RABINDRA NATH GHOSALversusUNIVERSITY OF CALCUTTA AND ORS.

A                         RABJNDRA NATH GHOSAL
                                          v.
                  UNIVERSITY OF CALCUTTA AND ORS.

                             SEPTEMBER 30, 2002

B [G.B. PATTANAIK, Y.K. SABHARWAL AND S.N. VARIAVA, JJ.]

         Education/Educational Institutions:

          MA. Examination-Non-declaration of result-Writ Petition filed for.
C publication of result-High Court appointed a Committee to go into the delay
    in publication of result-Single Judge considered the report, awarded
    compensation-Division Bench set aside the award of damage by holding that
    it is not a fit case to apply doctrine of public law-On appeal, Held, it is not
    appropriate to grant compensa1ion under Article 226132 for minor infraction
D   of duty by public officer-Before granting exemplary damage the Court must
    ensure that fimdamemal rights under Article 2 I have been infringed and
    sufferer was a helpless victim-Constitution of India: Articles 2 I, 32 and
    226-Writ Jurisdiction-Award of compensation.

          Appellant appeared for M.A. Examination in certain subject and the
E   result was not declared for quite a long period. In the meanwhile, he took
    admission in an other course of study. After a gap of 5/6 years he wrote
    to the University authorities for declaration of result. As the result was
    not declared he filed a Writ Petition. Soon after, result was declared by
    the University and appellant was found to have failed. Single Judge of the
    High Court appointed a Committee, headed by a retired Judge, to
F   investigate into the matter as to why result was not declared for years.
    Upon consideration of the report, the Single Judge directed the University
    to pay certain amount as compensation and damages and to take
    appropriate action against erring officers and also directed payment of a
    fixed amount as costs.

G         Respondent-University filed an appeal. Division Bench of the High
    Court found the Respondent negligent and held that appellant had failed
    to establish the problems faced and the extent to which he had suffered
    prejudice due to non-declaration of the result by the University. The Bench
    held that it was not a fit case to award compensation for damages by
H   invoking the doctrine of public law. However, the award of cost was
                                       698
            RABINDRA NA TH GHOSAL r. UNIVERSITY OF CALCUTTA           699
confirmed. Hence this appeal.                                                 A
      Appellant contended that the Division Bench erred in setting aside
the order of the Single Judge by concluding that this was not a fit case to
award compensation.

        Dismissing the appeal, the Court                                      B
      HELD: 1.1 A claim in publ!c law for compensation for
contravention of human rights and fundamental freedoms, the protection
of which is guaranteed in the Constitution is undoubtedly an acknowledged
remedy for protection and enforcement of such right and such a claim
based on strict liability made by resorting to a Constitutional remedy,       C
provided for the enforcement of fundamental right is distinct from, and
in addition to the remedy in private law for damages for the toi't; as was
held by this Court in Nilabati Behera. It is in fact an innovation of a new
tool with the Court which are the protectors of the Civil Liberty of the
citizens and the Court, in exercise of the same, would be in a position to    D
grant compensation when it comes to the conclusion that there has been
a violation of fundamental rights under Article 21. (703-G, H; 704-A, BJ

     Lucknow Development Authority v. M.K. Gupta, 11994] 1 SCC 243;
Common Cause v. Union of India and Ors., [1999] 6 SCC 667 and Neelabati
Behara v. State of Orissa, 11993] 2 SCR 581, referred to.                     E
      1.2. It would not be correct to assume that every minor infraction
of public duty by every public officer would commend the Court to grant
compensation in a petition under Article 226/32 by applying the principle
of public law proceeding. The Court in exercise of extraordinary power
under Article 226/32 of the Constitution, therefore, would not award          F
damages against public authorities merely because they have made some
order which turns out to be ultra vires, or there has been some inaction
in the performance of the duties unless there is malice or conscious abuse.
Before exemplary damages can be awarded it must be shown that some
fundamental right under Article 21 has been infringed by arbitrary or         G
capricious action on the part of the public functionaries and that the
sufferer was a helpless victiin of that act. [704-D, E, F]

     2. In the instant case, the report of the Committee clearly shows that
the Appellant was aware, from the beginning, that he had failed. He did
nothing for number of years to have his result !leclared. Division Bench      H
    700                      SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A of the High Court is right when it holds that it has not been shown what
    problem the Appellant faced and to what extent he has suffered prejudice.
    It is not shown how the Appellant's future was affected by the non-
  declaration of result. This Is not a case where because of non-disclosure
  of the results, the Appellant was prevented from undertaking future
B studies. In fact the Appellant took up another course. Division Bench was
  right in concluding that even though the Respondents were negligent in
  not declaring the result, this was not a fit case where compensation could
  or should have been awarded; and that a case for compensation had not
  even been pleaded or proved. 1704-G, H; 705-AI

C           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 655 of
    2002.

