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Wednesday, July 13, 2016

for grant of compensation or financial assistance to victims.= The Railway Over Bridge was not tall enough and the gap between the roof of the coach and the bottom of the over bridge was hardly three feet. The train was speeding fast and by the time the young men on roof top saw the approaching bridge it was too late. At least 14 young men were crushed there and then with 20 others seriously injured having been hit by the Over Bridge and fallen from roof top. At this time, some high tension wire broke and fell over the train as a result of which some received electric shocks. Despite this mishap, the train continued running for a while and it finally stopped some 3 kms from the place of incident.

                                                                  REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

     Writ Petition (Civil) No.68 of 2011


Anil Kumar Gupta                                             ....Petitioner
  Versus
Union of India & Ors.                              ….Respondents

                               J U D G M E N T

Uday U. Lalit, J.


1.    This petition under Article 32 of the Constitution of India  has  been
filed  in  public  interest  by  an  Advocate  practising  in   this   Court
highlighting an incident that occurred  on  01.02.  2011  near  Mohammadabad
Crossing  in  Shahjahanpur  Division  in  State  of  Uttar   Pradesh.    The
petitioner has prayed for directions, inter alia, for  finding  out  reasons
for loss of lives, for assessment of damage to property  and  for  grant  of
compensation or financial assistance to victims.  He  has  also  prayed  for
directions for laying down guidelines for necessary precautions and care  to
be taken so that such tragedy is not repeated again.

2.    The incident highlighted in the petition was:-


a.    In a recruitment drive aimed at filling  up  416  posts  of  Class  IV
employees,  Indo  Tibetan  Border  Police  (ITBP,  for  short)  had   called
candidates from eleven States at its  headquarter  located  at  Bareilly,  a
small town in Uttar Pradesh on 1.2.2011. The aspiring  candidates  for  said
posts were required to remain present in person and submit their  forms  for
registration.  In response to  said  recruitment  drive,  aspirants  started
arriving at Bareilly  and  by  morning  of  1.02.2011  more  than  two  lakh
aspirants had arrived. The gathering was swelling and increasing in  number.
The officers of ITBP found themselves incapable of  managing  the  situation
because of such large gathering and as such  they  suspended  and  postponed
the drive.
b.    The consequent resentment  and  shouting  of  slogans  in  protest  by
aspirants  provoked the higher officers of  ITBP  to  use  lathi  charge  to
push the crowd. This resulted in a chaotic  situation  with  some  aspirants
resorting to violence. The armed police then had to use tear gas  shells  to
disperse the crowd. Massive disturbance and lawlessness prevailed  all  over
the town causing law and order problem. Some buses  were  burnt  and  damage
was caused  to  public  and  private  property.  In  the  backdrop  of  such
situation  the  crowd  of  aspiring  candidates  rushed  to  rail  and  road
terminals to return back to their homes.
c.    Because of congestion and crowd in large members,  the  train  coaches
were all jam packed.  Hundreds  of  young  men  then  climbed  atop  Himgiri
Express that was on its way to eastern  U.P.  and  Bihar  from  where  large
number of aspirants had come.
d.    When Himgiri Express left Shahjahanpur Railway Station  with  hundreds
of men on roof top and headed towards Rosa town, an accident took  place  at
Hathaurda Railway Over Bridge near Mohammadabad crossing  in  Shahajahanpur.
The Railway Over Bridge was not tall enough and the gap between the roof  of
the coach and the bottom of the over  bridge  was  hardly  three  feet.  The
train was speeding fast and by the time the young men on roof  top  saw  the
approaching bridge it was too late. At  least  14  young  men  were  crushed
there and then with 20 others seriously injured having been hit by the  Over
Bridge and fallen from roof top. At this time, some high tension wire  broke
and fell over the train as a result of which some received electric  shocks.
Despite this mishap, the train continued running for a while and it  finally
stopped some 3 kms from the place of incident.
e.    The roof top of coaches  was  full  of  blood.  The  dead  bodies  and
injured were brought down.  People rushed back to find  out  those  who  had
fallen from the roof top.  The train driver, guard and other  employees  had
run away from the spot.
f.    The incident provoked those young aspirants, some of whom torched  two
coaches of the train. What  followed  thereafter  was  total  chaos  putting
tremendous pressure on the Administration in carrying out  relief  work  and
taking injured to Hospitals for medical attention.

