Calcutta High Court (Appellete Side)
Debdas Ganguly @ Gangopadhyay & Anr vs The State Of West Bengal& Ors on 11 March, 2021
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
HON'BLE JUSTICE SUBRATA TALUKDAR
AND
HON'BLE JUSTICE ANIRUDDHA ROY
FMA 1313 of 2018
With
IA No. CAN 1 of 2018 (Old No. CAN 7951 of 2018)
Debdas Ganguly @ Gangopadhyay & Anr.
-Vs.-
The State of West Bengal& Ors.
For the Appellants : Mr. Chitta Ranjan Chakraborty
Mr. Dip Jyoti Chakraborty
For the State/Respondents : Mr. Joytosh Majumder
Mr. Pinaki Dhole
Heard on : 22/12/2020
Judgment on : 11/03/2021
Subrata Talukdar, J:
The action in this appeal challenging reliefs claimed before and
denied by the Hon'ble Single Bench, swims in equity but has law on
both its banks.
The facts of this case are short.
The petitioner No.1 is the father of a Civil Defence Volunteer
(CDV), since deceased. The name of the deceased CDV was one
Taraprasanna Ganguly. The appellant No.2, who was also the writ
petitioner No.2, is the mother of the deceased Taraprasanna Ganguly.
2
The deceased Taraprasanna Ganguly was working as a CDV
under the Department of Civil Defence, Government of West Bengal.
On the 12th of June 2015 the deceased Taraprasanna Ganguly
was directed along with other volunteers to proceed for rescue
operations at Purulia Sadar. Under instructions from the Sub-
Divisional Officer (SDO), Raghunathpur, the rescue party, including
the late Taraprasanna Ganguly, proceeded by road in a rescue vehicle
provided by the department.
En route to the rescue site, the departmental vehicle met with a
severe accident. In the accident four other CDVs accompanying the
late Taraprasanna Ganguly along with the driver of the rescue vehicle
were critically injured. However, the late Taraprasanna Ganguly was
the only CDV in the party to tragically lose his life in the accident.
Following the post mortem and the filing of the First Information
Report, the petitioner No.1,i.e. the father of the deceased
Taraprasanna Ganguly, wrote to the SDO, Raghunathpur for release
of compensation in favour of the family of his dead son. Such
representation was received by the office of the SDO, Raghunathpur,
also a respondent in the writ petition, on the 10 th of June, 2015.
It must be mentioned at this juncture that in terms of the Memo
No. 120/SDO(R)/C dated the 22nd of September 2013, the SDO,
Raghunsthpur had selected five CDVs, including the deceased
Taraprasanna Ganguly, to be a part of the Disaster Management
Team which was to visit Purulia Sadar in rescue efforts arising out of
the uprooting of trees consequent to Cyclone Amphan.
3
It would be also relevant to mention at this juncture that by a
communication bearing Memo No. 1200/BDO/RNP-I dated the 4 th
August 2015, the BDO, Raghunathpur-I Development Block wrote to
the SDO Raghunathpur with a proposal that since the petitioner No.1,
i.e. the father of the late Taraprasanna Ganguly, has already applied
for accident benefits from the Workers Welfare Board (WWB), hence
his prayer for ex-gratia may not be recommended.
Thereafter, by a communication bearing the Memo No.
989/1(2)-DCD dated 4th of November 2015 addressed by the
Additional Director General of Police (ADGP) and Director of Civil
Defence to the Principal Secretary, Department of Civil Defence, it
was, inter alia, stated as below:-
"Sub : Road accident of CDRV bearing No. WB-
37C/6787 on 12.06.2015.
Ref : No. 2195/SDO/RNP/CD dated
16.10.2015 of SDO & Dy. Controller of Civil
Defence, Raghunathpur, Purulia.
I am forwarding herewith Memo NO. cited
under reference along with required documents as
sought from the DM & Controller of Civil Defence,
Purulia vide this office Memo No. 567/DCD dated
07.07.2015 (copy enclosed) for financial assistance
in favour of the family of deceased CDV
Taraprasanna Ganguly, S/O Debdas Ganguly of
Vill.- Sanka, P.S. - Raghunathpur, Dist. Purulia who
lost life in road accident on way to attend the
rescue operation and five other CDVs accompanying
him along with driver got critically injured.
