Delhi Jal Board Vs. National
Campaign for Dignity and Rights of Sewerage and Allied Workers & others
J U D G M E N T
G.S. Singhvi, J.
1.
Leave
granted.
2.
This
appeal filed by Delhi Jal Board for setting aside an interlocutory order passed
by the Division Bench of the Delhi High Court whereby it has been directed to
deposit Rs.79,000/- with Delhi High Court Legal Services Committee in addition to
Rs.1.71 lacs already paid to the families of the 2deceased worker, namely,
Rajan is one of the several thousand cases filed by the State and/or its
agencies/instrumentalities to challenge the orders passed by the High Courts for
ensuring that the goal of justice set out in the preamble to the Constitution
of India is fulfilled, at least in some measure, for the disadvantaged sections
of the society who have been deprived of fundamental rights to equality, life
and liberty for last more than 6 decades. The appeal is also illustrative of
how the State apparatus is insensitive to the safety and well being of those who
are, on account of sheer poverty, compelled to work under most unfavourable conditions
and regularly face the threat of being deprived of their life.
3.
The
laws enacted by Parliament and State legislatures provide for payment of
compensation to the legal representatives of those killed in air, rail or motor
accident. The legal representatives of a workman, who dies while on duty in a factory/industry/establishment
get a certain amount of compensation. Even those who are killed in police
action get compensation in the form of ex-gratia announced by the political apparatus
of the State.
However, neither the
law makers nor those who have been entrusted with the duty of implementing the laws
enacted for welfare of the unorganized workers have put in place appropriate mechanism
for protection of persons 3employed by or through the contractors to whom
services meant to benefit the public at large are outsourced by the State and/or
its agencies/instrumentalities like the appellant for doing works, which are
inherently hazardous and dangerous to life nor made provision for payment of
reasonable compensation in the event of death.
4.
Since
the legal representatives of the persons who work in the sewers laid or
maintained by the State and/or its agencies/instrumentalities on their own or
through the contractors and who get killed due to negligence of the employer do
not have the means and resources for seeking intervention of the judicial
apparatus of the State, the National Campaign for Dignity and Rights of
Sewerage and Allied Workers, which is engaged in the welfare of sewage workers
filed Writ Petition No.5232/2007 in the Delhi High Court to highlight the
plight of sewage workers many of whom died on account of contemptuous apathy shown
by the public authorities and contractors engaged by them and even private individuals/enterprises
in the matter of providing safety equipments to those who are required to work under
extremely odd conditions. In paragraphs 4 to 6 and 8 of the petition, the
petitioner made the following averments: "
That the Petition seeks
to highlight the plight of sewage workers in Delhi. Delhi generates large
quantities of sewage. At present, the total quantity of sewage generated is
2871 mld. Delhi Jal Board is responsible for treatment and disposal of wastewater
through a network of about 5600 km of internal, peripheral and trunk sewers, for
which approximately 5500 sewage workers are employed with Delhi Jal Board for
maintenance of the sewage system and other related works. The working conditions
for sewage workers are such that they are not only exposed to maximum risk
against numerous toxic and harmful substances, but also they face suffocation
and accidental deaths, while working. These workers suffer from high morality
and morbidity due to such exposure at workplace. Hereto marked and annexed as Annexure
P-1 are the photographs showing the sewage workers of Delhi as photographed by
Indian Express. These photographs tell the sad story of the plight of these
workers as of today.
5.
Scores
of sewage/manhole workers die every year doing this work in Delhi. These deaths
are rarely documented. On 7.5.07 it was reported by Navbharat Times that in 2003
the following deaths of manhole workers took place:
|
Date
|
Place
|
Number
of Deaths.
|
|
22
March
|
Brahmpuri
|
1
|
|
23
March
|
Shahdara
|
2
|
|
11
April
|
Shaktinagar
|
3
|
|
25
June
|
Rithala
STP
|
5
|
|
July
|
Connaught
Place
|
3
|
|
July
|
Okhla
|
1
|
|
October
|
Uttamnagar
|
4
|
In 2004 the following
deaths took place:
|
Date
|
Place
|
Number
of Deaths.
|
|
24
May
|
Vazirpur
|
3
|
|
25
May
|
Gautampuri
|
1
|
|
11
June
|
Samaypur
|
2
|
|
July
|
Vazirpur
|
2
|
|
October
|
Rohini
|
2
|
|
October
|
Padpadur
|
2
|
Hereto annexed an
(Annexure P-2 is the translated copy of the news article titled `Thekedaron Ki
Laparwahi se ho rahi hain mauten' appearing in Navbharat Times on 7.05.07.
6.
Even
in year 2007, on 6.5.07 three sewage workers Ramemsh, Santosh and Ashish while
working inside the sewer inhaled poisonous gases and died of suffocation. Hereto
marked and annexed as Annexure P-3 is the news report appearing in the Times of
India dated 7.5.2007. The accident took place near Madrasi Nallah in front of
Vijay Enclave, Dabri (South West Delhi). The claiming work was being done in
complete violation of the National Human Rights Commission guidelines. The victims
worked without any helmet or gas masks, which are mandatory, as stated by NHRC,
for the kind of work, they were doing. Neither there was any first aid kit with
the workers nor artificial respirators and portable ladders were made available
to them by the contractors. Apparently contractors violated all the rules and
guidelines.
8. That, a report has
been prepared by Centre for Education and Communication in collaboration with
Occupational Health & Safety Management Consultancy Services on "Health
& Safety Status of Sewage Workers in Delhi". The report concludes: 6"...The
workers are suffering from high mortality and morbidity due to exposure at workplace.
33 workers had died in last 2 years due to accidents while working on the blocked
sewer lines...Fifty-nine per cent of the workers enter underground sewer
manholes more than 10 times a month and half of them have to work more than 8
hours a day.
While working in underground
pipelines, an overwhelming majority of them have had cuts or injuries,
experienced irritation of eyes and suffered from skin rash. Forty-one workers
have reported syncope, and other 24 reported temporary loss of consciousness. A
little over one-third of the workers had been immunized against tetanus while none
of them had been vaccinated against hepatitis B.Approximately 46 per cent of workers
across all age group were found to be underweight according to Body Mass Index
(BMI) calculation. 37 per cent have less hemoglobin than the normal range. More
than 65 per cent have higher eosin Phil count (6 per cent) in spite of having normal
leukocyte counts (91 per cent). None of the samples tested for HBsAg were tested
positive.
Results of urine
examination pointed to irreversible damaged done to the body organ system.More
than 50 per cent of the pulmonary function tests results were abnormal. Chest X-rays
results further confirmed the loss of functional capacity of the respiratory
system of the workers.None of the worker has been given any formal
communication by the employer about the hazard present during the work. None
has been trained to provide first aid during any miss-happening.....usage of other
protective gears like gloves, mask, and shoes were bare minimum. Even supply of
necessary safety gears was not adequate to meet the requirements. All daily wagers
were getting a wage of approximately 2950 rupees per months without any other
benefit irrespective of service period.""