3.    With the aforesaid assertions this petition was filed on 7.2.2011.  In
the meantime Railway Administration had ordered  an  enquiry.    By  interim
order passed by this Court the  respondents  were  directed  to  submit  the
Report pursuant  to  enquiry  instituted  by  them.   Consequently,  Enquiry
Report dated 09.09.2011 by Mr. Raj Kumar  Kardam,  Commissioner  of  Railway
Safety, Northern Circle,  New  Delhi  was  placed  on  record.   The  record
indicates  that  this  Report  was  preceded  by  Prelimnary  Report   dated
23.02.2011.  The  relevant  portions  of  Chapter  7  of  the  Report  dated
09.09.2011 under heading “Discussion” are as under:-

“Time of the accident

……As per the statement of loco pilot, assistant  loco  pilot  and  guard  of
train no. 12332 Dn Jammu  Tawi-Howrah  Himgiri  Express,  the  train  passed
Shahjahanpur station at 16:23 hrs. The other records  also  show  that  this
train passed Shahjahanpur station at 16:23 hrs a few  passengers  travelling
on the roofs of the coaches of this train  got  struck  against  the  Public
Foot Over Bridge located at LKO (East) end in  Shahjahanpur  Yard  near  the
end of the platform.

7.2 Speed of the train at the time of accident:
Diesel loco No. 11133 WDM-3D LKO of train no.  12332  Dn  Jammu  Tawi-Howrah
Himgiri Express was  provided  with  Medha  Speed  Time  Distance  Recording
System Type MRT 918. Analysis of speedometer recording of his loco was  made
CRSE/CHg/NR in his technical note on the  accident.  Copy  of  the  same  is
enclosed as Annexure-X.  As per the speed  and  time  observations  analysis
done by CRSE/Chg./NR,  the speed of the train no. 12332 Dn at  the  time  of
passing under the public foot over the bridge located at LKO (East)  end  in
Shahjahanpur Yard was assessed as 75kmph. A  few  passengers  travelling  on
the roofs of the coaches of this train got struck against  the  Public  Foot
Over Bridge located at LKO (East) end in Shahjahanpur Yard near the  end  of
the platform.

From the above, the speed of the train no. 12332 Dn at the time of  accident
is thus considered as 75 kmph.

7.3 Cause of the Accident:

       From the particulars of injuries suffered by the roof  travelers,  it
was observed that most of the persons injured had  been  hit  in  the  upper
portion of their heads. It was also evident that  injuries  were  caused  to
passengers, who were traveling and  sitting/standing  on  the  roof  of  the
coaches. An incident of hitting of an obstruction resulting in such type  of
injuries to the roof  riders  could  be  caused,  in  all  probabilities  by
striking against the existing foot over bridge, road over bridge etc.
            ………………………………………

