CONTRACT LABOURS = 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

                                                                            REPORTABLE




                      IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION

                                               

                        CIVIL APPEAL NO.5322  OF 2011

      (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


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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


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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:


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"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


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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:


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"...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


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              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.


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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,


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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


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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


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               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),


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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


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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.


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        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.


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        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


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        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


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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


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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


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       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.


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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


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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


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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


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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.


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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


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       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:


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          "...   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.


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       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


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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


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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.


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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."


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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


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       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


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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


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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


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        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


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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.


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       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


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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


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       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


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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)


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      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


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       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


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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


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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


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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.