The petitioner then referred
to order dated 15.6.2006 passed by the Gujarat High Court in Special Civil
Application No. 8989/2001 - Kamdar Swasthya Suraksha Mandal and Special Civil
Application No.11706/2004 - the Manhole Workers Union and Lok Adhikar Sangh and
made various prayers including issue of a mandamus directing the respondents to
provide every sewage worker with protective gears, clothing and equipments in
terms of the order passed by the Gujarat High Court in the two Civil Special
Applications, pay compensation of Rs.10 lacs to the families of the workers who
died after entering the manhole for sewage cleaning and make provision for
comprehensive medical checkup of all the sewage workers and provide them
medical treatment free of cost along with full wages for the period of illness.
5. After taking cognizance
of the averments contained in the writ petition, the Division Bench of the High
Court issued notice to the respondents and also made a request to one of the
Judges - Dr. Justice S. Muralidhar, to make an attempt to find out workable solution
to the problems faced by sewage workers. The learned Judge heard the
representatives of the writ petitioner, appellant and other instrumentalities
of the State, examined the documents produced by them and passed order dated
5.4.2008 incorporating therein several suggestions for protection of the
workers engaged in cleaning of manhole etc.. The Division Bench of the High
Court, considered the suggestions made by Dr. Justice S. Muralidhar, the affidavits
and documents filed by the appellant and the New Delhi Municipal Council and
passed detailed order dated 20.8.2008, paragraphs 9 and 10 of which read as
under:
"9. Having considered
the various reports made by the concerned agencies and also the submissions made
by the concerned agencies and also the submissions made at the bar, we pass the
following interim directions pending final disposal of this writ petition:
a.
The
medical examination and medical treatment will be given free of charge to sewer
workers and the treatment will continue for all such workers found to be suffering
from an occupational disease, ailment or accident until the workman is cured or
until death.
b.
The
services of the sewer workers are not to be terminated, either by the respondents
or the contractors engaged by them, during the period of illness and they shall
be treated as if on duty and will be paid their wages.
c.
Compensation
shall be paid by the respondents and recoverable from the contractors, if
permissible in law, to all the workmen suffering from any occupational disease,
9ailment or accident in accordance with the provisions of the Workmen's
Compensation Act, 1923.
d.
The
respondents shall pay on the death of any worker, including any contract
worker, an immediate ex-gratia solatium of Rs. One lac with liberty to recover
the same from contractors, if permissible in law.
e.
The
respondents shall pay / ensure payment of all statutory dues such as Provident Fund,
Gratuity and Bonus to all the sewer workers, including contract workers, as
applicable in law.
f.
The
respondents shall provide as soon as possible modern protective equipments to
all the sewer workers in consultation with the petitioner organization.(g) The respondents
shall provide soap and oil to all the workmen according to the present quota, but
on monthly basis and not at the end of the year.
g.
The
respondents shall provide restrooms and canteens, in accordance with the DJB model
rules, including therein first-aid facilities, safe drinking water, washing facilities,
latrines and urinals, shelters, crhches and canteens as set out in the model
rules.
h.
There
are to be provided at what is known as 'stores' which are the places where the
workers assemble to give their attendance and from where they depart to their
respective work sites.
i.
The
respondents shall provide all workman, including contract workmen, with an
accident-card-cum-wage-slip as set out in clause 8 of the C.P.W.D./PWD
(DA)/Delhi Jal Board Contractors Labour Regulations (for short "Labour
Regulations").
j.
The
respondents shall provide all workers, including contract workers, employment
cards as set out in clause 9 of the Labour Regulations and, on termination of
services provide the contract workers and others with a 10service certificate as
set out in clause 10 of the Labour Regulations.
k.
The
respondents shall authenticate by signing the payment of wages register for
contract workers in terms of clause 5 of the Labour Regulations.
l.
The
respondents shall submit to this court and to the petitioner within four weeks
from today the full list of contract workers and contractors engaged for work
relating to the sewers together with the wages paid to such workmen and the
number of years of employment of the workers.
m.
The
DJB is directed to ensure that the ex-gratia payment in case of deaths of sewer
workers has been paid to the families of deceased workmen and in case such
compensation is not paid, release the same within a period of eight weeks.
n.
NDMC
is directed to pay ex gratia payment of Rs. one lac each in respect of the
accident of 7th December, 2003 where three persons working under the NDMC
contractors died, with liberty to recover the same from the contractor, if
permissible in law.
o.
The
DJB and NDMC are directed to hold an inquiry into deaths of sewer workers referred
to in paragraphs 15 and 16 of the written submission of the petitioner dated 22nd
July, 2008 and submit a report to this Court within a period of eight weeks. If
it is found that the contract workers in question were working under the contractors
employed by NDMC/DJB, ex-gratia compensation of Rs. One lac shall be released
forthwith to the families of the victims subject to right of recovery from
contractors in accordance with law.
p.
The
respondents shall place on record a map showing the areas within the NCD (1)
where no sewage facilities are available (2) where modern machinery cannot enter
due to narrow lanes or otherwise (3) the areas serviced by 11 modern machinery and
(4) critical area where frequent deaths, accidents and blockages occur, it shall
be done within three months from today.
q.
Lastly,
the respondents are directed to place on record the proposals and plans to phase
out manual work and replace it with mechanized sewer cleaning, as envisaged by DJB
as well as NDMC, which shall be done within three months. 10. In order to
ensure the compliance of the above directions, we constitute a Committee
consisting of:
i.
Mr.
S.R. Shankaran, IAS retired Chief Secretary to the Government of Tripura,
Chairman:
ii.
One
officer each to be nominated by NDMC, DDA and DJB respectively, who shall not
be less than the rank of Under Secretary to the Government of India.
iii.
Joint
Secretary of the Social Welfare Department, Government of NCT of Delhi to be nominated
by the Secretary of that Department who shall be the Convener of the committee.
iv.
One
representative of the petitioner organization.
"6. While the Committee
constituted by the High Court was examining various issues concerning the sewage
workers including their health and safety, Hindustan Times (Metro edition) dated
26.3.2009 reported that as many as 6 sewage workers had died in Delhi in the
month of March 2009 due to inhaling of toxic gasses in the manholes because
they did not have protective gears. Two of the workers died in the area of
Alipur (Narela), 12two in the area of Bawana and one each in Sector 6, Narela
and Delhi Zoo, Sunder Nagar, New Delhi. Four of these deaths occurred within the
jurisdiction of appellant - Delhi Jal Board, Delhi Development Authority and Delhi
State Industrial Development Corporation and two deaths occurred in private
farm house - Katyal Farm House, Bakhtawarpur Road, Narela.
7.
After
taking cognizance of the aforesaid report, the Division Bench of the High Court
directed appellant - Delhi Jal Board and the Delhi Development Authority to
file their respective affidavits. Notices were also issued to Delhi State Industrial
Development Corporation, the owners of private farm house and the police
department.
8.
8.
In the affidavit filed by him, Sri Sukhai Ram, Chief Engineer, Delhi Jal Board
claimed that the person who died on 15.3.2009 was a painter and not a sewage beldar.