Evidence available reveals that before starting  the  trains,  all  possible
efforts were made by the railway and civil officials to get the roof  riders
come down from roof.  Continuous  announcements  were  made  through  public
address system and loud hailers. ADRM, Sr.  DSC/RPF,  SP/Railway  and  civil
authorities were continuously monitoring the  situation.  However  the  roof
riders refused to come down from the roof top  of  the  coaches.  They  were
also throwing stones on passengers and officials. Large number of  “JYREENS”
had also gathered at railway  station  and  approached  ADRM  for  help  and
protection. In this situation, possibilities of taking incidence a  turn  to
communal violence  were  very  much  there,  as  this  area  is  a  communal
sensitive area and  has  passed  through  communal  violence  very  recently
(March 2010 and August 2010). In view of above,  the  situation  had  become
highly volatile and had the decision to move the  train  was  not  taken  at
that time by the railway; the violent crowd would have damaged  the  station
property and trains on the platforms and could  have  resulted  in  stampede
and unmanageable situation at the railway  station.  DM/BE,  IG/BE,  DIG/BE,
SP/BE and other Civil and Police  officials  were  themselves  available  at
Bareilly station to watch and control the situation. They also insisted  for
the movement of the trains as quickly as possible and  in  whatever  manner.
The idea was to disperse the crowd as early as possible. The  situation  was
even being watched at Rampur station by DM/Rampur  and  SP/Rampur  who  were
themselves available at Rampur station. At Rosa station also  ADM,  ASP,  Co
were present themselves to control the situation.

                           ……………………………………………………………

      In the above circumstances, when 2332  Dn  Jammu  Tawi-Howrah  Himgiri
Exp. Train running at a speed of 75kmph approached the  Shahjahanpur  public
foot  over  bridge  at  km  1237.255  km  with  passengers  travelling   and
sitting/standing on the roof of the  coaches,  few  passengers  sitting  and
traveling on the roofs of the coaches got struck  against  the  Public  Foot
Over Bridge situated at the  Lucknow  (East)  end  of  Shahjahanpur  railway
station.

      7.5.2 There was an infringement of 55 mm in the vertical clearance  at
the Public Foot  Over  Bridge,  Shahjahapur  as  per  the  Indian  Railways,
Schedule of Dimensions, Revised, 2004. CE/P&D/NR prepared a  technical  note
in this connection and a copy of  the  same  is  enclosed  as  Annexure-XIV.
Details have been given in his letter  No.  1-W/0/Accident/MB/Pt.  IV  dated
04.05.2011, a copy of which is enclosed  as  Annexure-XV.  Northern  Railway
Administration has given  his  comments  on  item  No.  2  of  my  immediate
recommendations  of  Preliminary   Report    vide    CSO/NR’s   letter   No.
10T/Spl./Occurrence/MB/2011  dated 20.06.2011 (Annexure XXVIII) and  as  per
this railway  has  to  take  further  action  in  removing/regularizing  the
infringements.

      Railway must ensure that there are no  infringements  to  any  of  the
dimensions as per Indian Railways, Schedule  of  Dimensions,  Revised,  2004
for any of the overhead fixed structure like FOBs,  ROBs  etc.  For  this  a
special  drive  should   be   launched   by   Railway   Administration   for
removal/regularization of the infringements.

      7.5.3 On scrutiny of the  Steel  Structure  Register  of  IOW/SPN  and
Bridge Inspection Register for  ROB/FOBs  of  ADEN/SPN,  it  was  seen  that
though the inspections were being carried out  regularly  but  the  vertical
clearances from the rail level to this fixed structures like FOB, ROBs  were
not being measured during the inspections as this have not  been  prescribed
in the Proforma available for recording the  various  parameters.  Clearance
is an important item as these may get changed due to track renewals,  change
in ballast cushion or any other reason resulting into the rail  level  being
raised and may infringe the Schedule of Dimensions.  Therefore  it  is  very
much essential that proper record and upkeep of such an  important  item  is
kept.
Railway Administration should issue a standard Proforma for Steel  Structure
Register and Bridge Inspection Register to be maintained for the  inspection
of ROB/FOBs which should also include the item of measurements to  be  taken
for clearances.


      7.6 Role of Railway officials and others:

No railway officials were found to be responsible for the accident  as  such
this aspect is not discussed in the Report.
The primary responsibility rests with those persons  who  travelled  on  the
roofs of coaches in violation of Section 156 of  the  Indian  Railways  Act,
1989.”


