N.V. Pithai Mohammed vs The State of Tamilnadu and Others

In this habeas corpus petition, N.V. Pithai Mohammed, father of detenu Varisai Mohammed has prayed this Court to issue a Writ of habeas corpus or any other appropriate order or direction directing the Respondents to produce his son before this Court and hand over the custody to him on the following allegations.

Petitioner is a businessman who purchases small items and transports them to Andaman Islands. His eldest son, out of five children is one Varisai Mohammed who studied upto 12th Standard and could not continue his studies due to severe mental depression. He took him to various doctors in Ramanathapuram, Madurai and Andaman, all of whom advised him to admit him to the second Respondent i.e. Institute of Mental Health, Madras and accordingly, he admitted him as an in patient with the second Respondent on 17.2.1992 where he was informed by the third Respondent i.e., Resident Medical Officer, Institute of Mental Health, Madras that as soon as his son recovered from his mental illness, employees of the second Respondent will bring him to his house. At that time, they specifically informed the Petitioner that it was not necessary for him to come and take his son and as per the direction of the authorities and as per the Rule of Mental Hospital Code, he remitted the necessary travel expenses for the trip with the Institute. After admitting the son in the Institute, he had visited his son on two occasions and in March, 1992, he left for Andamans for work. After returning in the month of May, 1992, he visited the second Respondent wherein he was informed that his son was already sent to his village. Since his son was not in his house, again he contacted the second Respondent who in turn contacted the fourth Respondent, i.e. one J. Manoharan, Warden, Institute of Mental Health, who informed them that he took the son and left him at his residence. As per the direction of the second Respondent, the fourth Respondent accompanied the Petitioner to, his village and on the way at Madras but stop, the fourth Respondent asked him to purchase tickets to go to Trichy and at Trichy bus stand, he informed the Petitioner that he has not taken his son to his village, but just left him at Gandhi Market at Trichy after giving him Rs. 10/-.

On this, the Petitioner was shocked1 about the conduct of the fourth Respondent and searched his son in Trichy and asked the fourth Respondent to lodge complaint before the police for which the fourth Respondent refused. The Petitioner came back to Madras informed this fact to the second Respondent who assured him that they will take steps to secure the presence of his son. He also asked the second Respondent to file a police complaint. The Petitioner kept on visiting Madras frequently to find out the whereabouts of his son and he used to get evasive replies from the second Respondent. He went to lodge a complaint to the police station at Trichi and Madras about the missing of his son, but, he was informed that the person under whose custody the son was entrusted should lodge complaint. Even though, he requested the second Respondent to file- complaint before the police on number of occasions, the second Respondent did not do so for reasons best known to him.

The Petitioner has further sworn in his affidavit that on 3.8.1993, he received a letter from the third Respondent that his son had escaped while he was being taken to his house on 6.4.1992. Petitioner is very assertive that his son did not run away, but deliberately abandoned at Trichy by the fourth Respondent for reasons best known to him and the institution has not taken any action with regard to disappearance of his son and attitude of the officials of the second Respondent was utter callous. The Petitioner also finds fault with Respondents 2 to 4 for not filing complaints before police for the missing son and hence, requested this Court to give necessary direction to the fifth Respondent who is the Superintendent of Police, Tiruchirapalli in this regard. He also submitted that because of the attitude of the Respondents, he is nervous and weak and his wife and himself had to undergo untold misery and they are very much scared wether their son who is mentally ill is safe.

The further grievance of the Petitioner is that the action of Respondents 2 to 4 in neglecting his son amounts to violation under Article 21 of the Constitution of India and the Respondents have violated the principles and guidelines laid down by the Apex Court and other High Courts of the country. He has also pointed out that the Respondents have acted in contravention of the provisions of the Indian Lunacy Act.

After service of notices on this petition, the second Respondent filed counter affidavit on his behalf as well as on behalf of the first and third Respondents. In the counter, he has admitted that the patient by name Varisai Mohammed was admitted in the Institute of Mental Health of Madras on 17.2.1992 as he was suffering from chronic Schizophrenia. He also asserted that he is an old patient and he had received treatment from the institution earlier during 1989 and as the patient abruptly discontinued the treatment, he was again admitted in the hospital for the continuous treatment on 17.2.1992. He has also mentioned the practice and procedure of the institute and has also submitted that the patient after treatment improved and the institution has informed the Petitioner twice to his Ramnad address and since there was no response, it has been decided by the institution to send the patient with warden, the fourth Respondent, and accordingly, on 6.4.1992; the patient was discharged and sent with the fourth Respondent..