He gave out that the victim was engaged by a sub-contractor, namely, Kanta Prasad
who, in turn, had been engaged by M/s. AARSELF Michigan-JV, to whom contract
was awarded for rehabilitation of sewer in the zoo area. According to Shri
Sukhai Ram, the victim fell into the sewer because he became unconscious after
inhaling the fumes of epoxy. He also stated that a sum of Rs.1.71 lacs was paid
to the family of the victim 13by the contractor. In the affidavits filed on
behalf of the Delhi Development and the Delhi State Industrial Development
Corporation, it was claimed that the deceased workers were not employed by or through
them. However, during the course of hearing, learned counsel appearing on behalf
of the appellant and other authorities conceded that as per the FIRs., the
workers had died because they were not provided with protective gears before
being asked to work in the manholes.
9.
After
considering the affidavits filed by the State agencies and the arguments made before
it, the Division Bench of the High Court passed order dated 21.4.2009 (impugned
order), the relevant portions of which read as under: "On going through
the FIR, however, it is clearly seen that the affidavit filed on behalf of DJB
is completely misleading. It is seen from the FIR that the victim Rajan and
another workman, namely, Raj Kumar went inside the sewer through stairs. Before
going down they had asked the official of the contractor for safety equipments and
oxygen masks, but the official of the contractor did not pay heed to their
requests. It is further seen from the FIR that they were working in the same
manner for the last one week but despite repeated requests made to the contractor
they were not provided with safety equipments and oxygen masks.
It is further seen that
they were painting the sewer and due to presence of toxic gases and lack of
oxygen in the sewer, Rajan became unconscious and ultimately declared to be dead
when he was taken to the hospital. The other workman was feeling giddy and fell
down and sustained injuries on his face. Learned counsel appearing for the DJB conceded
that protective equipments were not provided by the DJB in spite of the
directions issued by this Court vide order dated 20th August, 2008. According
to him the responsibility was of the contractor to provide safety equipments as
per the contract. It is clear that the sewage workers were left at the mercy of
the contractor who failed to take basic precautions resulting in death of
workman Rajan. Insofar as the death that occurred within the jurisdiction of
DDA, it has been stated in its affidavit that no work of de-silting of sewage lines
or otherwise was in progress in theconcerned division of DDA in which the accident
took place.
It was stated that possibly
some local residents had employed a person by the name Rakesh Kumar on their ownto
check the particular manhole, in which the incident took place. During the course
of arguments, however, learned counsel for DDA conceded that the affidavit does
not reflect the correct position. He admitted that Rakesh Kumar Saini was entrusted
with the work of desilting of the sewage lines, but according to him the contract
was completed in December, 2008. Further, according to him though the contract provided
for a warranty period six months, the contractor could not have carried out any
further work in these wage line without prior permission of the DDA. Counsel
states that the DDA had not provided protective gears and equipments as
directed by this Court because under the contract it was the responsibility of the
contractor to provide the protective gears and equipments.
Insofar as DSIDC is
concerned, it is seen from the FIR that four workers were involved in the
incident. Two workersnamely, Manpal and Ram Braj Yadav died while two others
namely, Shyambir Sarvesh and Brajpal Yadav were injured. They were working
under the contractor engaged by the DSIDC i.e. M/s Arun Kumar Goel. It is seen from
the FIR that the workers were not provided with protective gears and safety
equipments. 15 As already noted, two deaths occurred in Katyal Farms House,
Bhaktwarpur Road, Narela. It is seen from the FIR that the workers who died
while carrying out the work of cleaning the sewer were employees of the contractor
by name Sunil, engaged by the Farm House owners.
Learned counsel
appearing for the farm house owners state that the owners have paid a sum of
Rs. 1 Lac in ex-gratia to the families of each of the victims. At the outset it
must be stated that both DJB and DDA have not complied with the directions
issued by this Court on 20 August, 2008, particularly directions for providing
protective gears and equipment and for issuing employment cards to the contractor's
workers. Let notice be issued to the CEO, DJB and the Vice Chairman, DDA to
show cause as why action for contempt should not be initiated against them
under the Contempt of Courts Act for violating the directions issued by this
Court vide order dated 20th August, 2008. Notice shall be returnable on 27th
August, 2009. DDA and DSIDC are directed to deposit the amount of compensation of
Rs.2.5 lacs per worker with the High Court Legal Services Committee (DHCLSC) for
being paid to the families of the victims within four weeks.
It will be open to
the DDA/DSIDC to adjust/recover the amount paid from the contractor. According to
the DJB, the contractor has already paid a sum of Rs.1.71 lacs to the victims' families.
DJB is directed to deposit the balance amount to compensation i.e. Rs.79,000/- with
the DHCLSC within four weeks. DHCLSC will ascertain whether the amount of Rs.1.71
lacs has been received by the victims' families as stated by the DJB. The
owners of Katyal Farm House shall deposit a sum of Rs.1.5 lacs per worker,
i.e., in all Rs.3 lacs, with DHCLSC. DHCLSC will ascertain whether the victims'
families have received the amount of Rs. 1 lac as claimed by the farm house
owners.
The CEO of DJB, Vice
Chairman of DDA and Managing Director of DSIDC are directed to file their
respective affidavits before the Committee within four weeks confirming that
their respective affidavits before the Committee within four weeks confirming
that their organizations have complied with all the 16 directions issued by this
Court from time to time and if there are any shortcomings, to specify them and also
to give an undertaking in writing before the Committee that all shortfalls shall
be rectified within a period to be fixed by the Committee. All the three
organizations are directed to file documents before the Committee indicating:
i.
That
all the muster roll workers and the contract workers have been provided with
protective gears.
ii.
That
all the muster roll workers and the contract workers have been provided
provident fund.
iii.
That
all the muster roll workers have been given employment card.
iv.
That
medical examination, as directed by this Court, is being conducted in respect
of contract workers fee of cost and copies of the medical records may also be furnished
to the petitioner union."
10.
Learned
counsel for the appellant, who had the tacit support of the learned counsel
representing the Government of National Capital Territory of Delhi, New Delhi Municipal
Council and the Delhi Development Authority, argued that the impugned order is
liable to be set aside because by entertaining the writ petition filed by respondent
No.1 in the name of public interest litigation and passing orders dated 20.8.2008
and 21.4.2009, the High Court transgressed the limits of its jurisdiction under
Article 226 of the Constitution and usurped the legislative power of the State.
Learned counsel referred to the directions contained in the two orders and
argued that 17the High Court does not have the jurisdiction to directly or
indirectly alter the terms of agreement entered into between the appellant and
the contractor - M/s. AARSELF Michigan-JV.
Learned counsel further
argued that the High Court committed serious error by directing the appellant to
pay compensation to the family of the worker ignoring that he was employed by
M/s. AARSELF Michigan-JV to whom the contract for rehabilitation of sewer in
the zoo area had been awarded. Learned counsel emphasized that as per the terms
of the agreement, it was the duty of the contractor to provide safety equipments
to the workers engaged in sewage operations and the appellant cannot be made
liable for the negligence, if any, of the contractor. Learned counsel then referred
to affidavit dated 18.4.2009 filed by the contractor to show that necessary
safety equipments were put in place and argued that the appellant and other
public authorities cannot be held liable for the accidental deaths.