In Chapter 8 titled “Conclusions” it was stated in the Report  as under:-
“8.1 Cause of the accident:
       8.1.1  Having  carefully  considered  the   factual,   material   and
circumstantial evidences available at  my  disposal,  I  have  come  to  the
conclusion that unusual occurrence to a few  passengers  travelling  on  the
roofs of the coaches  of  train  no.  12332  Dn  Jammu  Tawi-Howrah  Himgiri
Express at km 1237.255 in Shahjahanpur Yard between  Shahjahanpur  and  Rosa
railway stations  on  Moradabad-Shahjahanpur-Lucknow,  Broad  Gauge,  Double
Line, non-electrified Section of Moradabad Division of Northern  Railway  on
1.02.2011 occurred due to a few passengers sitting  and  travelling  on  the
roof of the coaches got struck against the Public Foot Over Bridge  situated
at the Lucknow (East) end of Shahjahanpur railway station.

      The accident is classified under the heading of  “FAILURE  OF  PERSONS
OTHER THAN RAILWAY STAFF”.

  In Chapter 9 titled  “Remarks  and  Recommendations”  Paragraphs  9.2  and
9.3 of the Report were as under:-
“9.2   Railway must ensure that there are no infringements  to  any  of  the
dimensions as per Indian Railways, Schedule  of  Dimensions,  Revised,  2004
for any of the overhead fixed structures like FOBs,  ROBs,  etc. For this  a
special  drive  should   be   launched   by   Railway   Administration   for
removal/regularization of the infringements.

9.3    Railway Administration should issue a  standard  Proforma  for  steel
structure register and bridge inspection register to be maintained  for  the
inspection of ROB/FOBs which should also include the  item  of  measurements
to be taken for clearances.”


6.    After hearing the counsel and considering  the  aforesaid  Report  and
other documents on record, while  reserving  the  matter  for  orders,  this
Court passed following order on 17.2.2016:-
“Arguments heard.
Judgment reserved.
Learned counsel for  the  respondents-Union  of  India  and  Railways  shall
within three weeks from today file an additional affidavit  along  with  the
relevant documents indicating the following:

Names and particulars of the  persons  who  died  or  were  injured  in  the
incident that took place on 1st February, 2011 involving Train No.12332  Dn.
Jammu Tawi-Howarh Himgiri Express in Shahjahanpur Yard.

Whether any ex-gratia payment has been made to the  next  of  kin  to  those
dead or to the persons who sustained injury,  if  so,  the  amount  paid  to
them.

The steps that have been taken by the Railways  to  remove  infringement  of
Foot Over-Bridges (FOB) in Lucknow Division as set out in Annexure  XXVIII/2
to Report dated 9th September, 2011  submitted  by  Mr.  Raj  Kumar  Kardam,
Commissioner of Railway Safety, in regard to the incident mentioned above.

Whether the Railways are aware that there are similar  other  infringements,
FOB or ROB, in regard to the other railway divisions,  if  so,  whether  any
steps have been taken to identify such  infringements  and  to  rectify  the
same, in particular, whether the Railways have taken any steps in regard  to
Recommendation 9.2, made by  the  Commissioner  of  Railway  Safety  in  the
Report mentioned above. If no steps have been  taken  the  reasons  for  the
omission and the time-frame within which the Railways shall do the needful.

The steps that have been taken or proposed to be taken by the Government  to
avoid situations like the one referred to in the writ petition  where  lakhs
of people descended simultaneously in the town  of  Bareilly  in  connection
with  the  proposed   recruitment   for   I.T.B.P.,   in   the   matter   of
streamlining/rationalising the method  of  recruitments  and  procedures  to
avoid the  unmanageably  large  crowds  who  came  to  participate  in  such
recruitment rallies.

Circulars/orders/notifications, if any, issued to regulate such  recruitment
process, rallies and crowds that assemble in connection with the same  shall
also be placed on record.

      Needful be done within a period of three weeks.”


