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2003 DIGILAW 579 (GAU)

Union of India (UOI) v. Sunita Agarwal

2003-12-12

D.BISWAS, I.A.ANSARI

body2003
JUDGMENT I.A. Ansari, J. 1. By a common judgment and order, dated 20.6.2002, Writ Petition (Civil) Nos. 64(K)/ 2000 and 65(K)/2000, were disposed of by the learned single Judge as the facts and questions of law in both the writ petitions were the same. 2. Pursuant to an agreement entered into between the Commandant, 14th Assam Rifles, and M/s Agarwal Brothers, one Sri Maliram Agarwal had been running a Non- CSD canteen at the head Quarters of the 14th Assam Rifles at Phek in the State of Nagaland. On 7.11.1999 at about 6.15 p.m., on the eve of Dipawali, when Maliram's two sons, namely, Kamlesh Kumar Agarwal and Lalit Kumar Agarwal were performing Laxmi Puja in their said canteen, rifleman Dilip Chetia of 14th Assam Rifles appeared at the scene and indiscriminately opened fire from his fire-arm killing both the said sons of Maliram Agarwal and seriously injuring their cousin, Ashok Agarwal. At the time of his death, Kamlesh Kumar Agarwal was 31 years old and he left behind his widow, aged about 24 years, and two minor children, one aged about 2½ years and the other one 1½ years old. Deceased Lalit Kumar Agarwal was 33 years old and he left behind his widow, aged about 27 years, and three children aged about 7 years, 5 years and 3 years respectively. According to the post-mortem report, both the deaths had taken place on account of multiple gun-shot injuries. Maliram Agarwal made a representation, dated 8.12.1999, to the Union Defence Ministry praying for payment of Rs. 25 lacs as compensation to each of the families of his said deceased sons. As the representation yielded no result, writ petitions aforementioned were filed by the widows of the said two deceased sons of Maliram Agarwal on the ground, inter alia, that the husbands of the writ Petitioners were murdered in a barbaric, brutal and ghastly manner for no fault of their own and due to negligence on the part of the Assam Rifles authorities and other Respondents inasmuch as they were shot dead by a personnel from Assam Rifles within the Assam Rifles camp area and that too, while they were performing puja and, hence, the Assam Rifles authority and other Respondents were vicariously responsible for the act of their servant, namely, Rifleman Dilip Chetia, who had killed the said two innocent persons. 3. 3. The Respondents, (who are applicants/Appellants herein) resisted the writ petitions contending, inter alia, that the act of the said rifleman was an individual act and the same had not been done in the discharge of his official duty and, hence, the Respondents were not vicariously liable for the individual act of their servant. 4. We have Mr. GP Bhowmick, learned Additional Central Government Standing Counsel, appearing for the Respondents/Appellants, and Mr. P.K. Khataniar, learned Counsel, assisted by Mr. KR Surana, appearing on behalf of the writ Petitioners (Respondents herein). 5. The learned single Judge, who dealt with the writ petitions, mainly relied upon a decision of the Apex Court in Chairman, Railway Board and Ors. v. Chandrima Das (Mrs) and Ors. reported in (2000) 2 SCC 465 , awarded a sum of Rs. 5 lacs each as compensation to the writ Petitioners. 6. It may be pointed out that in the case of Chairman, Railway Board and Ors. v. Chandrima Das (Mrs) and Ors., (supra), a Bangladeshi lady was raped by the Railway employees at the building (Yatri Niwas) belonging to the Railway. The Calcutta High Court awarded a sum of Rs. 10 lacs as compensation to the said lady Smt. Hanuffa Khatun against the Respondents. Indian Railways. On appeal, the Supreme Court upheld the judgment and order of the Calcutta High Court and held: It was on the basis of the above facts that the High Court had awarded a sum of Rs. 10 Lakhs as compensation for Smt. Hanuffa Khatun as the High Court was of the opinion that the rape was committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrated by the railway employees. It is contended that since it was the individual act of those persons, they alone would be prosecuted and on being found guilty would be punished and may also be liable to pay fine or compensation, but having regard to the facts of this case, the Railways or, for that matter the Union of India would not even be vicariously liable. It is also contended that for claiming damages for the offence perpetrated on Smt. Hanuffa Khatun, the remedy lay on the domain of private law and not under public law, and, therefore, no compensation could have been legally a warded by the High Court in proceedings under Article 226 of the Constitution. . . . It is also contended that for claiming damages for the offence perpetrated on Smt. Hanuffa Khatun, the remedy lay on the domain of private law and not under public law, and, therefore, no compensation could have been legally a warded by the High Court in proceedings under Article 226 of the Constitution. . . . ....Where public functionaries are involve and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law. Article 21 guarantees right to life and personal liberty. . . . Learned Counsel for the Appellants then contended that the Central Government cannot be held vicariously liable for the offence of rape committed by the employees of the Railways. It was contended that the liability under the law of torts would arise only when the act complained of was performed in the course of official duty and since rape cannot be said to be an official act, the Central Government would not be liable even under the law of torts. The argument is wholly bad and is contrary to the law settled by this Court on the question of vicarious liability in its various decisions. 