Bhaskar Bhattacharya, J.:— This mandamus appeal is at the instance of an unsuccessful writ petitioner and is directed against an order dated 21st November, 2002, passed by a learned Single Judge of this Court by which His Lordship dismissed the writ application filed by the appellant. By the said writ application, the appellant prayed for a direction upon the State Government to pay compensation of Rs. 35 lakh to the appellant for the death of her son in the police custody due to torture inflicted upon him by the police officials.

2. The case made out by the appellant in the writ application may be summed up thus:

a) On 26th February, 1980, the son of the appellant was arrested by the police and was taken to the Golabari police station where he was mercilessly beaten and due to such brutal atrocity, he died. The police refused to accept even the written complaint of the husband of the appellant, as a result, such grievance was lodged before the S.D.J.M, Howrah.

b) The learned S.D.J.M took cognizance of the complaint and committed the case to the learned Sessions Court for trial where charges were framed under section 302/34 of the Indian Penal Code against the accused persons who were all police personnel. The learned Sessions Judge although found that the torture upon the son of the appellant was the cause of his death and that he did not die due to fall from the roof in order to escape arrest as suggested on behalf of the defence, all the accused persons were acquitted on the ground that the prosecution could not prove that the accused persons had really beaten the son of the appellant to death.

c) Being dissatisfied, the de facto complainant, the husband of the appellant, filed a revisional application before this Court and at the same time, the State also preferred an appeal against order of acquittal. A Division Bench of this Court allowed the appeal and the revisional application by setting aside the order of acquittal passed by the Sessions Court and convicted three of the accused persons for committing offence under section 304 Part II read with section 34 of the Indian Penal Code by imposing rigorous imprisonment of seven years each on the two of the accused persons in addition to a fine of Rs. 5,000/-. The third accused, another police personnel was directed to suffer imprisonment of five years in addition to imposition of a fine of Rs. 2,500/-. The Division Bench further ordered that the fine, if realised, should be paid to the heir of the victim by way of compensation. The fourth accused person was, however, acquitted.

d) On an appeal by the convicted persons to the Supreme Court by special leave, the said Court refused to interfere with the finding of guilt of the accused persons but was of the view that all the three convicted persons should be directed to undergo rigorous imprisonment of 5 years as they were equally guilty of the offence.

e) After the confirmation of the aforesaid verdict by the Supreme Court in the year 1990, the father of the victim had approached the employer of his son for the purpose of ascertaining the actual amount he would have received if he did not die so that appropriate application could be filed for compensation. Unfortunately, after the decision of the Supreme Court, the father of the victim was murdered at the instance of the convicted persons, as a result, the appellant was at her wits' end. However, after recovering from the shock, she got information from the Railway authorities, where her son was working, about the scale of pay the victim would have enjoyed by that time if he were alive. On the basis of the aforesaid scale of pay supplied by the Railway authority, the appellant calculated the gross amount her son would have received after adding the available dearness allowances and other benefits payable to a Railway-employee if he were alive till the date of his retirement.

f) According to the appellant, such amount would come to Rs. 31 lakh and odd as detailed in the calculation-sheet annexed to the writ application. The appellant, therefore, prayed for a direction upon the State Government to pay her an amount of Rs. 35 lakh as compensation for the wrongful act committed by the employees of the State Government upon her son while he was in police custody.

3. The writ application was opposed by the State Government by filing affidavits-in-opposition thereby controverting the allegations made in the writ application. According to the State Government, it had taken all reasonable steps against the guilty persons and even preferred appeal against their acquittal and ultimately, succeeded in obtaining the order of conviction of the accused persons and at the same time, dismissed those guilty employees from service. In such circumstances, the State Government could not be held responsible for the wrong committed upon the son of the appellant. It was further contended that the writ application should be dismissed on the ground of gross delay in filing the same and that the appropriate remedy of the appellant lay before other forum.