The second Respondent also, further sworn to the fact that the fourth Respondent returned on 8.4.1992 with an acknowledgment obtained from the relative of the Petitioner by name Sahul Hameed to the effect that he has handed over the patient to the custody of the relative. He has also admitted that the Petitioner approached him in the month of June, 1992 enquired about his son and informing him that his son has been discharged and again the Petitioner contacting the Institute and informing that his son was not handed over to his family members. Then, this Respondent secured the presence of the fourth Respondent who promised to identify the person to whom he has entrusted the patient. Accordingly, the fourth Respondent was sent with the Petitioner and both of them came back and informed him that the fourth Respondent actually did not hand over the patient to anyone of the relatives to the Petitioner, but, the patient escaped from his custody at Trichy Bus Stand.

It is the further case of the Respondent that he decided to institute departmental proceeding against the fourth Respondent and the Additional Professor of Psychiatry, Institute of Mental Health has been entrusted with the enquiry and he has recorded the statement of the fourth Respondent in which he has stated that the patient escaped from his custody on 7.4.1992 at about 8 or 8.30 A.M. at Trichy Bus Stand. He has also asked the Petitioner to give a written complaint against the fourth Respondent, but the Petitioner has not given the said complaint but asked for some time so that he can try to trace his son with the assistance of the fourth Respondent and ultimately in June. 1993, the Petitioner gave a written complaint. He finds fault with the Petitioner that even though he has been asked to appear before the Enquiry Officer, he has not appeared before him. This Respondent has denied the other allegations found in the affidavit of the Petitioner. He says that on the earlier occasions, it was the grandmother of the patient who accompanied the patient after he has been discharged. He says that since the Petitioner stated that he himself will approach the appropriate police authorities, they did not take action. Since the Petitioner has promised him that he will take independent action, this Respondent did not take steps to trace his son. On these contention, the Respondent has asked this Court to dismiss the habeas corpus petition.

The fourth Respondent, in this counter affidavit has sworn that on 6.4.1992, two patients were entrusted over to him to be handed over to their guardians and out of them, he handed over one patient at Musiri and from there he wanted to take the present detenu to Ramanathapuram, but at Trichy bus stand, the said person ran away when he had gone to toilet. He searched the entire place and could not trace him and so, he came back to Madras. His further explanation is that since he was in a state of fear and confusion and was not knowing what to do, out of fear of loosing job, he did not inform the truth regarding the boy running away. He admitted the Petitioner approaching the Institute and his showing the place from where the boy ran away and his confusion before him and also the enquiry conducted by the Institute.

He has further deposed that he had been trying to locate the boy by going to various places and he met a patient who he left at Musiri and from whom he came to know that the detenu Varisai Mohammed had told him that he had no intention of going home, since he feared that he may again be sent to the Institute of Medical Health, and therefore, wanted to run away. He pleaded that he has been working in the said Institute for the last 16 years and that there is not even a single black mark in his record and he had handed over many patients before to their guardian to various distant places such as Musiri, Kodaikanal, etc. and no such event of patient escaping has occurred before.

He has further stated that an enquiry was held where he was placed under suspension and presently he has been reinstated without prejudice to the Departmental proceedings. He has concluded his counter by saying that he is a poor man and his entire family depends on his income and he has been even faithful in discharging hi duties and not a moment he was negligent in his career and prayed for mercy on him.

The Inspector of Police working at Cantonment Circle (Law and Order) Tiruchirapalli District has filed a counter on behalf of the fifth Respondent, in which, he has stated that at the instance of the fifth Respondent i.e., Superintendent of Police, Tiruchirapalli, he registered a case in B.6 Cantonment Police Station in Crime No. 1099/94 as ''Man Missing'' on 3.8.1994 and took up investigation, The Photograph of missing man was published in the local dailies on 12th and 13th August, 1994 and telecasted over Doordharshan Network and broadcasted over All India Radio on 12.8.1994 and 13.8.1994 respectively. Hand bills containing the photograph and physical particulars of the missing man was printed and distributed in Trichy and bordering Districts. He had also stated that search was conducted at Trichy Town, Srirangam, Kulithalai, Pudukkottai, Thanjavur, Madurai. Nagapattinam, etc. All the dargahs, temples where destitutes, mentally retarded persons and beggars, visited were verified thoroughly in and around Tiruchirapalli, but in vain. He has further submitted that, sincere efforts were taken to trace him but could not be secured and the investigation he was still in progress and all possible efforts were being taken up. On these grounds he has asked this Court to dispose of the petition as devoid of merits.

Heard the learned Advocate Mrs. Geetha Ramaseshan, for the Petitioner and Mr. B. Sriramulu, learned Public Prosecutor for the State and Mr. C. Prasanna Venkatesh for the fourth Respondent.