Learned counsel lastly
argued that even if the High Court felt that it was the responsibility of the appellant
and other public authorities to compensate the victims of accident, there was no
occasion for directing issue of notice to the higher functionaries of the
appellant and the Delhi Development Authority to show cause against the
proposed initiation of proceedings under the Contempt of Courts Act, 1971 (for short,
`the 1971 Act') on the ground of alleged violation of the 18directions
contained in order dated 20.8.2008.
11.
Shri
Colin Gonsalves, learned senior counsel appearing for respondent No.1 supported
the impugned order and the directions given by the High Court for ensuring safety
of the persons employed by or through the appellant and other State agencies for
doing hazardous work by asserting that they cannot be absolved of their
liability to compensate the victims of accidents merely because the work of laying
and maintaining the sewage system has been outsourced. Learned senior counsel submitted
that the appellant is really not aggrieved by the direction given for payment of
compensation, but is bothered by the notice issued to its Chief Executive
Officer for initiation of proceedings under the 1971 Act. He submitted that
this Court should not entertain the appellant's grievance against such
directions because the concerned functionary can show to the High Court that he
has not committed contempt within the meaning of Section 2(b) of the 1971 Act.
12.
In
the light of the arguments made by the learned counsel, the following three
questions arise for our consideration: (1) Whether the High Court was justified
in entertaining the writ petition filed by respondent No.1 by way of public
interest litigation for compelling the respondents to take effective measures
for safety of sewage workers and ordering payment of compensation to the families
of the victims of accidents taking place during sewage operations, (2) Whether the
directions given by the High Court amount to usurpation of the legislative
power of the State, and (3) Whether the High Court was entitled to issue
interim direction for payment of compensation to the families of deceased
workers.Re: Question No.1:
13.
At
the threshold, we deem it necessary to erase the impression and misgivings of some
people that by entertaining petitions filed by social action
groups/activists/workers and NGOs for espousing the cause of those who, on account
of poverty, illiteracy and/or ignorance and similar other handicaps, cannot seek
protection and vindication of their constitutional and/or legal rights and
silently suffer due to actions and/or omissions of the State apparatus and/or
agencies/instrumentalities of the State or even private individuals, the superior
Courts exceed the unwritten boundaries of their jurisdictions. When the
Constitution of India was adopted, the people of this country resolved to
constitute India into a Sovereign Democratic Republic. They also resolved to
secure to all its citizens justice, social, economic and political; liberty of
thought, expression, belief, faith and worship; equality of status and of
opportunity; and to promote among them all fraternity assuring the dignity of
the individual and the unity and integrity of the nation.
14.
For
achieving the goals set out in the preamble, the framers of the Constitution
identified and recognized certain basic rights of the citizens and individuals and
pooled them in Part III, which has the title `Fundamental Rights' and
simultaneously incorporated Directive Principles of State Policy which, though
not enforceable by any Court are fundamental in governance of the country and
the State is under obligation to comply with the principles embodied in Part-IV
in making laws.
Article 38, which was
renumbered as Clause (1) thereof by the Constitution (Forty-fourth Amendment)
Act, 1978 declares that the State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the institutions of
the national life. Clause (2) of this Article, which was inserted by the same
Amending Act declares that State shall, in particular, strive to minimize the
inequalities in income, and endeavour to eliminate inequalities in status,
facilities and opportunities, not only amongst individuals, but also amongst groups
of people residing in different areas or engaged in different vocations.
Article 39(e)
mandates that the State shall, in particular, direct its policy towards securing
that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength. Article 39A which was
inserted by the Constitution (Forty-second Amendment) Act, 1976 lays down that the
State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities. Article 42 enjoins the State to make provision
for securing just and humane conditions of work and for maternity relief.
15.
In
last 63 years, Parliament and State Legislatures have enacted several laws for achieving
the goals set out in the preamble but their implementation has been extremely inadequate
and tardy and benefit of welfare measures enshrined in those legislations has
not reached millions of poor, downtrodden and disadvantaged sections of the
society and the efforts to bridge the gap between the haves and have-nots have
not yield the desired result. The most unfortunate part of the scenario is that
whenever one of the three constituents of the State i.e., judiciary, has issued
directions for ensuring that the right to equality, life and liberty no longer
remains illusory for those who suffer from the handicaps of poverty, illiteracy
and ignorance and directions are given for implementation of the laws enacted by
the legislature for the benefit of the have-nots, a theoretical debate is
started by raising the bogey of judicial activism or judicial overreach and the
orders issued for benefit of the weaker sections of the society are invariably
subjected to challenge in the higher Courts. In large number of cases, the sole
object of this litigative exercise is to tire out those who genuinely espouse
the cause of the weak and poor.
16.
This
Court has time and again emphasized the importance of the petitions filed pro
bono publico for protection of the rights of less fortunate and vulnerable
sections of the society. In People's Union for Democratic Rights v. Union of
India (1982) 3 SCC 235, this Court said: "We wish to point out with all
the emphasis at our command that public interest litigation which is a strategic
arm of the legal aid movement and which is intended to bring justice within the
reach of the poor masses, who constitute the low visibility area of humanity, is
a totally different kind of litigation from the ordinary traditional litigation
which is essentially of an adversary character where there is a dispute between
two litigating parties, one making claim or seeking 23relief against the other and
that other opposing such claim or resisting such relief.
Public interest
litigation is brought before the court not for the purpose of enforcing the right
of one individual against another as happens in the case of ordinary
litigation, but it is intended to promote and vindicate public interest which
demands that violations of constitutional or legal rights of large numbers of
people who are poor, ignorant or in a socially or economically disadvantaged
position should not go unnoticed and unredressed. That would be destructive of the
rule of law which forms one of the essential elements of public interest in any
democratic form of Government. The rule of law does not mean that the
protection of the law must be available only to a fortunate few or that the law
should be allowed to be prostituted by the vested interests for protecting and
upholding the status quo under the guise of enforcement of their civil and
political rights. The poor too have civil and political rights and the rule of law
is meant for them also, though today it exists only on paper and not in reality.
If the sugar barons and the alcohol kings have the fundamental right to carry on
their business and to fatten their purses by exploiting the consuming public, have
the chamars belonging to the lowest strata of society no fundamental right to earn
an honest living through their sweat and toil?
The former can
approach the courts with a formidable army of distinguished lawyers paid in four
or five figures per day and if their right to exploit is upheld against the
Government under the label of fundamental right, the courts are praised for
their boldness and courage and their independence and fearlessness are applauded
and acclaimed. But, if the fundamental right of the poor and helpless victims
of injustice is sought to be enforced by public interest litigation, the so-called
champions of human rights frown upon it as waste of time of the highest court
in the land, which, according to them, should not engage itself in such small and
trifling matters. Moreover, these self-styled human rights activists forget that
civil and political rights, priceless and invaluable as they are for freedom
and democracy, simply do not exist for the vast masses of our people.
Large numbers of men,
women and children who constitute the bulk of our population are today living a
sub-human existence in conditions of abject poverty; utter grinding poverty has
broken their back and sapped their moral fibre. 24They have no faith in the
existing social and economic system. Public interest litigation, as we conceive
it, is essentially a cooperative or collaborative effort on the part of the
petitioner, the State or public authority and the court to secure observance of
the constitutional or legal rights, benefits and privileges conferred upon the
vulnerable sections of the community and to reach social justice to them. The State
or public authority against whom public interest litigation is brought should
be as much interested in ensuring basic human rights, constitutional as well as
legal, to those who are in a socially and economically disadvantaged position,
as the petitioner who brings the public interest litigation before the court.