4. The learned Single Judge on consideration of the materials on record came to the conclusion that in the facts of the present case the State Government could not evade its liability of paying compensation for the mischief committed by its employees, but at the same time, held that the writ application having been filed long 12 years after the date of the incident and the writ petitioner having failed to explain the delay in filing the writ application, the same was liable to be dismissed on that ground alone. His Lordship further observed that from the materials on record, it was difficult for a Writ Court to arrive at a definite conclusion as regards the amount of compensation which should be payable to the writ petitioner for the injury caused to her son. His Lordship, thus, after expressing His Lordship's sympathy towards the writ petitioner, dismissed the said writ application.

5. Being dissatisfied, the writ petitioner has come up with the present mandamus appeal.

6. Mr. Bag, the learned Advocate appearing on behalf of the appellant has laboriously contended before us that the learned Single Judge refused to exercise jurisdiction vested in His Lordship by not entertaining the writ application on the ground of delay. According to Mr. Bag, in the case before us, so long the conviction of the accused persons was not affirmed by the Supreme Court, the guilt of the accused persons was not established and as such, there was no occasion for the appellant to file a writ application claiming compensation even before the responsibility of the State Government for the wrongful acts of its employees was established. Mr. Bag contends that in the present case, after the dismissal of the special leave application, the husband of the writ petitioner was also murdered at the instance of the police personnel, as a result, it was difficult for the writ petitioner, a poor and illiterate lady, to gather all materials necessary for filing a writ application within a short period. In spite of all these adverse situations, she managed to obtain the essential materials from the employer of her son, and filed the writ application within two years from the date of disposal of the special leave application. According to Mr. Bag, once it is established that the fundamental right guaranteed by our Constitution in Article 21 thereof had been infringed by the employees of the State Government, it cannot escape its liability to pay compensation on the ground of delay in filing the writ application.

7. As regards the other reason assigned by the learned Single Judge, i.e want of sufficient material for the purpose of assessing the amount of compensation. Mr. Bag contends that the son of the writ petitioner was a railway employee receiving specific amount a month according to the pay-scale and such pay-scale applicable to the son of the writ petitioner having been brought before Court, there was no difficulty on the part of Writ Court to calculate the actual compensation by applying the method of “multiplier”. Mr. Bag, therefore, prays for setting aside the order passed by the learned Single Judge and for passing a direction for compensation on the basis of the income of the victim by applying the rule of “multiplier” which according to him in the present case should be 16 as the victim was within his twenties at the time of his death.

8. In support of such contentions, Mr. Bag relies upon the following decisions:

a) State of Rajasthan v. Mst. Vidyawati, reported in AIR 1962 SC 933;

b) Radul Sah v. State of Bihar, reported in 1983 (4) SCC 140;

c) M.C Mehta v. Union of India, reported in AIR 1987 SC 1086;

d) Neelbati Behra v. State of Orissa, reported in AIR 1993 SC 1960;

e) Saheli v. Commissioner of Police, reported in AIR 1990 SC 513;

f) Sebastian M. Hongary v. Union of India, reported in AIR 1984 SC 1086;

g) People Union for Democratic Right v. Commissioner of Police, reported in 1989 (4) SCC 730;

h) People Union for Democratic Right v. State of Bihar, reported in AIR 1987 SC 355;

i) State of Maharashtra v. Ravikant S. Patil, reported in 1991 (2) SCC 373;

j) Kewal Pati v. State of U.P reported in 1995 (3) SCC 600;

k) S.P.S Rathore v. State of Haryana, reported in 2005 (10) SCC 1;

l) People Union of Civil Liberties v. Union of India, reported in AIR 1997 SC 568;

m) D.K Basu v. State of West Bengal, reported in AIR 1997 SC 610;

n) Municipal Corporation Of Delhi v. Subhagwanti & Others, AIR 1966 SC 1750.