7.    In  compliance of the aforesaid Order dated  17.2.2016,  an  affidavit
has been filed by J.N.Meena,  Div.  Commercial  Manager,  Northern  Railway,
Moradabad. With regard to directions  1  to  4  above-named.  The  affidavit
states that following 20 persons  died  as  a  result  of  the  incident  in
question:-

“1. Deepak s/o Mohit, Age 22 years, R/o  Village.  Mohva  Bujurg  PS  Choori
Choora Distt. Gorakhpur.
2. Ram Asrey S/o Masaipal, Age 20 years, R/o Khemapur Jansa, Varanasi.
3.  Anil Kumar, S/o  Sh.  Ameer  Chandr  Bathora,  Age  25  years,  R/o  Ps.
Dhanapur Chandauli.
4.  Rahul Kumar, S/o Vedehi Saran,  Age  25  years,  R/o  Hiroosa  Ps  Rohan
Jhansi.
5. Sarvoday Kumar, S/o UdayKumar Singh, Age 20 years, R/o Village  Bansekhan
Tola Ps Aurangabad.
6. Shayam Sundar Yadav, S/o Bhola  Nath  Yadav,  Age  26years,  R/o  Village
Yuvrajpur PS. Shoej, Gajipur.
7. Sukh Ram, Age 30 years, R/o Unknown
8. Arun Kumar Pandey, S/o Ram Chandra Pandey,  Age  20  years,  R/o  Village
Bhanhi Pandeypurva, P/S Munshiganj Garuriganj Sultanpur.
9.  Sunil Kumar Yadav, S/o Ved Prakash Yadev, Age 22 years, R/o  Laxhmanpur,
P/S Choori Choora Gorakhpur.
10. Devendra, S/o Bhasol Singh, age 20 years, R/o Vill Lahara, P.S.  Kotwali
Dehat, Distt. Aita.
11. Ram Pravesh, S/o Ramaserey, R/o Mahuava Ps. Choori Choora, Gorakhpur.
12. Ajay Kumar, S/o Sukhraj, R/o Vill Seepur Rakva, Post  Raipur  Rakwa  P/S
Choori Choora Gorakhpur.
13. Ravi Kher, S/o Prakash Kher, R/o Singar P.S Gursaray Jhansh
14.  Shailesh,  S/o  Mithailal,  R/o  Maupur  Chota  Tola,   Choori   Choora
Gorakhpur.
15. Purushottam, S/o Gayalal Yadav, R/o Maupur Chota Tola P.s Choori  Choora
Gorakhpur.
16.  Angad Avdhesh Chauhan, S/o Jiut Chauhan  R/o  Maupur  Chota  Tola,  P.S
Choori Choora Gorakhpur.
17.  Rajiv Jaiswal, S/o G.N. Jaisural,  R/o  Devmoov  PS  Gauribaja,  Distt.
Devariya.
18.  Satish Kumar, S/o Pawan Kumar, Age 24 years, R/o Village  Mahuani,  P/S
Avtar Nagar Chhapra Bihar.
19.  Soun Kumar Gupta, S/o Bayag Bapu Prasad,  Age  21  years,  R/o  Village
Mahuani, P/S Avtar Nagar Distt. Chhapra Bihar.
20.  Saleam  Ansari,  S/o  Barkhu  Ansari,  R/o  Village  Aurai  Kalan,  P/S
Bheampra, Distt. Baliya.”


8.    The affidavit further stated that no ex-gratia  payment  was  made  to
any injured or relative of any person who died in the incident.  As  regards
direction No.3 regarding Lucknow Division it was stated:-
      “Steps taken by Railways to remove infringement of  Foot  Over  Bridge
in Lucknow Division. In this respect it is submitted that  the  action  plan
for the removal of infringement of FOBs in  Lucknow  Division  submitted  by
Sr. DEV/C Northern Railways Lucknow vide  letter  no.  DRM/LKO/Engg/  FOB/15
dated 29.02.2016 is annexed with this affidavit.”

A tabular chart giving details  regarding  required  clearances  and  actual
available clearances as well as the nature and  extent  of  infringement  in
respect of  17  cases  from  Lucknow  Division  was  also  appended  to  the
affidavit.