The State or public
authority which is arrayed as a respondent in public interest litigation
should, in fact, welcome it, as it would give it an opportunity to right a wrong
or to redress an injustice done to the poor and weaker sections of the
community whose welfare is and must be the prime concern of the State or the
public authority.There is a misconception in the minds of some lawyers,
journalists and men in public life that public interest litigation is
unnecessarily cluttering up the files of the court and adding to the already staggering
arrears of cases which are pending for long years and it should not therefore be
encouraged by the court. This is, to our mind, a totally perverse view smacking
of elitist and status quoist approach. Those who are decrying public interest
litigation do not seem to realise that courts are not meant only for the rich
and the well-to-do, for the landlord and the gentry, for the business magnate and
the industrial tycoon, but they exist also for the poor and the down-trodden,
the have-nots and the handicapped and the half-hungry millions of our
countrymen. So far the courts have been used only for the purpose of vindicating
the rights of the wealthy and the affluent.
It is only these
privileged classes which have been able to approach the courts for protecting
their vested interests. It is only the moneyed who have so far had the golden
key to unlock the doors of justice. .........No State has a right to tell its
citizens that because a large number of cases of the rich and the well-to-do
are pending in our courts, we will not help the poor 25 to come to the courts for
seeking justice until the staggering load of cases of people who can afford, is
disposed of. The time has now come when the courts must become the courts for
the poor and struggling masses of this country. They must shed their character as
upholders of the established order and the status quo. They must be sensitised
to the need of doing justice to the large masses of people to whom justice has
been denied by a cruel and heartless society for generations. The realisation must
come to them that social justice is the signature tune of our Constitution and it
is their solemn duty under the Constitution to enforce the basic human rights
of the poor and vulnerable sections of the community and actively help in the realisation
of the constitutional goals." (emphasis supplied)
17.
In
Hussainara Khatoon (IV) v. State of Bihar (1980) 1 SCC 98, P.N. Bhagwati, J.
(as he then was) observed: "..... Today, unfortunately, in our country the
poor are priced out of the judicial system with the result that they are losing
faith in the capacity of our legal system to bring about changes in their life
conditions and to deliver justice to them. The poor in their contact with the
legal system have always been on the wrong side of the line. They have always
come across `law for the poor' rather than `law of the poor'. The law is
regarded by them as something mysterious and forbidding--always taking something
away from them and not as a positive and constructive social device for changing
the social economic order and improving their life conditions by conferring rights
and benefits on them. The result is that the legal system has lost its
credibility for the weaker sections of the community."
18.
In
Municipal Council, Ratlam v. Vardhichan (1980) 4 SCC 162, Krishna Iyer, J.
said: 26 "... The truth is that a few profound issues of processual jurisprudence
of great strategic significance to our legal system face us and we must zero-in
on them as they involve problems of access to justice for the people beyond the
blinkered rules of `standing' of British-Indian vintage. If the centre of
gravity of justice is to shift, as the Preamble to the Constitution mandates, from
the traditional individualism of locus standi to the community orientation of
public interest litigation, these issues must be considered.... xxx xxx xxx .
... Why drive common people to public interest action? Where directive
principles have found statutory expression in do's and don'ts the court will not
sit idly by and allow municipal government to become a statutory mockery. The law
will relentlessly be enforced and the plea of poor finance will be poor alibi
when people in misery cry for justice."
19.
In
State of Uttaranchal v. Balwant Singh Chaufal (2010) 3 SCC 402), this Court
examined various facets of public interest litigation in the backdrop of criticism
from within and outside the system. Dalveer Bhandari, J. made lucid analysis of
the concept and development of public interest litigation in the following
three phases: "Phase I.--It deals with cases of this Court where
directions and orders were passed primarily to protect fundamental rights under
Article 21 of the marginalised groups and sections of the society who because of
extreme poverty, illiteracy and ignorance cannot approach this Court or the
High Courts. Phase II.--It deals with the cases relating to protection, preservation
of ecology, environment, forests, marine life, wildlife, mountains, rivers,
historical monuments, etc. etc. 27 Phase III.--It deals with the directions issued
by the Courts in maintaining the probity, transparency and integrity in
governance." While dealing with the first phase of development, the Court
referred to large number of precedents and recorded its conclusion in the
following words:
"We would not
like to overburden the judgment by multiplying these cases, but a brief resume
of these cases demonstrates that in order to preserve and protect the fundamental
rights of marginalised, deprived and poor sections of the society, the courts
relaxed the traditional rule of locus standi and broadened the definition of aggrieved
persons and gave directions and orders. We would like to term cases of this period
where the Court relaxed the rule of locus standi as the first phase of the public
interest litigation. The Supreme Court and the High Courts earned great respect
and acquired great credibility in the eyes of public because of their
innovative efforts to protect and preserve the fundamental rights of people
belonging to the poor and marginalised sections of the society."
20.
These
judgments are complete answer to the appellant's objection to the
maintainability of the writ petition filed by respondent No.1. What the High
Court has done by entertaining the writ petition and issuing directions for protection
of the persons employed to do work relating to sewage operations is part of its
obligation to do justice to the disadvantaged and poor sections of the society.
We may add that the superior Courts will be failing in their constitutional
duty if they decline to entertain petitions filed by genuine social groups,
NGOs and social workers for espousing the cause of those who are deprived of
the basic rights available to every human being, what to say of fundamental
rights guaranteed under the Constitution.
It is the duty of the
judicial constituent of the State like its political and executive constituents
to protect the rights of every citizen and every individual and ensure that
everyone is able to live with dignity. Given the option, no one would like to
enter the manhole of sewage system for cleaning purposes, but there are people
who are forced to undertake such hazardous jobs with the hope that at the end
of the day they will be able to make some money and feed their family.
They risk their lives
for the comfort of others. Unfortunately, for last few decades, a substantial segment
of the urban society has become insensitive to the plight of the poor and downtrodden
including those, who, on account of sheer economic compulsions, undertake
jobs/works which are inherently dangerous to life. People belonging to this
segment do not want to understand why a person is made to enter manhole without
safety gears and proper equipments. They look the other way when the body of a
worker who dies in the manhole is taken out with the help of ropes and cranes. In
this scenario, the Courts are not only entitled but are under constitutional obligation
to take cognizance of the issues relating to the lives of the people who are
forced to undertake jobs which are hazardous 29and dangerous to life.
It will be a tragic and
sad day when the superior Courts will shut their doors for those, who without
any motive for personal gain or other extraneous reasons, come forward to seek protection
and enforcement of the legal and constitutional rights of the poor, downtrodden
and disadvantaged sections of the society. If the system can devote hours, days
and months to hear the elitist class of eminent advocates who are engaged by
those who are accused of evading payment of taxes and duties or otherwise causing
loss to public exchequer or who are accused of committing heinous crimes like murder,
rape, dowry death, kidnapping, abduction and even acts of terrorism or who come
forward with the grievance that their fundamental right to equality has been
violated by the State and/or its agencies/instrumentalities in contractual
matters, some time can always be devoted for hearing the grievance of vast
majority of silent sufferers whose cause is espoused by bodies like respondent
No.1.Re: Question No.2:
21.