9. Mr. Sen, the learned senior Standing Counsel appearing on behalf of the State Government has opposed the aforesaid contentions advanced by Mr. Bag and has contended that the State Government in the fact of the present case led the role of an ideal Government and fought out the matter up to Supreme Court for the conviction of its own employees. According to Mr. Sen, the learned Single Judge was quite justified in dismissing the writ application on the ground of delay in filing the same. Mr. Sen contends that the actual amount of compensation, if payable at all, cannot be calculated without taking oral evidence and as such, there was no mistake on the part of the learned Single Judge in dismissing the writ application. Mr. Sen points out that in this type of a writ application, a Writ Court cannot pass a direction for payment of compensation for the “actual loss” suffered by the writ petitioner but the approach of the Writ Court should be to apply “the balm on the wound” of the writ petitioner. In support of such contentions, Mr. Sen relies upon the following decisions of the Supreme Court:

a) People's Union for Civil Liberties v. Union of India, 1997 (3) SCC 433;

b) Inder Singh v. State of Punjab, 1995 (3) SCC 902;

c) Re: Death of Swinder Singh Grover, reported in 1995 Supp. (4) SCC 450.

10. Therefore, the first question that falls for determination in this mandamus appeal is whether the State Government is liable to pay compensation for the tortious act committed by its employees in course of their employment.

11. It appears from the order impugned that the learned Single Judge has accepted the proposition of law that in a situation like the present one, the State Government is legally responsible to pay compensation. His Lordship, however, refused to grant relief to the appellant on the ground of delay in filing the writ application and also for insufficiency of the materials as regards the income of the victim, which according to His Lordship, was not enough for arriving at the just figure of compensation. As it appears from the various decisions cited by Mr. Bag, it is now settled by the Supreme Court that the State can be even made vicariously liable for the tortious act committed by its employee in course of employment but not in connection with the sovereign power of the State. [See State of Rajasthan v. Vidyawati (supra)]. Subsequently, in various other decisions, referred to by Mr. Bag, the Supreme Court has maintained its view that the State Government cannot evade its liability to pay compensation for the custodial death of a citizen due to torture inflicted upon him by the police authority. Therefore, we feel no difficulty in concluding that in a condition like the present one, the State Government is duty-bound to compensate the heirs and legal representatives of the victim who died in the police custody.

12. The next question is whether there was really any delay in presenting the writ application out of which the present mandamus appeal arises.

13. We find from the materials on record that the accused persons were initially acquitted of the charges framed against them in the year 1990, a Division Bench of this Court for the first time found them guilty and convicted them. The said order of conviction was slightly modified by the Hon'ble Supreme Court on a special leave application. Therefore, up to the year 1990, there was no scope of demanding any compensation from the State Government for the alleged illegal act committed by its employees, as by that time, the guilt of the accused persons was not established. We have already pointed out that immediately after the order of the Supreme Court, the husband of the appellant was murdered. The appellant before us, after recovering from the shock, procured the materials from the employer of her son for the purpose of placing those before the Court evidencing the income of his son at the time of his death as well as the amount which he would have earned were he alive till his retirement. Therefore, we are not prepared to accept the contention of the learned Advocate for the State Government that there was any gross delay in presenting the writ application for which, the same should be dismissed.

14. As regards the question of delay, the rule, which says that the High Court may not enquire into belated and stale claim, is not a rule of law but a rule of practice based on sound and proper exercise of discretion. The principle on which the relief to party on the ground of laches or delay is denied is that the rights which had accrued to others by reason of delay in filing the petition should not be allowed to disturb unless there is reasonable explanation or delay. The real test to determine delay in such cases is that the petitioner should come to the Court before a parallel right is created in favour of a third party and the lapse of time is not attributable to any laches or negligence. (See 1992 SCW 3181 at 3185). In the case before us, even if we assume for the sake of argument that there was delay in presenting the writ application, for such delay, no parallel right has accrued in favour of any third party to the proceedings.