9.   With respect to direction No. 4 what has  been  placed  on  record  are
communications dated 17.03.2011 and 28.5.2012 which were  issued  after  the
Preliminary  Report  dated  23.02.2011   and  the   aforesaid  Report  dated
09.09.2011 respectively.  These communications  quoted  relevant  paragraphs
of the respective Reports and stated that a  special  drive  be  undertaken.
We also have  on  record  a  letter  dated  04.03.2016  from  Railway  Board
addressed to Chief Claim Officer,  Headquarter  Office,  New  Delhi,  saying
that a special  drive  was  launched  vide  letter  dated  17.03.2011.  What
happened as a result of such special drive has however not  been  placed  on
record.  Nothing has been placed on  record  if  similar  infringements  are
found present in Divisions other  than  Lucknow  Division  and  if  so  what
safety measures are undertaken or are to be undertaken and what is the  road
map for removing such infringements.  It appears that despite Paragraph  9.2
of  the  Report  dated  09.09.2011  no  assessment  of  any  kind  has  been
undertaken  in  Divisions  other  than  Lucknow  Division  and  consequently
nothing has been placed on record.

10.    An  affidavit  has  also  been  filed  by  Harendra   Kumar,   Senior
Administrative  Officer,  Directorate  General,  Indo  Tibet  Border  Police
Force, Ministry of Home Affairs, Government of India dealing with  Direction
Nos.5 and 6.  In response to Direction No.5 the affidavit states as under:

“Reply to Direction No.5 - It is  respectfully  submitted  that  after  this
incident  the  respondent/ITBP  has   not   conducted   open   rally   based
recruitments.  The candidates are now being called for  physical  efficiency
test and physical standard test by post only  under  the  supervision  of  a
Nodal Officer in a limited  and  controlled  manner.   State  administrative
authorities at district  and  higher  levels  are  being  informed  well  in
advance regarding, the time venue, date and timing of recruitments  and  are
requested to ensure adequate arrangements to maintain law and order  outside
the ITBP recruitment venues.  The Presiding Officers of  recruitment  boards
and Nodal  Officer  have  been  directed  to  maintain  close  liaison  with
district  administration.   A  provision  has  been  made  in  the  Standard
Operating Procedure of the recruitment that not  more  than  600  candidates
will be called at one recruitment center at a time for recruitment  test  of
physical efficiency test and physical standard test etc.   In  the  case  of
Constable (Tradesmen) recruitment, 600 candidates are being  called  in  two
days cycle at each centre.”

11.   As regards Direction  No.6,  the  Affidavit  goes  on  to  state  that
Standing Order No.1 of 2011 dated 14.02.2011  and  Standing  Order  No.5  of
2013 dated 26.02.2013 were issued ensuring that only  600  candidates  would
hereafter be called in one cycle on a particular day.  To similar effect  is
the Standing Order dated 26.02.2013.  However these Standing Orders  pertain
to ITBP alone and it is  not  clear  whether  similar  Standing  Orders  are
issued and are in operation as regards other Central Police Organisations.

12.   The Report dated 09.09.2011 indicates that requests were made  by  the
Railway and Civil Officials to get the roof riders come down from  the  roof
and announcements were made in that behalf.  Though the roof riders  refused
to come down, in view of the volatile situation, a  decision  was  taken  to
move the train out of Bareilly.  According to  the  Report,  the  civil  and
police officials insisted for the  movement  of  the  train  as  quickly  as
possible with an idea to disperse the crowd.   One  may  accept  this  as  a
reasonable and proper exercise as the crowd had to be  dispersed  which  had
congregated in  Bareilly.   However,  this  does  not  explain  and  justify
further movement of the train for more than 60 KMs  from  Bareilly  Station.
What is more worrisome is that the fact that train was running  at  a  speed
of 75 kilometers per hour.