In view of above, it is recommended for ex-
gratia an amount of Rs. 5 Lacs for the deceased
CDV Late Taraprasanna Ganguly and other CDVs
who got injured namely :-
1) Sri Jagganath Roy, S/O Subodh Roy,
2) Sri Sandip Gorain, S/O Tapan Gorain,
3) Sri Prasanta Majee, S/O Nani Gopal Majee,
4) Sri Bikash Acharya, S/O Basudev Acharya
and
4
5) Sri Sourav Mishra (vehicle's driver) S/O Pradip
Kr. Mishra
an amount of Rs. 2 Lacs per head to boost the
morale of CDV and save concept of qrt from
demoralizing effect.
Concerning this, it is also requested to make
necessary arrangement for repairing the CDRV
which met accident on 12.06.2015 and not
roadworthy at present. So, from the technical point
of view MVI (Technical) Raghunathpur, Purulia has
submitted his inspection report depicting the
damages and probable estimated cost of Rs.
72,245/- for repairing the said CDRV bearing No.
WB-37C/6787 through the Addl. R.T.O. & SDO &
Dy. Controller of Civil Defence, Raghunathpur,
Purulia which is enclosed herewit in enclosures Sl.
No. 19, 20 & 21.
Hence it is rquested that total amounting to Rs.
5Lacs for the deceased CDV + Rs. 10 Lacs( Rs. 2
Lacs x 5 injured CDVs) + 72,245/- (probable
estimated cost for repairing the accidental vehicle) =
Rs. 15,72,245/- (Rupees fifteen Lacs seventy two
thousand two hundred fourty five) only may kindly
be sanctioned and allotted from your end in favour
of DM & Controller of Civil Defence, Purulia to meet
up the compensation and repairing of CDRV as
stated in the foregoing paras.
This is for favour of your kind perusal and
necessary action.
Enclo: Relevant Reports/documents of 50(fifty)
pages & copy of this office Memo No.567/DCD
Dated 07/07/2015.
Sd/-
(Gangeswar Singh)
ADGP & Director of Civil Defence,
West Bengal.
Memo NO : 989/1(2)/DCD
Copy forwarded to:
1. The DM & Controller of Civil Defence, Purulia.
2. P.S. to Hon'ble MIC, Govt. Of West Bengal,
Department of Civil Defence, "Nabanna", 325, S.C.
Chatterjee Road, Howrah-2."
It would be thus, evident from the communication of the ADGP
and Director of Civil Defence that a total of Rupees Fifteen Lakhs and
odd were requested to be sanctioned to the account of the District
5
Magistrate and Controller of Civil Defence, Purulia towards
compensation and repair of the rescue vehicle. It is also noticed that
out of the said Rupees Fifteen Lakhs and odd, Rs. 5 Lakhs were
directed to be sanctioned in favour of the late Taraprasanna Ganguly.
By a further communication dated 5 th of November 2015, the
ADGP and Director of Civil Defence wrote to the District Magistrate
and Controller of Civil Defence, Purulia to issue a Non-payment
Certificate in favour of the family of the deceased so that the family of
the deceased can receive compensation/ ex-gratia as recommended by
the communication dated 4th November 2015 (supra).
It would be not out of place to also mention at this juncture that
by the Memo No. 2367/SDO/RNP/CD dated 18 th November 2015the
SDO and Deputy Controller of Civil Defence, Raghunathpur forwarded
the prayer of the father of the deceased/ the present appellant No. 1
to the District Magistrate and Controller of Civil Defence, Purulia for
release of "the admissible compensation as claimed in favour of the
bereaved and wretched family at the earliest." Following repeated
correspondence by and between the family of the deceased and the
authorities on the ground, the attention of this Court is next drawn to
the Report called for by the Hon'ble Single Bench in the writ petition,
being WP 2666 (WP) of 2017, vide its interim order dated 19th April,
2017.