Learned Advocate for the Petitioner submitted that even though the prayer in the habeas corpus petition is to issue a writ of habeas corpus for production of the body of the Petitioner''s son Varisai Mohammed, after going through the counter affidavits of the Respondents, this Court can mould the relief and can grant compensation to the Petitioner having regard to the negligence on the parts of the Respondents. On the other hand, learned public prosecutor opposed this prayer and asked this Court to dismiss this Court to dismiss this habeas corpus petition. Learned Advocated for the fourth Respondent reinstated what has been stated in his counter-affidavit.

In support of the proposition the learned Advocate for the Petitioner placed reliance on the decision of this Court in P. Rathinaswami Pillai, Proprietor, Swarnambigai Motor Service, Salem v. The Regional Transport Authority, Salem and Anr. (1965) 1 M.L.J. 526, wherein it has been held that the High Court, however, under Article 226, which is of wide amplitude and enables the Court to do justice in the most comprehensive sense, can ignore the form of relief sought by the applicant and grant him the necessary relief by issuing the appropriate writ. this Court has further observed as follows:

Article 226 of the Constitution does not comprise only of the prerogative writs of the Crown in England. It is of wide amplitude and overflows to bounds of such prerogative writs, and it is designed to be elastic, to enable the court to do justice in its essential and most comprehensive sense, justice of course in the concrete and not in the abstract. This jurisdiction of the Court ought not however, to be whittled down by too much adherence to forms and labels of the transmitted by technical consideration.

The other decision on which the reliance has been placed by the learned Advocate for the Petitioner is in Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, . In paragraphs 33 and 34 of the said decision this is what the Supreme Court has held:

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 indefeasible 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 or protection of fundamental rights, it does so under 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 citizen. The payment of compensation in such cases is not to be 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 due to breach for public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of "exemplary damages" awarded against the wrongdoer for the breach of its public 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 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 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 the cases start with Rudul Sah Vs. State of Bihar and Another, , 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 sound policy to punish the wrongdoer and it is in the spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so, the Court takes 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 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 procedures as also public law principles.

Yet another decision which has been pressed into service by the learned Advocate is in Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, . In paragraphs 11, 12 and 13 at page 516, this is what the Supreme Court has observed.

An action for damages lies for bodily harm which included battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity loss of liberty and death. As we have held herein before that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the S.H.O., Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortuous acts of its employees. The Respondent No. 2 Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the S.H.O. of Anand Parbat Police Station, Shri Lal Singh.

It is convenient to refer in this connection the decision in Joginder Kaur v. The Punjab State 1968 ACC CJ 28 : (1969) Lab IC 501 (Punjab), Wherein it has been observed that:

In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment.

In The State of Rajasthan Vs. Mst. Vidhyawati and Another, it has been held that:

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 a 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....

From the above decisions, we can safely hold that even though the Petitioner has not specifically prayed for compensation such a relief could be granted in this habeas corpus petition.

Now, let us consider whether the Petitioner is entitled for the compensation. Before considering whether the Petitioner is entitled for compensation, we have to consider whether there was negligence on the part of the Respondents. Narration of facts in the earlier part of this judgment clearly goes to show that there was negligence on the part of the fourth Respondent in discharge of his duties. There is no dispute that the son of the Petitioner who was mentally disabled has been entrusted to the custody of the second Respondent for treatment. It is the case of the Petitioner that he has also deposited the required amount with the Institute for the purpose of sending the patient back after treatment as per the provisions of Mental Hospital Code. The second Respondent has further admitted that the son of the Petitioner has been sent with the fourth Respondent who is the warden of the Institute, to hand over to the Petitioner and the fourth Respondent in fact admitted this fact and at the first instance informed the second Respondent that he has already handed over the patient to the relation of the Petitioner. However, at a later state, he has come up with the version that the patient escaped from his custody at Trichy Bus Stand which is hard to believe. His other version be fore the Petitioner, which is more probable according to us, is that he left the son of the Petitioner at Trichy paying him Rs. 10/- to go his native place. If that is so, there is no difficulty in holding that there was dereliction of duty on the part of the fourth Respondent in not handing over the custody of the patient who was a mental patient to the Petitioner. The explanation now offered by the fourth Respondent cannot be believed. Under these circumstances, we hold that the fourth Respondent was negligent and because of this negligence the Petitioner as well as his wife were put to mental pain and as held by the Supreme Court in Saheli, a Women''s Resources Centre v. Commissioner of Police, Delhi (Supra) which was referred to earlier, the Petitioner is entitled for compensation. In this connection, we can safely refer to a decision in Thressia Vs. K.S.E.B., In the said decision, the Kerala High Court has observed as follows at paragraphs 15 and 16 at pages 209 and 210.