There
have been instances in which this Court has exercised its power under Article
32 read with Article 142 and issued guidelines and directions to fill the vacuum.
Vishaka v. State of Rajasthan (1997) 6 SCC 241, Vineet Narain v. Union of India
(1998) 1 SCC 226 and Union of India v. 30Association for Democratic Reforms (2002)
5 SCC 294 are illuminating examples of the exercise of this Court's power under
Article 32 for ensuring justice to the common man and effective exercise of
fundamental rights by the citizens. In Vishaka v. State of Rajasthan (supra), the
Court entertained the petition filed by certain social activists and NGOs for
effective protection of fundamental rights of working women under Articles 14,
19 and 21. In paragraph 11 of the judgment, the Court made a note of its
obligation under Article 32 of the Constitution in the following words:
"11. The obligation
of this Court under Article 32 of the Constitution for the enforcement of these
fundamental rights in the absence of legislation must be viewed along with the
role of judiciary envisaged in the Beijing Statement of Principles of the Independence
of the Judiciary in the LAWASIA region. These principles were accepted by the
Chief Justices of Asia and the Pacific at Beijing in 1995 as those representing
the minimum standards necessary to be observed in order to maintain the independence
and effective functioning of the judiciary. The objectives of the judiciary
mentioned in the Beijing Statement are: "Objectives of the Judiciary: 10. The
objectives and functions of the Judiciary include the following: (a) to ensure
that all persons are able to live securely under the rule of law; (b) to promote,
within the proper limits of the judicial function, the observance and the attainment
of human rights; and (c) to administer the law impartially among persons and between
persons and the State."
22.
In
Vineet Narain v. Union of India (supra), the Court observed: "The powers conferred
on this Court by the Constitution are ample to remedy this defect and to ensure
enforcement of the concept of equality. There are ample powers conferred by Article
32 read with Article 142 to make orders which have the effect of law by virtue
of Article 141 and there is mandate to all authorities to act in aid of the
orders of this Court as provided in Article 144 of the Constitution. In a
catena of decisions of this Court, this power has been recognised and
exercised, if need be, by issuing necessary directions to fill the vacuum till such
time the legislature steps in to cover the gap or the executive discharges its role.
" (emphasis supplied)
23.
In
Union of India v. Association for Democratic Reforms (supra), this Court was
called upon to examine the correctness of the directions given by the Division Bench
of Delhi High Court for implementation of the recommendations made by the Law
Commission in its 170th Report. While modifying the directions given by the
High Court, the Court observed: "45. Finally, in our view this Court would
have ample power to direct the Commission to fill the void, in the absence of
suitable legislation covering the field and the voters are required to be well
informed and educated about contesting candidates so that they can elect a
proper candidate by their own assessment.
It is the duty of the
executive to fill the vacuum by executive orders because its field is
coterminous with that of the legislature, and where there is inaction by the
executive, for whatever reason, the judiciary must step in, in exercise of its constitutional
32 obligations to provide a solution till such time the legislature acts to
perform its role by enacting proper legislation to cover the field. The adverse
impact of lack of probity in public life leading to a high degree of corruption
is manifold. Therefore, if the candidate is directed to declare his/her spouse's
and dependants' assets --immovable, movable and valuable articles -- it would
have its own effect.
This Court in Vishaka
v. State of Rajasthan dealt with the incident of sexual harassment of a woman at
work place which resulted in violation of fundamental right of gender equality and
the right to life and liberty and laid down that in the absence of legislation,
it must be viewed along with the role of the judiciary envisaged in the Beijing
Statement of Principles of Independence of Judiciary in the LAWASIA region. The
decision has laid down the guidelines and prescribed the norms to be strictly
observed in all work places until suitable legislation is enacted to occupy the
field. In the present case also, there is no legislation or rules providing for
giving necessary information to the voters. As stated earlier, this case was
relied upon in Vineet Narain case where the Court has issued necessary
guidelines to CBI and the Central Vigilance Commission (CVC) as there was no legislation
covering the said field to ensure proper implementation of the rule of
law."
24.
In
view of the principles laid down in the aforesaid judgments, we do not have any
slightest hesitation to reject the argument that by issuing the directions, the
High Court has assumed the legislative power of the State. What the High Court has
done is nothing except to ensure that those employed/engaged for doing work which
is inherently hazardous and dangerous to life are provided with life saving
equipments and the employer takes care of their safety and health. The State and
its agencies/instrumentalities cannot absolve themselves of the responsibility
to put in place effective mechanism for ensuring safety of the workers employed
for maintaining and cleaning the sewage system. The human beings who are
employed for doing the work in the sewers cannot be treated as mechanical robots,
who may not be affected by poisonous gases in the manholes. The State and its agencies/instrumentalities
or the contractors engaged by them are under a constitutional obligation to
ensure the safety of the persons who are asked to undertake hazardous jobs. The
argument of choice and contractual freedom is not available to the appellant
and the like for contesting the issues raised by respondent No.1.Re: Question
No.3:
25.
We
shall now consider whether the High Court was justified in issuing interim
directions for payment of compensation to the families of the victims. At the
outset, we deprecate the attitude of a public authority like the appellant, who
has used the judicial process for frustrating the effort made by respondent
No.1 for getting compensation to the workers, who died due to negligence of the
contractor to whom the work of maintaining sewage system was outsourced. We
also express our dismay that the High Court has thought it proper to direct payment
of a paltry amount of Rs.1.5 to 2.25 lakhs to the families of the victims. Rudul
Sah v. State of Bihar (1983) 4 34SCC 141 is the lead case in which the Court exercised
its power under Article 32 for compensating a person who was unlawfully
detained for 14 years. Paragraphs 9 and 10 of the judgment, which contain the
reasons for making a departure from the old and antiquated rule that a person,
who has suffered due to the negligence of a public authority, can claim damages
by filing suit, are extracted below: "
9. 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 courts, 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. But the
important question for our consideration is whether in the exercise of its
jurisdiction under Article 32, this Court can pass an order for the payment of money
if such an order is in the nature of compensation consequential upon the
deprivation of a fundamental right...... .........
10. We cannot resist
this argument. We see no effective answer to it save the stale and sterile
objection that the petitioner may, if so advised, file a suit to recover damages
from the State Government. Happily, the State's counsel has not raised that objection.
The petitioner could have been relegated to the ordinary remedy of a suit if his
claim to compensation was factually controversial, in the sense that a civil court
may or may not have upheld his claim. But we have no doubt that if the petitioner
files a suit to recover damages for his illegal detention, a decree for damages
would have to be passed in that suit, though it is not possible to predicate, in
the absence of evidence, the precise amount which would be decreed in his favour.
In these circumstances, the refusal of this Court to pass an order of compensation
in favour of the petitioner will be doing mere lip-service to his fundamental
right to liberty which the State Government has so grossly violated. Article 21
which guarantees the right to life and liberty will be denuded of its significant
content if the power of this Court were limited to passing orders of release from
illegal detention. One of the telling ways in which the violation of that right
can reasonably be prevented and due compliance with the mandate of Article 21
secured, is to mulct its violators in the payment of monetary compensation.