The Report was filed in the form of an affidavit by one Tapas
Kumar Bandopadhyay, Deputy Controller of Civil Defence
(Headquarter) Kolkata. The Report of the then Director of the Civil
6
Defence, West Bengal was made part of the affidavit filed before the
Hon'ble Single Bench. The Report of the said Sri Bandopadhyay is
dated the 13th of June 2017 and, inter alia, reads as follows:-
"Report of the Director of Civil Defence, West
Bengal
Reference : W.P. No.2666(W) of 2017 - Debdas
Ganguly & Anr. Vs. The State of West Bengal
& Ors.
In compliance with the order of the Hon'ble
High Court in the above mentioned case, it is
humbly submitted that the Director of Civil Defence,
West Bengal was not the competent authority to
sanction ex-gratia in favour of the next of kin of the
deceased Civil Defence Volunteer. He could have
only recommended a case to the Department for
consideration of the Government on humanitarian
grounds.
2.In pursuance of the letter of the Sub Divisional
officer and Deputy Controller of Civil Defence,
Raghunathpur, District Purulia vide his
No.2195/SDO/RNP/CD dated 16th October, 2015
the then Director of Civil Defence, West Bengal
made a correspondence with the Department of
Civil Defence, Government of West Bengal for
granting an ex-gratia compensation of an amount of
Rs. 5.00 lakhs in favour of next of the kin of the
deceased Civil Defence Volunteer namely Shri
Taraprasanna Ganguly who died in road accident
on way to attend a rescue operation and an amount
of Rs. 2.00 each to five other Civil Defence
Volunteers accompanying him as well as the driver
who got seriously injured. This refers to this office
Memo No.989/DCD dated 4th November, 2015. A
copy of the aforesaid correspondence is enclosed.
3. The department of Disaster Management,
Government of West Bengal after due consideration
of the matter sanctioned an amount of Rs. 2.00
lakhs only in relation to the above noted case vide
Memo No. 1019RI/FR/I/4P-9/2011 dated 30 th
December, 2015. A copy of the same is also
enclosed.
4. It is humbly submitted that the undersigned is
not in a position to place before the Hon'ble Court
the reasons as to why the Government sanctioned
an amount of Rs. 2.00 lakhs which was lower than
that recommended by this office as he is not privy to
7
the relevant records or file belonging to the
Department of Disaster Management, Government
of West Bengal.
5. It is also humbly submitted that there is no
rule so far for payment of ex-gratia compensation to
Civil Defence Volunteers in such cases. There is
also no scheme so far for giving compassionate
appointment in respect of Civil Defence Volunteers."
Mr. Majumdar, Ld. Government Pleader, relies on the said
Report dated 13th of June 2017(supra) and submits that there being
no rules/instructions/guidelines for grant of compensation in cases
such as this, however unfortunate the personal nature of the facts,
there can be no legal right to claim a compensation of Rs. 5 Lakhs
towards ex-gratia by the family of the deceased. Mr. Majumdar
submits that ex-gratia is not a legally admitted norm of paying
compensation but would depend upon the available resources and the
discretion of the paying authority viz., the State Government.
It is submitted that the communication dated 4 th November
2015 by the then ADGP and Director of Civil Defence seeking a
compensation of Rs. 5 Lakhs in favour of the family of the deceased is
merely in the nature of a recommendation. Such recommendation is
not binding on the ultimate disbursing authority, i.e. the Finance
Department.
Therefore, Learned Government Pleader submits that the
ultimate sanction of Rupees Two Lakhs in favour of the family of the
deceased is justified. The axiomatic submission follows that in the
absence of a legal right to claim a compensation of Rs. 5 Lakhs, a writ
petition to sustain an unavailable right is not maintainable. Payment
8
of the ex-gratia being a discretion of the State Government, the
Hon'ble Single Bench has correctly decided the issue.
Learned Government Pleader further submits that the Hon'ble
Single Bench has also correctly decided the issue of non-grant of
compassionate appointment to a family member of the deceased. Such
relief is not only not maintainable in law since compassionate
appointment cannot be a legal right, such relief is also over and
beyond the scope of the writ petition which must be confined to claim
of a single relief, if available and, in this case the writ petitioners have
claimed ex-gratia with an additional relief of compassionate
appointment.