         From the Judgment and Order dated 7.2.2000 of the Kolkata High
    Court in 0.0. No. 212 of 1994 in C.O. No. 6706(W) of 1991.

D         Jaideep Gupta, Siddharth Bhatnagar,Nirmal Dube and lr.dra Sawhney,
    for the Appellant.

         L. Nageswara Rao, Pijush K. Roy, Ratan Chaudhary, K.C. Sudarshan
    and Jananth Muth Raj, for the Respondent.

            The Judgment of the Court was delivered by
E
            VARIAVA, J. This appeal is against the judgment dated 7th February,
    2000.

            Briefly stated the facts are as follows:

F       The Appellant appeared for M.A. Examination in Islamic History and
  Culture held by the Calcutta University in November, 1984. The result of the
  examination was announced on 6th June, 1985. However the result of the
  Appellant was not declared. The Appellant then took admission in the Law
  Course. On 9th December, 1990, the Appellant wrote to the Controller of
G Examinations and requested that his result, of the examination held in 1984,
  be declared .. He also wrote to the Vice Chancellor on 14th February, 1991
  and made the same request. He then filed a Writ Petition in the High Court
  of Calcutta for issuance of Writ in the nature of Mandamus commanding
  publication of his result. On 12th July, 1991, the result of the Appellant was
  declared and he was found to have failed. The Appellant has not challenged
H the result of the examination and has accepted the fact that he has failed.
             RABINDRA NATHGHOSAL v. UNIVERSITY OF CALCUTT A [S.N. VARIAVA, J.] 701

               With the declaration of the result nothing really survived in the Writ      A
        Petition. However the learned Single Judge of the High Court appointed a
        Committee presided over by a retired High Court Judge to investigate why
        the result had not been declared for so many years. The Committee gave the
        following findings:

               "(I) The candidate knew that he was unsuccessful soon after the             B
                    publicatio'J;of the result.
               (2) Jn 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      C
                        marks on the Tabulation sheets were correct.
                    (b) His conduct in not appearing before the Enquiry Committee
                        does not speak well.
               (4) The Tabulators did not notice the discrepancy and even if they          D
                   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.
                                                                                           E
...
--,
               (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           F
                    such steps so that in future result does not remain incomplete for
                    years as in the present case .
               (8) .t do not find any conspiracy between the candidate and any staff

 -..,               of the University."
                                                                                           G
               The learned Single Judge thereafter held that the University of Calcutta
        and the Vice Chancellor should pay to the Appellant a sum of Rs. 60,000/
        - as monetary compensation and damages before 3 lst January, 1992. The
        learned Single Judge also directed the Vice Chancellor to take appropriate
        steps against the Scrutineer, tabulators, dealing assistant and Sequin-in-Charge
        and above all the Controller of Examination for defaulting in discharging          H
    702                    SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A their duties. The learned Single Judge also directed payment of cost fixed at
    Rs. 200 G.Ms.

           The Respondents filed an appeal. The Di!is1on Bench by the impugned
    judgment dated 7th February, 2000 agreed with the findings of the Single
    Judge that the Respondents had been negligent. It was also noted that the          ..
B   Appellant had known that he had failed in the Examination and had not
    sought for issuance of the mark sheet for the long tini:e. It was noted that the
    Appella~t had not waited for his result but had pursued studies iQ the Law
    Course. It was held that it was not established by the Appellant as to what
     problems he had faced and to what extent he had suffered prejudice. It was
C    held that this was not a fit case where the doctrine of public law should have
     been invoked. It was held that nonnally damages, under this doctrine, are
    awarded in the following cases:

            "(a) to the petitioners who suffered personal injuries at the hands of
            the Government and the causing of injuries which amounted to tortuous
D           act;
            (b) cases relating to custodial deaths; and

            (c) cases where medical negligence has been proved. However, in
            Manju Bhatia and Anr. v. New Delhi Municipal Council and Anr.
            reported in (1997] (6) SCC 370, the Apex Court in a case where a
E           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."
                                                                                            -
    It was held that on the facts of this case compensation should not have been
F   awarded to the Appellant but the proper course would have been to leave the
    parties to agitate their grievances before a competent Civil Court. By the
    impugned judgment the award of damages in the sum of Rs. 60,000/- was set
    aside but the award of cost in favour of the Appellant was maintained.

