However in Manju Bhatia & Anr. vs. New Delhi Municipal Council & Anr., reported in 1997(6) SCC 370 , the Apex Court in a case where a building which was constructed in violation of law was demolished after the flats were sold. Only in exceptional cases damages had been granted for tortuous liability. 22. 21. However in Manju Bhatia & Anr. vs. New Delhi Municipal Council & Anr., reported in 1997(6) SCC 370 , the Apex Court in a case where a building which was constructed in violation of law was demolished after the flats were sold. Only in exceptional cases damages had been granted for tortuous liability. 22. In Common Cause, a Registered Society vs. Union of India, reported in AIR 1999 SC 2979 , a bench of Three Judges observed:- "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." 23. As regard grant of monetary relief by way of compensation in exercise of its writ jurisdiction it was observed:- "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 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 right 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." 24. In the aforementioned decision while holding that a tort of misfeasant in public offices has been committed giving rise to a criminal liability was held liable to strictly construed. 25. It followed the decision of Rookes vs. Barnard, reported in 1964 (1) All ER 367, stating:- "We have already pointed out that in the instant case, there was no plaintiff. The petitioner, Common Cause, cannot be said to be a plaintiff nor can it claim to have suffered any damage or loss on account of the conduct of the petitioner. Lord Devlin further pointed out that award of exemplary damages should be moderate. Some of the awards that the jury had made in the past, seemed to him, to amount to a greater punishment than the punishment which was likely to be incurred if the conduct were criminal. It would be a punishment imposed without the safeguard which the criminal law gives to an offender. Lord Devlin had a third consideration also in mind which related to the means of the party. Obviously, a small exemplary award would go unnoticed by a rich defendant, while even a moderate award might cripple a poor defendant. The conduct of the parties throughout the proceedings would also be a relevant consideration in assessing exemplary damages. In our opinion, these elements or considerations are extremely relevant in determining the amount of exemplary damages but, unfortunately, none of these factors has been taken into consideration and after recording a finding that the conduct of the petitioner was oppressive and that he had made allotments in favour of various persons for extraneous considerations, the Court awarded an amount of Rs. 50 lakhs as punitive damages. How did the Court arrive at this figure is not clear. Why it could not forty nine lacs fifty thousand?" 26. 50 lakhs as punitive damages. How did the Court arrive at this figure is not clear. Why it could not forty nine lacs fifty thousand?" 26. Having regard to the facts and circumstances of this case we are of the opinion that it was not a fit case where any compensation should have been awarded in favour of the writ petitioner but the proper course would have been to leave the parties to agitate their grievances before a competent Civil Court. However, having regard to the fact, we are of the opinion that the costs awarded against the appellant herein and in favour of the respondent does not warrant any interference. The appeal is, therefore, allowed to the aforementioned extent. The parties shall, however, pay and bear their own costs in this appeal. M.H.S Ansari, J.: I agree. Appeal allowed in part.