Mr. Chakraborty, Ld. Counsel for the petitioner, however relies
on the legal principle that discretion cannot be arbitrarily exercised
relying on the authorities of 2011)14 SCC 481, In Re: Lilabati Behera
Vs. State of Odisha; 1993) 2 SCC 746, In Re: Sube Singh Vs. State of
Haryana; 2006) 3 SCC 178, In Re: Helen C. Rebello Vs. Maharashtra
State Road Transport Corporation, 1999) 1 SCC 90; as well as the
Personal Injuries (Emergency Provisions Act), 1962 and the Civil
Defence Act, 1968 read with its Rules and Regulations.
Mr. Chakraborty submits that the family of the deceased is
entitled to a compensation commensurate to the factors which require
to be weighed in at the time of his death and therefore such
compensation in the form of ex-gratia cannot be whimsical.
9
It is lastly submitted that in addition to the ex-gratia the family
of the deceased is also entitled to a compassionate appointment in
favour of an eligible family member.
Having heard the parties and considering the materials placed,
this Court finds that the stand of the Ld. Government Pleader is one
based on the absence of any legal right in favour of the appellant/ the
writ petitioner to claim ex-gratia. It has been therefore submitted that
neither the writ petition nor the appeal is maintainable.
The stand taken by Ld. Government Pleader (supra) requires to
be examined in the context of the powers of the writ Court, a) to
direct payment of ex-gratia; and b) at/of a certain amount.
The law surrounding ex-gratia has intrigued jurists and,
arguably, finds place through an elaborate discussion in the reported
authority of 2011) 13 SCC 262, In Re: State of Rajasthan Vs. Sanyam
Lodha. The facts of this case and the law declared has, to the mind of
this Court, a bearing on the present facts. Therefore, the authority of
2011) 13 SCC 262(supra) requires to be quoted at some length:-
"Delay condoned. Leave granted.
This appeal arises from a decision of the Rajasthan
High Court in a public interest litigation filed by a
Legislator and social activist complaining of
arbitrary and discriminatory disbursement of relief
under the Chief Minister's Relief Fund (for short
`Relief fund') under the Rajasthan Chief Minister's
Relief Fund Rules, 1999 (for short, `the Relief Fund
Rules'). The respondent alleged that during the
period January 2004 to August, 2005,
challans/chargesheets were filed in 392 cases
relating to rape of minor girls; that out of them, 377
minor girls, did not get any relief or assistance from
the Relief Fund, 13 were granted relief ranging from
Rs.10,000 to 50,000, one victim (minor `K') was
10
given Rs.3,95,000 on 11.8.2004 and another victim
(minor `S') was given Rs.5,00,000 on 25.6.2005.
2. The respondent submitted that minor girls, that
too victims of rape, belong to a weak and vulnerable
group who are seldom in a position to seek relief
personally; and that if the Chief Minister was of the
view that monetary relief should be granted to such
victims of heinous and depraved crimes, all similar
victims of rape should be given monetary relief,
According to him if there were 392 victims of rape,
they should all be similarly treated and if some are
given relief,others also should be given similar
relief. It is contended that when discretion vested in
the Chief Minister in respect of the Relief Fund is
exercised in a manner that 377 voictos, are
oigmpred amd 13 are paid amounts varying from
Rs. 10,000 tp 50,000 and two victims alone are
paid Rs. 3,95,000 and Rs. 5,00,000 it leads to
inferences of arbitrariness and discrimination.
3. The appellant does not have any grievance about
payment of Rs.5,00,000 or Rs.3,95,000 to two of
the victims. It is also not his complaint that the said
two victims were undeserving. His grievance is the
other way around. According to him if two of the
victims were paid relief amounts in the range of
Rs.3,95,000 and Rs.5,00,000, there was no
justification for not paying any amount to 377
victims, or for paying amounts which were
comparatively very small (that is Rs.10,000 to
50,000) in the case of thirteen victims. He
contended that like other governmental resources or
funds, the distribution or monetary relief under the
Relief Fund should be equitable, non-discriminatory
and non-arbitrary. He submitted that paying very
high amounts in only one or two cases merely
because of media focus on those cases or because
the case had become caste-sensitive or because it
was politically expedient, while ignoring other
similar cases, was neither warranted nor justified.