13.    Those who were in charge of Railway Administration in  the  concerned
Divisions ought to have taken  sufficient  precaution.   The  Administration
can certainly be taken to be aware of the fact that  the  Foot-Over  Bridges
or any structures on the way could possibly be a hindrance  and  could  have
caused  such  incident  with  people  in  large  number  on  roof  top.  The
Administration alone would be in a position to know about the  existence  of
infringements with regard to certain structures and what could  be  possible
implications if the train were to run at a great speed with large number  of
people on roof top.  Reasonable care would naturally be  expected  of  those
incharge of  the  Administration.   We  therefore  do  not  agree  with  the
conclusion in the Report that Railway Administration was not responsible.

14.  In Chairman, Railway Board v. Chandrima Das[1], while  considering  the
liability of Railways when some of the  employees  had  taken  a  lady  from
Bangladesh to Rail Yatri Niwas and  subjected her to rape, it  was  observed
by this Court,
“42. Running of the Railways is  a  commercial  activity.  Establishing  the
Yatri Niwas at various railway stations  to  provide  lodging  and  boarding
facilities to passengers on payment of charges is a part of  the  commercial
activity of the Union of India and this activity cannot be equated with  the
exercise of sovereign power. The employees of the Union  of  India  who  are
deputed to run the Railways and to manage the establishment,  including  the
railway stations and the  Yatri  Niwas,  are  essential  components  of  the
government machinery which carries on the commercial  activity.  If  any  of
such employees commits an act of tort, the Union Government, of  which  they
are  the  employees,  can,  subject  to  other  legal   requirements   being
satisfied, be held vicariously liable in damages to the  person  wronged  by
those employees.”

15.   In M.S. Grewal  v.  Deep  Chand  Sood[2]  this  Court  considered  the
concept, “Duty  of  care”  in  a  fact  situation  where  teachers  who  had
accompanied school children for a picnic on the bank of  a  river  when  the
mishap happened and stated as under:-
“16. Duty of care varies from situation to situation — whereas it  would  be
the duty of the teacher to supervise the children in the playground but  the
supervision, as the children leave the school, may not be  required  in  the
same degree as is in the playfield. While it is true that  if  the  students
are taken to another school building for participation in certain games,  it
is sufficient exercise of diligence to know that the premises are  otherwise
safe and secure  but  undoubtedly  if  the  students  are  taken  out  to  a
playground near a river for fun and a swim,  the  degree  of  care  required
stands at a much higher degree and no deviation therefrom can be had on  any
count whatsoever. Mere satisfaction that the river is otherwise safe  for  a
swim by reason of popular sayings will not be a sufficient compliance. As  a
matter of fact the degree of care required to be taken,  especially  against
the minor children, stands at a much  higher  level  than  adults:  children
need much stricter care.

                                  ……………………

“23. Turning attention, however, on to the  issue  of  vicarious  liability,
one redeeming feature that ought to be noticed at this juncture is  that  to
escort the children was the duty assigned to the two teachers and till  such
time thus the period of escorting stands over, one cannot but ascribe it  to
be in the course of employment — the two teachers were  assigned  to  escort
the students: the reason obviously being — the children should otherwise  be
safe and secure and it is the act of utter negligence of  the  two  teachers
which has resulted in this unfortunate tragedy and thus it is no  gainsaying
that the teachers were on their own frolic and the School had done all  that
was possible to be done in the matter — safety  of  the  children  obviously
was of prime concern so far as the  school  authorities  are  concerned  and
till such time the children returned to school, safe and  secure  after  the
picnic,  the  course  of  employment,  in  our  view  continued   and   thus
resultantly, the liability of the School.


16.   In Chandrima Das (supra) compensation of Rs.10 lakhs as awared by  the
High Court was upheld while in M.S. Grewal (supra) this Court sustained  the
order awarding compensation of Rs.5 lakhs in case of death.