         Mr. Jaideep Gupta submitted that the' Division Bench erred in
G concluding that this was not a fit case where damages should have been
  awarded in public law domain. He relied upon the authority in the case of
  Lucknow Development Authority v. MK. Gupta reported in (1994] I SCC
  243. This was the case where the Lucknow Development Authority had
  floated a scheme of construction of houses or flats. The Respondent therein
  had been allotted a flat under that scheme. The Respondent had made the
H entire payment for the flat. It was found that there was use of sub-standard
         RABINDRA NA TH GHOSAL v. UNIVERSITY OF CALCUTT A [S.N. VARIA VA, J.] 703

      material and delay in delivery of the flat. The question before the Court was A
     whether a complaint under the Consumer Protection Act, 1986 was
     maintainable. This Court held that such a complaint was maintainable. It was
     also held that the society or the tax payer must have a remedy for oppressive
.,   and capricious acts of public officers. It was held that the administrative law
     of accountability of public authorities for their arbitrary and even ultra vires B
     actions has taken so many strides. It was held that it has now been accepted
     by this Court that the State was liable to compensate for loss or injury suffered
     by a citizen due to arbitrary action of its employees. It was held that
     jurisdictional power of Court to indemnify for the injury suffered due to
     abuse of power by a public authority was founded on the principle that an
     award of exemplary damage can serve a useful purpose in vindicating the C
     strength of law. It was held that such a power acts as a check on arbitrary
     and capricious exercise of power. It was held that the award of compensation
     for harassment by the public authority not only compensates the individual,
     satisfies him personally but helps in curing a social evil. It was held that it
     may result in improving the work culture and help in changing the outlook.
      It was held that this development of law apart, from other factors, succeeds D
      in keeping a salutary check on the functioning in the Government and semi-
     govemment offices by holding the officers personally responsible for their
     capricious or even ultra vires action resulting in injury or loss to a citizen by
     awarding damages against them.
                                                                                      E
            Reliance was also placed on the case of Common Cause v. Union of
     India and Ors., reported in (1999) 6 SCC 667, wherein after considering a
     catena of decisions it has been held that this Court and the High Courts being
     the protectors of the civil liberties of the citizen have the power and jurisdiction
     and also an obligation to grant relief in exercise of jurisdiction under Articles
     32 and 226 of the Constitution to victims or the heir of the victim whose F
     fundamental rights under Article 21 of the Constitution have been infringed.
     It was held that this can be done by calling 11pon the State to repair the
     damage done by its officers to the fundamental rights of the citizen
     notwithstanding the right of the citizen to a remedy by way of a civil suit or
     criminal proceedings. It was held that such relief can be granted only when G
     it is established that there has been infringement of the fundamental right of
     the citizen.

           There can be no dispute with the proposition of law. 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 H
    704                     SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A undoubtedly an acknowledged remedy for protection and enforcement of
    such right and such a claim based on strict liability made by resorting to a
    constitutional remedy, provided for the enforcement of fundamental right is
    distinct from, and in addition to the remedy in private law for damages for
    the tort, as was held by this Court in Nilabati Behera. It is in fact an innovation
    of a new tool with the Court which are the protectors of the civil liberty of         "
B   the citizens and the Court, in exercise of the same, would be in a position to
    grant compensation when it comes to the conclusion that there has been a
    violation of fundamental rights under Article 2 I. It is in this context, this
    Court has observed:

C           "That the citizen complaining of the infringement of an indefeasible
            right under Article 2 I 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."

D        The Courts having the obligation to satisfy the social aspiration of the
  citizens have to apply the tool and grant compensation as damages in a public
  law proceedings. Consequently when the Court moulds the relief in
  proceedings under Articles 32 and 226 of the Constitution seeking enforcement
  or protection of fundamental rights and grants compensation, it does so under
E 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 citizens. But it would not be correct to assume
  that every minor infraction of public duty by every public officer would
  commend the Court to grant compensation in a petitio1,1 under Articles 226
  and 32 by applying the principle of public law proceeding. The Court in
F exercise of extraordinary power under Articles 226 and 32 of the Constitution,
  therefore, would not award damages against public authorities merely because
  they have made some order which turns out to be u//ra vires, or there has
  been some inaction in the performance of the duties unless there is malice or
  conscious abuse. Before exemplary damages can be awarded it must be shown
G that some fundamental right under Article 2 I has been infringed by arbitrary
  or capricious action on the part of the public functionaries and that the sufferer
  was a helpless victim of that act.

        As set out above the report of the Committee clearly shows that the
  Appellant was aware, from the beginning, that he had failed. He did nothing
H for a number of years to have his result declared. The High Court is right
-       RABINDRA NATH GHOSAL ,, UNIVERSITY OF CALCUTTA [S.N. VARIAVA, J.] 705

    when it holds that in this case it has not be~n shown what problem ~he A
    Appellant faced and to what extent he has suffered prejudice. It is not shown
    how the Appellants future was affected by the results .not being declared.
    This is not a cas.e where because of non-disclosure of the results, the Appellant
    was prevented from undertaking future studies. In fact the Appellant took up
    law course. In our view the Division Bench was right in concluding that even
    though the Respondents were negligent in not declaring the result, this was B
    not a fit case where compensation could or should have been awarded. We
    are also in agreement with the Division Bench that a case for compensation
    had not even been pleaded or proved.

          We, therefore, see no infinnity in the impugned judgment. We see no     C
    reason to interfere with the judgment of the High Court. The appeal stands
    dismissed. There shall be no order as to costs.

    S.K.S.                                                    Appeal dismissed.