4. The respondent also contended that
disbursement of monetary relief to the victims
cannot be in the absolute discretion or according to
the whims and fancies of the Chief Minister and
grant of monetary relief under the Relief Fund
should not become distribution of government
largesse to a favoured few. The respondent
therefore filed a writ petition (impleading the
appellants, namely the State of Rajasthan, Home
11
Ministry of Secretary to the Chief Minister, as the
respondents), seeking the following reliefs :
(i) a direction to the appellants to give to all rape
victims, who had not been granted any monetary
relief or who had been granted a negligibly small
relief, monetary relief of Rs.5 lakhs as in the case of
`minor K';
(ii) for a declaration that failure to give monetary
relief, or failure to give a uniform monetary help, to
all victims of rape from the Relief Fund is illegal,
arbitrary and unconstitutional; and
(iii) for deprecation of the misuse or discriminatory
utilization of the Chief Minister's Relief Fund with a
direction to the Chief Minister to adopt a fair and
non discriminatory policy in regard to disbursement
of amounts from the Relief Fund to similarly
situated persons, in particular minor victims of rape.
5. The appellants resisted the writ petition
contending that disbursement of funds from the
Chief Minister's Relief Fund is in implementation of
the policy of the state government to place at the
disposal of the Chief Minister of the State, some
funds for granting relief to the needy and deserving,
including victims of calamities, disasters and
traumatic incidents. It was submitted that the
discretion has been vested with the Chief Minister
who is the highest executive functionary in the
State, to ensure proper utilization of the fund, that
vesting of such discretion to grant some relief to
victims of disasters, accidents and gruesome
incidents, could not be subjected to any rigid
guidelines, and that the discretion and power to
grant relief from the said fund is exercised by the
Chief Minister in appropriate and deserving cases
in public interest. It is contended that exercise of
discretion in granting monetary benefit under such
a Relief Fund by a high functionary cannot be
subjected to principles of equality and non
discrimination.
6. The High Court allowed the writ petition by order
dated 18.12.2007. It was of the view that all minor
victims of rape required to be treated equally for the
purpose of grant of relief by the Chief Minister
under the Relief Fund. Consequently, the Division
Bench directed that Rule 5 of the Relief Fund Rules
1999 should be read (prospectively) as under :
12
"This fund shall be under Hon'ble the Chief Minister
so that he/she may utilize the fund equally and
without discrimination for grant of financial help."
The said order is challenged by the appellants in
this appeal by special leave.
7. On the contentions urged in this appeal, the
following questions arise for consideration :
(i) Whether the High Court could have substituted
Rule 5 of the Relief Fund Rules?
(ii) Whether the court was justified in holding that
all victims should be "treated equally" while
granting relief under the Chief Minister's Relief
Fund.
(iii) Whether a rule could be interfered merely on the
ground it vests unguided discretion?"
After a discussion on the Chief Minister's Relief Fund, the Hon'ble
Apex Court further discussed as follows:-
"19. Having regard to the scheme of the Relief Fund
Rules, grant and disbursal of relief amount under
the said Relief Fund Rules is purely ex-gratia, at the
discretion of the Chief Minister. The Relief Fund
Rules do not create any right in any victim to
demand or claim monetary relief under the fund.
Nor do the Rules provide any scheme for grant of
compensation to victims of rape or other unfortunate
circumstances. Having regard to the nature and
scheme of the Relief Fund and the purposes for
which the Relief Fund is intended, it may not be
possible to provide relief from the Relief Fund, for all
the affected persons of a particular category.
Monetary relief under the Relief Fund Rules may be
granted or restricted in exceptional cases where the
victims of offences, have been subjected to shocking
trauma and cruelty. Naturally any public outcry or
media focus may lead to identifying or choosing the
victim, for the purpose of grant of relief. Other
victims who are not chosen will have to take
recourse to the ordinary remedies available in law.
It is not possible to hold that if one victim of a
particular category is given a particular monetary
relief under the Relief Fund Rules, every victim in
that category should be granted relief or that all
victims should be granted identical relief.