17.    In the backdrop of the aforesaid precedents, in our view, it must  be
expected of the persons concerned to be aware  of  the  inherent  danger  in
allowing the train to run with such speed having  large  number  of  persons
travelling on roof top.  Though the people who travelled on  roof  top  also
contributed to the mishap, the Railway Administration, in our view, was  not
free from blame.  Concluding so, we direct that the next  of  kin  of  those
who died in the incident and those  who  sustained  injuries  must  be  duly
compensated by the Railway Administration.  Those who  died  were  obviously
very young in age for they had come to compete for  the  jobs.   Taking  all
these factors in consideration we direct Railway Administration to pay:
(a) Compensation of Rs.5 lakhs to the next of kin in case of every death;
(b) Compensation of Rs.1.5 lakhs  in  every  case  of  permanent  disability
suffered by anyone in the incident;
(c) Compensation of Rs.75,000/- in case of  any  grievous  injury   suffered
by anyone; and
(d) Compensation of  Rs.25,000/-  in  case  of  simple  injury  suffered  by
anyone.

18.   It is distressing  that despite Paragraph No.9.2 of the  Report,   the
Railway Administration has  not  considered  collecting  data  in  Divisions
other than Lucknow Division whether  there  are  any  infringements  as  per
Schedule  of   Dimensions   stated   in    said    Paragraph    9.2.     The
Administration  must   take  every   care  so  that  such   tragedy  is  not
repeated.  The first step in that behalf is to have  an  assessment  if  any
such infringements exist and then  to  create  a  road-map  to  remove  such
infringements.   We,  therefore,  direct  the  Railway   Administration   to
implement  directions  stated  in  Paragraph  No.9.2  of  the  Report  dated
09.09.2011.  The Committee headed by a senior officer  and  assisted  by  at
least three persons from the administration having technical  knowledge  and
expertise be constituted to have an assessment  of  all  such  infringements
and to chalk out an  action  plan  to  remove  such  infringements.   It  is
possible that in some cases road over bridges may have been built  by  State
Governments, Municipal Administrations or  such  bodies.   Nonetheless,  the
action plan must contemplate ways and means to deal  with  and  remove  such
infringements.  We direct that the Committee  as  aforesaid  be  constituted
within a period of four weeks from the date of  this  order.   We  hope  and
trust that the Committee shall take appropriate steps in collecting data  as
stated  above  and  creating  road  map  or  action  plan  to  remove   such
infringements, in the shortest possible time.

19     As  regards  the  infringements  pointed  in  Lucknow  Division,  the
aforesaid Committee shall take  immediate  steps.   If  the  clearances  are
specified  and  stipulated  in  Schedule  of  Dimensions  Rules,  2004   the
Committee may do well  to  ensure  strict  compliance.   Every  dispensation
sought, may be considered threadbare and be granted only as a last resort.

20.   We direct the Committee to complete the work as early as  possible  so
that all infringements could be removed in shortest possible  time  and,  in
any case, not later than  two  years.   We  direct  the  Committee  to  file
periodic status Reports every six months in this Court.

21.   We also direct that copies of this Order be sent by  the  Registry  to
the Minister, Railways and Secretary, Railways who are requested  to  ensure
compliance of the directions as aforesaid.

22.     Further, all Central Police Organisations must issue  guidelines  or
Standing Order akin to Standing Orders Nos. 1 of 2011 and 5 of 2013 of  ITBP
 ensuring that only 600 candidates or such number  of  candidates  as  could
easily be managed or taken care of  be called in one cycle on  a  particular
day.  For compliance in that behalf, a copy of this Order  be  sent  by  the
Registry to the Secretary, Ministry of Home Affairs.

23.   With these directions, the petition stands disposed of.



                   …..…………………………..CJI
      (T.S. Thakur)



...………………………………J.
                                        (Uday Umesh Lalit)


New Delhi,
July 05, 2016


-----------------------
[1]

      [2] (2000) 2 SCC 465
[3]
      [4] (2001) 8 SCC 151

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