The Chairman, Railway Board & Ors vs Mrs. Chandrima Das &Ors
Bench: Justice R.P.Sethi and Justice S.Saghir Ahmad
Issue:
- The issue raised was whether the Railways would be liable to pay compensation to Smt. Hanuffa Khatoon or not, who was a foreigner and was not an Indian national.
Facts:
- Chandrima Daswas claiming compensation for Hanufa andfiled a petition under Article 226 of the Constitution against the appellant.
- The appellantstated in the High Courtthat the accused are employees of railway and if the petitioner is able to prove the charges against them, they shall be considered as committers gang rape on Hanufa Khatun.
- Hanufawas a Bangladeshi citizen.
- She had a wait listed ticket and so for confirmation of her ticket she approached a train ticket examiner who asked her to wait in the Ladies Waiting room. She then went to the ladies waiting room and waited there.
- After some time Ashoke Singh and Siya Ram Singh came;they took her ticket and returned it after confirming reservation.
- About a few hourslater Siya Ram Singh came with a boy named Kashi and told her to take that boy with her if she wishes to have dinner.
- Soon after that she left with Kashi to have dinner. After having the dinnershe vomitted and came back to the Ladies Waiting room.
- After that Ashoke Singh along with Rafi Ahmed came to the Ladies Niwas. She had some doubt initially about them,but the lady attendants certified their credentials and then she accompanied them to Yatri Niwas.
- Sitaram Singh, joined them on their wayand then they took her to room No.102 of Yatri Niwas. The room was already booked in the name of Ashoke Singh.
- Inroom one Lalan Singhand one Awdesh Singh were waiting for others to come. Hanufa Khatun suspected something and denied to enter the room but Ashok forced her in. After that Awdesh Singh closed the door and stood on guard outside the room.
- The remaining four persons i.e. Ashoke, Lalan, Rafi and Sitaram forced Hanufa to consume alcohol. All the persons in the roomgang raped, Hanufa Khatun.
- After some time when Hanufa gained conscious she managed to escape from the room and met Siya Ram Singh buthe was talking to Ashoke Singh. Siya Ram Singh pretended to save her and slapped Ashoke Singh. Since Jodhpur Express had already left, Siya Ram offeredHanufa Khatoon to his residence where she could rest with his wife and children and assured her safety. He made false assurance tohelp her get the Poorva Express next day.
- ThenSiyaramwith Ram Samiram Sharma, took her to the rented flat of Ram Samiram Sharma. There Siyaram raped Hanufa and when she protested Siyaram and Ram Samiran Sharma covered her mouth and nosewith the intention to kill her.
- On hearing cry of Hanufa, the landlord informed the police and Hanufa was saved by police.
- The High Court awarded a sum of Rs.10 lacs as compensation for Smt. Hanuffa Khatoon, the HCwas of the opinion that the rape was committed at the building belonging to the Railways and was perpetrated by the Railway employees.
Argument raised by Petitioner:
- It was contended that commission of the offence by the employee of railway would not make the Railway or the Union of India liable to pay compensation to the victim of the offence.
- It was contended that since it was an individual act of those persons, only they will be prosecuted and liable to pay fine or compensation, but according to the facts railways or Union of India can’t be held vicariously liable.
- It was also contended that for claiming damages the remedy available to Smt. Hanuffa Khatoon was in private law and not in public law as there was no violation of fundamental right (as she is a foreign national she does can’t enjoy the fundamental rights) and, therefore, no compensation could be legally awarded by the High Court under Article 226 and the respondent too being an independent lawyer has no right to ask for compensation on behalf of Hanuffa.
- It was contended that the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon, who was a Bangladeshi citizen.It was argued that the Fundamental Rights in Part III are available only to citizens of this country and Hanuffa Khatoon was a Bangladeshi national, she cannot file a suit for violation of Fundamental Rights and she cannot be granted any relief.
- It was also contended that the rape was not committed during the official course of duty. So, no liability arises under the law of torts.
Argument raised by Respondent:
- The contention of petitioner that Hunaffa should have approached private court and not public court is denied. Since, public functionaries are involved and the matter is of violation of Fundamental Rights the remedy is available under the Public Law. The court in Bodhisatwa vs. Ms. SubdhraChakroborty (1996) 1 SCC 490 has held “rape” as an offense which is violation of the Fundamental Right of a person guaranteed under Article 21 of the Constitution.
- The court has in many cases stated that some fundamental rights are even available to no citizens.
- India being a signatory to the International Covenants and Declarations of UN and it shall be interpreted as it will help in implementation of those Rights. Article 1, 2, 3, 5, 7, 9 states that The Fundamental Rights are available to all the “citizens” of the country but a few of them are also available to “persons”. While Article 14, guarantess protection of persons meaning citizens and non-citizens both can enjoy this right.
- So, those who are non-citizens and come to India as tourists or for any other purpose will be entitled to the protection of their lives in accordance with the Constitutional provisions.
- Hanuffa had the right to live with dignity under Article 21 of the Constitution. Since, she was national of another country does not mean she has no right and she can be raped so brutally by the employees of railway, her fundamental right under Article 21 is violate.
- Thus, the government was liable to pay her compensation.
- In State of Rajasthan vs. Mst. Vidhyawati, the court held that the government is vicariously liable for the acts of its employee.
Judgment:
The court held that; railway is a commercial activity and by establishing Yatri Niwas to provide housing and living facilities to passengers on charges is a part of the commercial activity of the Union of India and it can’t be equated with Sovereign power of state. The employees of the Union of India who are employed to run the Railways and its management, that includes Railway Stations and Yatri Niwas, works as essential parts to run the commercial machinery of Government. If in the course of their employment they commit any tort against any person the government will be held vicariously liable in damages to the person to whom the wrong has been done by employees of Union of India.
The court was of the view that only because Hanuffa was a foreign national does not mean she has no right. Article 14 of the constitution uses word person, which means the article covers both citizens and non-citizens under its purview.
The leave was denied.
