Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., allowed the petition and granted compensation for infringement of right to a speedy trial under Article 21 of the Constitution of India.

Background

The facts of the case are such that the petitioner herein has filed the instant writ petition stating inter alia that he remained in jail for commission of offence under Sections 420/34 and 120B of Penal Code, 1860 i.e. IPC from 14.5.2012 till the date of delivery of judgment i.e. 08.11.2016 i.e. 4 years, 6 months and 7 days, whereas he has been awarded sentence only for three years for offence under Section 420/34 of the IPC and three years for offence under Section 120B of the IPC and sentences have been directed to run concurrently, as such, it is a clear case where his constitutional right of speedy trial enshrined in Article 21 of the Constitution of India has admittedly been violated and for which he is entitled to appropriate compensation jointly and severally from the respondents.

Submissions

Counsel for the petitioner Ms Reena Singh submitted that that “right to speedy trial” is his fundamental right and on account of non-conclusion of trial within a reasonable time, the petitioner remained in jail for a period more than he has been sentenced now at the conclusion of trial, which is violative of his fundamental right as guaranteed under Article 21 of the Constitution of India and for which, he is entitled for compensation of ₹ 30 lacks for his said illegal detention for about 1 year, 6 months and 8 days jointly and severally from the respondents.

Counsel for the respondents Mr Jitendra Pali submitted that detention of the petitioner was judicial custody in accordance with law and the procedure established by law, as such, the same cannot be termed as illegal detention and the petitioner. It was further submitted that the petitioner is not entitled for any compensation as his fundamental right of speedy trial has not been violated and he remained in judicial custody till the date of judgment for commission of offence which have been found proved by the trial Court.

Mr Prasoon Agrawal (Amicus Curiae) relied on judgment P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC 578 submitted that “right to speedy trial” is a fundamental right of an accused under Article 21 of the Constitution of India.

Observations

  1. The court relied on “Common Cause” v. Union of India, (1996) 4 SCC 33 and observed that it has clearly been established that the right to speedy trial in criminal case is valuable and important right of the accused therein and its violation would result in denial of justice and that would result in grave miscarriage of justice.
  2. The Court relied on judgment Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and wherein it was held ” Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. 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 Court thus observed that this Court in the exercise of jurisdiction under Article 226 of the Constitution of India under public law, can consider and grant compensation to the victim(s) who has suffered an infringement of fundamental right i.e. right to life and personal liberty guaranteed under Article 21 of the Constitution of India.

  1. Right to life is a fundamental right guaranteed under Article 21 of the Constitution of India and for its breach or violation, the petitioner is entitled to monetary compensation from the respondents who are responsible for its breach.
  2. The Court relied on judgment Vijay Kumar Gupta v. State, 2008 SCC OnLine Pat 568 has held that detention of a prisoner in custody in excess of the period that he has been sentenced infringes upon his fundamental right to life and liberty and as such, he is entitled for monetary compensation and further held that both the prosecuting authority and Court remained oblivious of his continuous detention for more than a period, the sentence for any of the offence would have carried.

The Court observed that following the principles of law and reverting to the facts of the present case, it is quite vivid that the petitioner remained in jail as undertrial for a period of 4 years, 6 months and 7 days, whereas he has been awarded punishment of 3 years for offences under Section 420/34 and Section 120B of the IPC (separately) and both sentences to run concurrently, as such, he remained in jail in excess (one year and six months) for more than the sentence awarded by concerned trial Magistrate, on account of delay in conducting the trial, despite twice this Court while hearing bail applications on 22.4.2013 and 24.6.2014 directed the trial Magistrate to conclude the trial expeditiously, which was not taken cognizance of by the learned trial Magistrate by which the petitioner continued in jail for a period more than the actual sentence awarded violating the petitioner’s right to speedy trial guaranteed under Article 21 of the Constitution of India and for which he is entitled for monetary compensation.

Decision

The Court held the petitioner will be entitled for ₹10,400×18=1,87,200/along with 6% interest from today till the date of payment jointly and severally which respondents No.2 and 4 will deposit within a period of 30 days from today.”

 [Nitin Aryan v. State of Chhattisgarh, 2021 SCC OnLine Chh 1636, decided on 07-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.S. Karnik and Nitin Jamdar, JJ., addressed the petition filed by ex-MD of ICICI Bank Limited — Chanda Kochhar regarding the challenge towards her termination order.