7. Aggrieved by the judgment and order passed by the learned single judge, the Respondents/Appellants have, now, approached this Court by preferring Writ Appeal No. 65 of 2003. Since the said appeal is, admittedly, time barred, the present application praying for condonation of delay under Section 5 of the Limitation Act has been made, their case being, briefly stated, thus: The impugned judgment and order was passed on 20.6.2002, an application for certified copy of the said judgment and order was made on 21.6.2002 and the certified copy was made ready on 5.7.2002. Excluding the period for obtaining the certified copy, the appeal ought to have been filed on 4.8.2002, but the appeal has been filed on 9.10.2002 after the delay of 51 days. The certified copy was collected by the concerned officer from the learned Central Government Standing Counsel on 8.7.2002 and the relevant papers along with the certified copy of the judgment were sent to the Director General of Assam Rifles, at Shillong, on 8.7.2002 itself. The certified copy was collected by the concerned officer from the learned Central Government Standing Counsel on 8.7.2002 and the relevant papers along with the certified copy of the judgment were sent to the Director General of Assam Rifles, at Shillong, on 8.7.2002 itself. The concerned authority, by its letter, dated 30.7.2002, communicated the Department's instruction to file an appeal to the learned Central Government Standing Counsel As the Central Government Standing Counsel required some additional instructions, the same were obtained on 27.8.2002, whereupon the Memorandum of Appeal was prepared with the application for condonation of delay and the same were sent for approval of the authority concerned and upon receiving the same with approval, the appeal has been filed. 8. From a careful scrutiny of the above application, it transpires that though the applicants/Appellants have sought for condonation of delay of 51 days, the delay is actually of 65 days. The applicant/Appellants have, thus, offered explanation for delay for 51 days and not for remaining 14 days. This apart, according to the case of the applicants/Appellants themselves, the decision to file appeal was communicated to the learned Central Government standing Counsel by letter, dated 30.7.2002, but the appeal was not filed and further instructions were sought and the instructions sought were also made available to the learned Central Government Standing Counsel on 27.8.2002. Excluding the period, which was taken in obtaining the certified copy, the writ appeal ought to have been filed on 4.8.2002. This shows that on 27.8.2002, when the learned Central Government Standing Counsel received all requisite instructions, which he had sought for, the appeal was already barred by about 23 days and, yet, the appeal was not filed in the month of August and/or even in the month of September and it was, eventually, filed as late as on 9.10.2002. For this delay, a vague statement has been made that the delay was on account of administrative reasons, but no cogent and convincing explanation has been offered as to why the appeal could not be filed before 9.10.2002. In fact, no credible explanation for such delay exists on record. 9. To a pointed query made by this Court, Mr. Bhowmick candidly conceded that the applicants/Appellants were wrong in calculating that the delay is of 51 days and prays that the delay be condoned. 10. Mr. In fact, no credible explanation for such delay exists on record. 9. To a pointed query made by this Court, Mr. Bhowmick candidly conceded that the applicants/Appellants were wrong in calculating that the delay is of 51 days and prays that the delay be condoned. 10. Mr. PK Khataniar, learned Counsel appealing for the writ Petitioners (Respondents herein) submits that since no cogent, bona fide and sufficient cause has been shown for the delay in preferring the appeal, no case has been made out for condoning the delay and, hence, the application for delay as well as the appeal deserve to be dismissed. 11. In view of what has been discussed above and upon considering the matter in its entirety and in the interest of justice, we are of the view that on the facts and in the circumstances of the case, the delay, sought for, should not be condoned. 12. In the result and for the foregoing reasons, the application for condonation of delay is hereby disallowed and the same is accordingly dismissed. Appeal dismissed