Delhi Jal Board vs National Campaign Etc.& Ors

(Arising out of Special Leave Petition (Civil) No. 12345 of 2009)

Delhi Jal Board ......Appellant

Versus

National Campaign for Dignity and Rights

of Sewerage and Allied Workers & others ......Respondents

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

2

deceased 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

3

employed 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:

4

"4. 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 3

Place

July Okhla 1

October Uttamnagar 4

5

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

7

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.

8

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,

9

ailment 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.

(h) 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. 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

10

service 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),

12

two 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. 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

13

by 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.

14

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 the

concerned 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 own

to 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 the

sewage 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 workers

namely, 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

17

the 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

18

directions 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

19

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.

20

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

21

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

22

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

23

relief 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.

24

They 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

28

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

29

and 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.

30

Association 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."

31

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

33

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

34

SCC 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

35

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

36

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.

37

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

38

Bench 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

40

Company 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

43

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

44

amount 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

45

Industrial 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.