Administrative sclerosis
leading to flagrant infringements of fundamental rights cannot be corrected by
any other method open to the judiciary to adopt. 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. It may have recourse against those officers."
26.
In
Nilabati Behera v. State of Orissa (1993) 2 SCC 746, this Court awarded compensation
to the mother of a young man who was beaten to death in police custody. The Court
held that its powers to enforce fundamental rights carries with it an
obligation to forge new tools for doing justice. In Paschim Banga Khet Mazdoor
Samity v. State of W.B. (1996) 4 SCC 37, this Court examined the issue whether
a victim of apathy of the staff of government hospital is entitled to compensation
and answered the same in the following words: "The Constitution envisages the
establishment of a welfare State at the federal level as well as at the State level.
In a welfare State the primary duty of the Government is to secure the welfare
of the people.
Providing adequate
medical facilities for the people is an essential part of the obligations
undertaken by the Government in a welfare State. The Government discharges this
obligation by running hospitals and health centres which provide medical care to
the person seeking to avail of those facilities. Article 21 imposes an
obligation on the State to safeguard the right to life of every person.
Preservation of human life is thus of paramount importance. The government
hospitals run by the State and the medical officers employed therein are duty-bound
to extend medical assistance for preserving human life. Failure on the part of a
government hospital to provide timely medical treatment to a person in need of such
treatment results in violation of his right to life guaranteed under Article
21. In the present case
there was breach of the said right of Hakim Seikh guaranteed under Article 21 when
he was denied treatment at the various government hospitals which were
approached even though his condition was very serious at that time and he was
in need of immediate medical attention. Since the said denial of the right of
Hakim Seikh guaranteed under Article 21 was by officers of the State, in
hospitals run by the State, the State cannot avoid its responsibility for such denial
of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional
rights guaranteed under Part III of the Constitution the position is well
settled that adequate compensation can be awarded by the court for such violation
by way of redress in proceedings under Articles 32 and 226 of the Constitution.
(See: Rudul Sah v. State of Bihar; Nilabati Behera v. State of Orissa; Consumer
Education and Research Centre v. Union of India.) Hakim Seikh should,
therefore, be suitably compensated for the breach of his right guaranteed under
Article 21 of the Constitution. Having regard to the facts and circumstances of
the case, we fix the amount of such compensation at Rs 25,000.
A sum of Rs 15,000 was
directed to be paid to Hakim Seikh as interim compensation under the orders of
this Court dated 22-4-1994. The balance amount should be paid by Respondent 1
to Hakim Seikh within one month. It is no doubt true that financial resources are
needed for providing these facilities. But at the same time it cannot be ignored
that it is the constitutional obligation of the State to provide adequate medical
services to the people. Whatever is necessary for this purpose has to be done.
In the context of the constitutional obligation to provide free legal aid to a poor
accused this Court has held that the State cannot avoid its constitutional obligation
in that regard on account of financial constraints. [See: Khatri (II) v. State
of Bihar, SCC at p. 631.]
The said observations
would apply with equal, if not greater, force in the matter of discharge of
constitutional obligation of the State to provide medical aid to preserve human
life. In the matter of allocation of funds for medical services the said constitutional
obligation of the State has to be kept in view. It is necessary that a time-bound
plan for providing these services should be chalked out keeping in view the
recommendations of the Committee as well as the requirements for ensuring availability
of proper medical services in this regard as indicated by us and steps should be
taken to implement the same. The State of West Bengal alone is a party to these
proceedings. Other States, though not parties, should also take necessary steps
in the light of the recommendations made by the Committee, the directions
contained in the memorandum of the Government of West Bengal dated 22-8-1995 and
the further directions given herein."
27.
In
Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465, this Court
considered the question whether the High Court could entertain the petition
filed by the respondent by way of Public Interest Litigation and award compensation
of Rs.10 lakhs to Hanuffa Khatoon, a national of Bangladesh, who was sexually assaulted
by the employees of Eastern Railway. While rejecting the argument of the
appellant that the victim of rape could have availed remedy by filing suit in a
Civil Court, the two-Judge 38Bench referred to the distinction made between "public
law" and "private law" in Common Cause,
A Registered Society
v. Union of India (1999) 6 SCC 667 and other cases in which compensation was
awarded for violation of different rights and observed: "Having regard to
what has been stated above, the contention that Smt Hanuffa Khatoon should have
approached the civil court for damages and the matter should not have been considered
in a petition under Article 226 of the Constitution, cannot be accepted. Where public
functionaries are involved and the matter relates to the violation of
fundamental rights or the enforcement of public duties, the remedy would still be
available under the public law notwithstanding that a suit could be filed for
damages under private law."
The Court then referred
to the fundamental rights guaranteed under Articles 20 and 21 of the
Constitution and proceeded to observe: "The word "LIFE" has also
been used prominently in the Universal Declaration of Human Rights, 1948. (See Article
3 quoted above.) The fundamental rights under the Constitution are almost in consonance
with the rights contained in the Universal Declaration of Human Rights as also
the Declaration and the Covenants of Civil and Political Rights and the Covenants
of Economic, Social and Cultural Rights, to which India is a party having
ratified them, as set out by this Court in Kubic Darusz v. Union of India. That
being so, since "LIFE" is also recognised as a basic human right in the
Universal Declaration of Human Rights, 1948, it has to have the same meaning
and interpretation as has been placed on that word by this Court in its various
decisions relating to Article 21 of the Constitution. The meaning of the word "life"
cannot be narrowed down. According to the tenor of the language used in 39 Article
21, it will be available not only to every citizen of this country, but also to
a "person" who may not be a citizen of the country.
Let us now consider the
meaning of the word "LIFE" interpreted by this Court from time to
time. In Kharak Singh v. State of U.P. it was held that the term
"life" indicates something more than mere animal existence. (See also
State of Maharashtra v. Chandrabhan Tale.) The inhibitions contained in Article
21 against its deprivation extend even to those faculties by which life is
enjoyed. In Bandhua Mukti Morcha v. Union of India it was held that the right
to life under Article 21 means the right to live with dignity, free from exploitation.
(See also Maneka Gandhi v. Union of India and Board of Trustees of the Port of
Bombay v. Dilipkumar Raghavendranath Nadkarni.) On this principle, even those who
are not citizens of this country and come here merely as tourists or in any other
capacity will be entitled to the protection of their lives in accordance with
the constitutional provisions.
They also have a right
to "life" in this country. Thus, they also have the right to live, so
long as they are here, with human dignity. Just as the State is under an
obligation to protect the life of every citizen in this country, so also the
State is under an obligation to protect the life of the persons who are not
citizens." The question whether the Central Government can be held
vicariously liable for the offence of rape committed by the employees of the
Railways was answered in negative by relying upon the judgments in State of
Rajasthan v. Vidhyawati AIR 1962 SC 933, State of Gujarat v. Memon Mahomed Haji
Hasam AIR 1967 SC 1885, Basavva Kom Dyamangouda Patil v. State of Mysore (1977)
4 SCC 358, N. Nagendra Rao and 40Company v. State of A.P. (1994) 6 SCC 205 and
State of Maharasthra v. Kanchanmala Vijaysing Shirke (1995) 5 SCC 659.