15. Moreover, when in a writ application, a citizen alleges infringement of his fundamental right guaranteed by our Constitution at the instance of a State and if such infringement is actually proved, a Writ Court should not dismiss such a writ application on the ground of delay. The principle behind such proposition of law is that there can be no loss of fundamental right on the ground of non-exercise of such right. (Re: Kerala Education Bill, reported in AIR 1958 SC 956 at 981). In the subsequent case of Amalgamated Coalfield v. Janapada Sabha, Chhindawara, reported in AIR. 1961 SC 964, the Supreme Court observed that if a tax imposed is held to be ultra vires, the petition filed under Article 32 of the Constitution cannot be refused on the ground that the petitioner had been paying the tax without objection for years because such ultra vires tax would encroach upon his fundamental right under Article 19(1)(f)(g). In other words, there cannot be waiver of fundamental right by applying the doctrine of acquiescence. In the subsequent case of Lohia Machines Ltd. v. Union of India reported in 1985 (2) SCC 197, the Supreme Court has reiterated the same view in paragraph 13 of its judgement. We are, therefore, unable to approve the order passed by the learned Single Judge dismissing the writ application on the ground of delay.

16. The other reason, assigned by the learned Single Judge for not entering into the merit of the writ application, is, in our opinion, equally devoid of any substance. In the case before us, the victim being an employee of the Central Government and the relevant material having been placed before the Court showing the scale of pay applicable to him at the time of death as well as at the time of filing of the writ application if he had not died, and such scales of pay not having been specifically disputed by the State Government, no disputed question of fact as regards his income was involved. From the affidavit-in-opposition used by the State Government it appears that a vague denial was given as regards the statement of the writ petitioner on the question of scale of pay of the victim. The State Government did not assert that the certificate issued by the railway authority was a forged document nor did it claim that the victim was not an employee of the railway having such scale of pay. Therefore, the annual earning of the victim through his service with the railway was an undisputed fact and there was no impediment before the learned Single Judge to arrive at the just figure while assessing the compensation payable by the State Government on basis of his earnings when the unquestionable age of the victim was also available on record.

17. At this stage, we propose to deal with the decisions cited by Mr. Sen.

18. In the case of Re: Death of Swinder Singh Grover, in a case of allegation of custodial death, the Supreme Court on the basis of the report given by the learned Additional Sessions Judge, directed the CBI to lodge FIR on the basis of that report and to initiate criminal proceedings against the persons mentioned in the report. The Apex Court further directed the State Government to pay to the widow of the deceased a sum of Rs. 2 lakh as ex gratia payment. We fail to appreciate how the said decision can be of any help to Mr. Sen's client. In the said decision, the Supreme Court has rather affirmed the liability of the State Government for payment of compensation in case of custodial death and directed the Government to pay Rs. 2 lakh even before finding of the Criminal Court against the accused, whereas in this case, the culpability of the police officials has been proved up to the Apex Court.

19. In the case of Inder Singh (supra), in a habeas corpus petition filed before the Supreme Court alleging abduction of seven persons at the instance of a police party led by a DSP, the Supreme Court was satisfied with the allegations and directed the Government to initiate disciplinary and criminal proceedings against the police officers and at the same time, asked the State Government to pay Rs. 1.5 lakh to the legal representatives of each of the victims with a direction to realise the amount from the guilty persons. The Apex Court further awarded costs of Rs. 25,000/- to the petitioner. By relying upon the aforesaid decision, Mr. Sen tried to impress upon us that in the event we propose to pass any direction for compensation, we should also pass direction upon the State to realise the amount from the estate of the convicted persons.

20. In the case of People's Union for Civil Liberties (supra), which is also relied upon by Mr. Bag, the Supreme Court reiterated the well-settled proposition that the award of compensation in a proceeding under Article 32 before the Supreme Court or under Article 226 of the Constitution of India before a High Court is the remedy available in public law based on strict liability for contravention of the fundamental right. Accordingly, the Supreme Court, in the said case, awarded compensation of Rupees one lakh to the families of each of the deceased. By relying upon the said decision, Mr. Sen tried to convince us that the amount of compensation should not be the actual amount of damages suffered by the writ petitioner but should be reasonable amount without prejudice to the right of the petitioner to file appropriate civil suit where the amount paid though the order of the Writ Court should be adjusted.