I am conscious that normally Article 226 proceedings cannot be used as a substitute for the enforcement of rights and obligations, which can be enforced legitimately and efficiently by resorting to the normal ordinary processes before Civil Courts as provided by law. So, naturally, a fiscal compensation or claim has therefore to be claimed and litigated upon, in a suit or other proceedings instituted in a Court competent to try it. But, in this case, I have to say that really, the Board is guilty in not taking appropriate actions contemplated as per Rules, at least for mitigating the damages suffered by the Petitioner, by paying at least the ex gratia compensation in time. Further, the facts disclose that in fact the Petitioner was misled by the Board and as a result, no civil action was taken by the Petitioner against the Board. I need not repeat that though the accident took place in 1979 and that the Board was fully satisfied that the Petitioner is entitled to an ex gratia payment, that payment was also given only in 1986, after these proceedings were initiated. The conduct of the Board clearly justifies this proceeding under Article 226 of Constitution. Now filing a suit for compensation is apparently barred by limitation. I cannot say that the Board is not responsible for creating this irreversible and disadvantageous position for the Petitioner. Certainly, I must remember that I am dealing with a case against the State, since the Board is a State under Article 12 of the Constitution. In Rudul Sah Vs. State of Bihar and Another, he Supreme Court has said:

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.

In the above case, the Supreme Court ultimately directed the State government to pay Rs. 30,000/- as compensation. Certainly, this is an award of compensation in proceedings under Article 32 of the Constitution. The Court observed:

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 Court, 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.

19-A. The question whether what sort of relief that would be adequate, and should be granted under Article 226 of the Constitution depends upon the nature and facts of each case, I feel that the guiding principle in all cases is promotion of justice and prevention of injustice. In the present case, the Petitioner lost her husband and the children, their loving father. It is due to the negligence of the Respondent/Board. Now, as it is, the Petitioner has been deprived of her right to receive compensation by filing a suit, because it may be time barred. This happened because of the "bureaucratic dilly-dallying indifference in considering the Petitioner''s claim. In Hari Raj Singh Vs. Sanchalak Panchayat Raj, U.P. Govt., Lucknow and Others, , the Court said:

The powers of this Court under Article 226 are very wide and it can compensate an aggrieved person in any reasonable manner for any loss suffered by him due to non-payment of his dues.

I feel if this Court refused to grant the Petitioner an adequate relief a great injustice will be done to a widow and her children. I again quote what the Supreme Court said in Rudul Sah Vs. State of Bihar and Another, :

The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the Petitioner penniless until the end of his suit, the many appeals and the execution proceedings.

I cannot say that it is not a plausible argument that can be advanced by the Board that the Petitioner can file a suit to recover damages against the Board. Happily, the Board has not raised, such an objection in their counter-affidavit. I see no good reason for not (sic) relegating the Petitioner in this particular case, to the ordinary remedy of a suit at this distance of time since really her claim to compensation is factually non-controversial, and her cause of action has been imperiled, by the elusive and slip away manner in which the claim of compensation and dealt with by the pink ribbons and squirrel cage officialism of the Respondent-Board. In these peculiar circumstances, the refusal of this Court to pass an order of compensation in favour of the Petitioner and her children will amount to a show of volte-face to the realities and justice of the cause. I do not want to do that.

Learned Public Prosecutor appearing for the State however contended that when the relief claimed by the Petitioner is for the production of the custody of his son, he is now not entitled for compensation. He submitted that the State is taking all the necessary steps to secure the custody of the detenu and there was no negligence on the part of the second and third Respondents and if at all there was any negligence, it was only on the part of the Petitioner who has not cared to go to the Institute to take his son back after treatment. The Public Prosecutor in the alternative argued that if at all there is any negligence, it was only on the part of the fourth Respondent to whom the boy has been entrusted to hand over to the Petitioner and as against the fourth Respondent, departmental enquiry has already been initiated and the Court need not award any compensation to the Petitioner.

We have already held that it was the fourth Respondent who was negligent in his duty. Now the point for determination is who has to pay the compensation. There is no doubt that the fourth Respondent is an employee of the State, the first Respondent. Government Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to bizarre acts of lawlessness. The application for compensation are for enforcement of the fundamental right to life enshrined in Article 21 of the Constitution and while dealing with such application a hyper-technical approach which would defeat the ends of justice could not be adopted.

Since we are awarding this compensation only towards mental agony, we fix the amount at Rs. 5,000/- and we deem it just and proper to direct the first Respondent i.e., the State of Tamilnadu represented by Secretary, Government Health Department, Fort St. George, Madras-9 to pay the said amount to the Petitioner within a period of eight weeks from the date of receipt of this judgment. The first Respondent may take appropriate steps for recovery of the said amount from the fourth Respondent or any other erring official who will be responsible for the said amount. Awarding of this compensation which is a nominal sum will not come in the way of the Petitioner claiming for other compensation.

We also, however, impress upon the fifth Respondent to continue the investigation and in the event of finding the missing Varisai Mohammed to inform this fact to the Petitioner as well as to this Court, With the above direction and observation, this habeas corpus petition is disposed of.