28.
In
M.S. Grewal v. Deep Chand Sood (2001) 8 SCC 151, this Court examined the question
whether the High Court of Himachal Pradesh was justified in entertaining the
writ petition filed by the parents of 14 children, who died due to drowning in
a river when they were on picnic organised by the school authorities. While
rejecting the objection to the maintainability of the writ petition, the Court
referred to Rudul Sah v. State of Bihar (supra), Nilabati Behera v. State of
Orissa (supra) and D.K. Basu v. State of W.B. (1997) 1 SCC 416 and observed: "Next
is the issue "maintainability of the writ petition" before the High Court
under Article 226 of the Constitution. The appellants though initially very strongly
contended that while the negligence aspect has been dealt with under penal law already,
the claim for compensation cannot but be left to be adjudicated by the civil law
and thus the civil court's jurisdiction ought to have been invoked rather than
by way of a writ petition under Article 226 of the Constitution.
This plea of non-maintainability
of the writ petition though advanced at the initial stage of the submissions
but subsequently the same was not pressed and as such we need not detain ourselves
on that score, excepting however recording that the law courts exist for the society
and they have an obligation to meet the social aspirations of citizens since
law courts must also respond to the needs of the people. In this context,
reference may be made to two decisions of this Court: the first in line is the
decision in Nilabati Behera v. State of Orissa wherein this Court relying upon
the decision in Rudul Sah (Rudul Sah v. State of Bihar) 41 decried the
illegality and impropriety in awarding compensation in a proceeding in which the
court's power under Articles 32 and 226 of the Constitution stands invoked and
thus observed that it was a clear case for award of compensation to the petitioner
for custodial death of her son.
It is undoubtedly
true, however, that in the present context, there is no infringement of the State's
obligation, unless of course the State can also be termed to be a joint
tortfeasor, but since the case of the parties stands restricted and without imparting
any liability on the State, we do not deem it expedient to deal with the issue
any further except noting the two decisions of this Court as above and without
expression of any opinion in regard thereto." On the question of quantum
of damages, the Court made the following observations: "Be it placed on
record that in assessing damages, all relevant materials should and ought
always to be placed before the court so as to enable the court to come to a
conclusion in the matter of affectation of pecuniary benefit by reason of the
unfortunate death.
Though mathematical
nicety is not required but a rough and ready estimate can be had from the records
claiming damages since award of damages cannot be had without any material evidence:
whereas one party is to be compensated, the other party is to compensate and as
such there must always be some materials available therefor. It is not a fanciful
item of compensation but it is on legitimate expectation of loss of pecuniary benefits.
In Grand Trunk Rly. Co. of Canada v. Jennings this well-accepted principle
stands reiterated as below: "In assessing the damages, all circumstances
which may be legitimately pleaded in diminution of the damages must be
considered.
It is not a mere
guesswork neither is it the resultant effect of a compassionate attitude."
As noticed above, a large number of decisions were placed before this Court as regards
the quantum of compensation varying between 50,000 to one lakh in regard to the
unfortunate 42 deaths of the young children. We do deem it fit to record that while
judicial precedents undoubtedly have some relevance as regards the principles of
law, but the quantum of assessment stands dependent on the fact situation of
the matter before the court, than judicial precedents. As regards the quantum, no
decision as such can be taken to be of binding precedent as such, since each
case has to be dealt with on its own peculiar facts and thus compensation is
also to be assessed on the basis thereof, though however, the same can act as a
guide: placement in the society, financial status differs from person to person
and as such assessment would also differ. The whole issue is to be judged on the
basis of the fact situation of the matter concerned though however, not on
mathematical nicety."
29.
Reference
also deserves to be made to MCD v. Assn. of Victims of Uphaar Tragedy and others
(2005) 9 SCC 586 whereby this Court entertained the appeal filed against the
order passed by the Delhi High Court for payment of compensation to the
families of those who died in Uphaar tragedy and directed the appellants to
deposit Rs.3,01,40,000/- with a further direction that 50% of the amount shall be
available for distribution to the claimants.
30.
In
view of the law laid down in the afore-mentioned judgments, the appellant's
challenge to the interim directions given by the High Court for payment of compensation
to the families of the workers deserves to be rejected. However, that is not
the end of the matter. We feel that the High Court should have taken cue from the
judgment in Chairman, Railway Board v. Chandrima Das (supra) and awarded
compensation which could be treated as reasonable.
Though, it is not possible
to draw any parallel between the trauma suffered by a victim of rape and the
family of a person who dies due to the negligence of others, but the High Court
could have taken note of the fact that this Court had approved the award of
compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in
the cost of living and done well to award compensation of atleast Rs.5 lacs to
the families of those who died due to negligence of the public authority like
the appellant who did not take effective measures for ensuring safety of the
sewage workers. We may have remitted the case to the High Court for passing appropriate
order for payment of enhanced compensation but keeping in view the fact that
further delay would add to the miseries of the family of the victim, we deem it
proper to exercise power under Article 142 of the Constitution and direct the
appellant to pay a sum of Rs.3.29 lakhs to the family of the victim through Delhi
High Court State Legal Services Committee. This would be in addition to Rs.1.71
lakhs already paid by the contractor.
31.
In
the result, the appeal is dismissed subject to the aforesaid direction
regarding the amount of compensation to be paid by the appellant. It is
needless to say that the appellant shall be entitled to recover the additional 44amount
from the contractor. Respondent No.1 shall also be entitled to file appropriate
application before the High Court for payment of enhanced compensation to the
families of other victims and we have no doubt that the High Court will
entertain such request.
32.
With
a view to obviate further delay in implementation of the directions contained in
the first order passed by the High Court on 20.8.2008, we direct the appellant
to ensure compliance of clauses (a), (b), (d), (e), (f), (g), (i), (k), (m) and
(n) within a period of two months from today and submit a report to the High
Court. The appellant shall also ensure that these directions are complied with
by the contractors engaged by it for execution of work relating to laying and
maintenance of sewer system within the area of its jurisdiction. A report to
this effect be also submitted to the High Court within two months. Additionally,
we direct that in future the appellant shall ensure that the directions already
given by the High Court and which may be given hereafter are made part of all agreements
which may be executed with contractors/private enterprises for doing work
relating to sewage system.
33.
The
directions contained in the preceding paragraph do not imply that the appellant
and other agencies/instrumentalities of the State like New Delhi Municipal Council,
Municipal Corporation of Delhi, Delhi State 45Industrial Development Corporation
are not required to comply with the directions given by the High Court. Rather,
they too shall have to submit similar reports.
34.
As
regards the other clauses of paragraph 9 of order dated 20.8.2008, the High
Court may give necessary directions so that they are complied with and
implemented by the State and its agencies/instrumentalities without any delay.
35.
The
case be listed before the Division Bench of the High Court in the third week of
September, 2011 for further orders.
..........................................J.
[G.S. Singhvi]
..........................................J.
[Asok Kumar Ganguly]
New
Delhi
July
12, 2011.
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