The present petition was by the Ex- Managing Director of ICICI Bank who was terminated from her service. The same was approved by the Reserve Bank of India (RBI), which has been challenged by the petitioner in the present petition.

Complaints against the petitioner were received,

ICICI, in its meeting held on 29 May 2018, constituted an enquiry by a retired Judge of the Supreme Court of India. In June 2018 the Petitioner informed ICICI that Petitioner would go on leave till the enquiry is completed. By letter dated 3 October 2018, the Petitioner sought early retirement. ICICI, by the communication dated 4 October 2018 accepted the request for early retirement subject to certain conditions. On 27 January 2019, the report of the enquiry was submitted. The report was adverse to the Petitioner. In the meeting held on 30 January 2019, the Board of the ICICI treated the separation of the Petitioner’s service as a Termination for Cause. A communication to that effect was issued to the Petitioner. By further communication dated 1 February 2019, ICICI revoked the retirement benefits of the Petitioner. Correspondence ensued between the parties. The Petitioner called upon the ICICI to restore to the Petitioner the existing and future entitlements, including unpaid amounts, stock options, medical benefits. ICICI refused the request.

Petitioner along with the challenged to her termination order also sought to refrain ICICI from recovering and/or cancelling the benefits granted to her for early retirement.

Preliminary objection of ICICI was that the said bank id not an authority under Article 12 of the Constitution of India and performs no public duty. It is only a private bank having a purely private character. Services of the Petitioner are not governed by any statute, but it is a purely contractual relationship with ICICI.

Thus, the dispute raised by the petitioner was purely private in nature and would not be subject to writ jurisdiction.

RBI did not enter into an employer-employee dispute while the approval of the termination of the petitioner.

Section 35(1)(b) of the Act is a regulatory provision only to oversee that the action of the bank does not have an adverse impact on the depositors or the banking system. Scrutinizing the rights of MD as against the employer is not a matter of focus

Analysis

Writs can be issued to the State; an authority; a statutory body; an instrumentality or agency of the State; acompany financed and owned by the State; a private body run substantially on State funding; a private body discharging public duty or positive obligation of public nature; and a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function. A private company would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution.

A Writ would not lie to enforce purely private law rights.

Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. Before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such authority, is in the domain of public law as distinguished from private law.

Further, it was observed that, if the private body is discharging a public function and the denial of any right is in connection with public duty imposed on such body, the public law remedy can be enforced.

ICICI Bank is a private bank administered by the Board of Directors and it is not established under any statutory instrument. It also doesn’t receive funds from the government.

Section 35(B)(1) shows that appointment, reappointment and termination of Chairman, Managing Director, will not have effect unless it is with the previous approval of the Reserve Bank

Also noted that, Courts exercise writ jurisdiction when a public law element involved if the services are governed by a statute

Banking companies such as ICICI have the freedom to conduct their affairs; however, Reserve bank ensures that their activities will not affect the economy in general. The supervision by the Reserve Bank is in the realm of larger policy.

Bench stated that

Reserve Bank does not uphold or, adjudicate or decide the rights of the parties inter se, but only focuses on the consequences of the proposed action. The grant of approval by Reserve Bank does not mean that the action of termination is valid in terms of the service dispute. The approval is based on the opinion that no impact on the banking system is discernible.

Thus, in the present case, the service conditions of the petitioner are not governed by any statute. Termination of the petitioner is in the realm of contractual relationships. Since Section 35(1)(B) does not regulated service conditions, approval for termination under it does not adjudicate the rights of the petitioner as an employee.

Hence,

Legal implications of the grant of approval, non-grant of approval or post-facto approval, as the case may be, would be grounds and arguments in the contractual dispute.

Thus merely because the approval under Section 35B(1)(b) is questioned, that cannot infuse a public law element in this dispute, which remains a contractual dispute. For the contractual remedies, the Petitioner will have to approach the appropriate forum and not writ jurisdiction. Preliminary objection upheld on the above perusal. [Chanda Deepak Kochhar v. ICICI Bank Ltd., 2020 SCC OnLine Bom 374, decided on 05-03-2020]