21. After going through the said decision, we find that the Supreme Court relied upon its previous decision in the case of D.K Basu v. State of West Bengal (supra), and observed that the quantum of compensation would depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in this connection. The Supreme Court further observed that the relief to redress the wrong, for the established invasion of the fundamental rights of the citizens under public law jurisdiction, is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to remedy the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.

22. Now the most crucial question to be decided in this appeal is what should be the amount of compensation payable by the State Government to the writ petitioner in the facts of the present case.

23. We find from the certificate issued by the Eastern Railway that the son of the appellant was born in the year 1958, that he joined the service in the year 1978 and was due to retire on attaining 58 years of age, which was then the age of superannuation, in the year 2016. At the time of his death, he was in the pay-scale of Rs. 196-3-232 and his gross salary was Rs. 387.19 p. The certificate further discloses that if he were alive on the date of issue of the certificate i.e April 22, 1992, he would have been in the pay-scale of Rs. 950-1500 and his gross monthly salary would have been Rs. 2,222/-. If we take into consideration the salary of the victim at the time of his death, by applying the rule of multiplier as provided in the Motor Vehicles Act, the amount should come around the figure of Rs. 75,000/- which was payable to the writ petitioner in the year 1980. Now that we propose to give the relief 26 years after the incident, the writ petitioner can reasonably pray for interest on the said amount according to the usual bank rate prevailing for the time being in force. The rate of interest on long terms deposit in a nationalised bank up to the year 2000 was more than 12% per annum and in those days money would become double in six years. After the year 2000, such rate has come down to 7% per annum and if we calculate the interest on Rs. 75,000/- at the aforesaid rates, the principal with interest would come to more than Rs, 12 lakh. We also cannot lose sight of the fact that although in the year 1980, the victim used to get monthly gross salary of Rs. 389/-, in the year 1992, his monthly salary would have become Rs. 2,222/- and by this time, he would have earned more than Rs. 10,000/- a month.

24. However, we are quite conscious that in this proceeding we cannot calculate minutely the actual amount of loss suffered by the writ petitioner and we should endeavour to “apply balm on the wound” of the mother of the victim. After taking into consideration the fact that the deceased was unmarried and the writ petitioner is the only heir of the victim who is now aged 76 years of age, we are of the view that ends of justice will be met if we direct the State Government to pay a lump sum of Rs. 5 lakh to the appellant in addition to the fines realised from the convicted persons as per order of the Division Bench of this Court dealing with the appeal against the acquittal which has since been affirmed by the Apex Court with slight modification and we, accordingly, pass such direction.

25. The aforesaid amount as well as the amount of fine paid by the accused will be taken into consideration if the writ petitioner files any regular civil suit claiming actual damages suffered by her. The said suit, if filed, will be considered strictly in accordance with law of the land and the learned Civil Court will not be influenced by our observations made herein. We make it clear that the amount of compensation paid in terms of this order should be realised from the estate of the convicted persons for whose unlawful acts we have directed the State Government to pay the amount from the public exchequer. The amount be paid within a month from today, in default, the amount will carry interest at the rate of 9% per annum.

26. This appeal is, thus, allowed with costs which we assess at Rs. 10,000/- to be paid along with the compensation assessed by us. The order passed by the learned Single Judge is set aside and the writ application is allowed to the extent indicated above.

Prabuddh Sankar Banerjee, J.: I agree.

Later:

27. Let xerox certified copy of this order be given to the parties within a week from the date of making of such application.

Bhaskar Bhattacharya & Prabuddha Sankar Banerjee, JJ.:

Appeal allowed with costs.

A.D