20. The need to treat equally and the need to avoid
discrimination arise where the
13
claimants/beneficiaries have a legal right to claim
relief and the government or authority has a
corresponding legal obligation. But that is also
subject to the principles relating to reasonable
classification. But where the payment is ex-gratia,
by way of discretionary relief, grant of relief may
depend upon several circumstances. The authority
vested with the discretion may take note of any of
the several relevant factors, including the age of the
victim, the shocking or gruesome nature of the
incident or accident or calamity, the serious nature
of the injury or resultant trauma, the need for
immediate relief, the precarious financial condition
of the family, the expenditure for any treatment and
rehabilitation, for the purpose of extension of
monetary relief. The availability of sufficient funds,
the need to allocate the fund for other purposes may
also play a relevant role. The authority at his
discretion, may or may not grant any relief at all
under Relief Fund Rules, depending upon the facts
and circumstance of the case.
22. All functionaries of the State are expected to act
in accordance with law, eschewing
unreasonableness, arbitrariness or discrimination.
They cannot act on whims and fancies. In a
democracy governed by the rule of law, no
government or authority has the right to do what it
pleases. Where the rule of law prevails there is
nothing like unfettered discretion or unaccountable
action. But this does not mean that no discretion
can be vested in an authority or functionary of high
standing. Nor does it mean that certain funds
cannot be placed at the disposal of a high
functionary for disbursal at his discretion in
unforeseen circumstances. For example, we may
refer to the extreme case of secret funds placed at
the disposal of intelligence organizations and
security organizations (to be operated by very
senior officers) intended to be used in national
interest and national security or crime detection
relating to serious offences, either to buy
information or to mount clandestine operations.
Such funds should not be confused with slush
funds kept for dishonest purposes. The
expenditure/disbursals from such secret funds are
not subjected to normal audits nor required to be
accounted for in the traditional manner.
24. A Constitution Bench of this Court in B.P.
Singhal v. Union of India (2010) 6 SCC 331 while
14
explaining the nature of judicial review of
discretionary functions of persons holding high
offices held that such authority entrusted with the
discretion need not disclose or inform the cause for
exercise of the discretion, but it is imperative that
some cause must exist as otherwise the authority
entrusted with the discretion may act arbitrarily,
whimsically or mala fide. Elucidating the said
principle this Court observed:
"The extent and depth of judicial review will depend
upon and vary with reference to the matter under
review. As observed by Lord Steyn in Ex parte Daly
[2001 (3) All ER 433], in law, context is everything,
and intensity of review will depend on the subject-
matter of review. For example, judicial review is
permissible in regard to administrative action,
legislations and constitutional amendments. But the
extent or scope of judicial review for one will be
different from the scope of judicial review for other.
Mala fides may be a ground for judicial review of
administrative action but is not a ground for judicial
review of legislations or constitutional
amendments."
Reading the above authority in the light of the facts of this case,
it is evident that the State respondents did not bother to give any
explanation for exercising their discretionary power in the manner it
was done. Quite to the contrary, the recommendation of the Director,
CDV and ADGP, West Bengal dated 4th of November 2015(supra)
reiterates the fundamental principles of Article 14 of the Constitution
of India. The recommendation of the Director, CDV is founded on the
solid reason that even when it comes to payment of ex-gratia the
family of the dead need to be paid more than the family of the injured.
Accordingly, the ex-gratia for the dead person was fixed at Rs. 5 lakhs
and for that of each of the injured was fixed at Rs. 2 lakhs. The
differentia created by the recommendation was reasonable, fair and on
constitutional lines.
15
On the other hand, the Head of Account and Scheme
Description for ex-gratia payment to the 'families of indigent victims
due to accident' only mentions an allotted amount of Rs. 2 lakhs. No
distinction is drawn between the dead and the injured and all are
classified in a single unit comprising 'families of indigent victims due to
accident'. Again, the Head of Account signed by the Joint Secretary,
Department of Disaster Management, Government of West Bengal
being an Annexure to Memo No. 1019RI/FR/I/4P-9/2011 dated the
30th of December 2015 which is the Allotment Order, sanctions the
fund of Rs. 2 lakhs towards ex-gratia to one person who dies due to
road accident without mentioning any reasons in support thereof.
Read further with the above Allotment Order and the Annexured
Head of Account to the Memo, both bearing the self-same Memo No.
and date, the Report of the Director, CDV dated 13th June 2017,inter
alia, reads as follows:-
"Report of the Director of Civil Defence, West Bengal
........
3. The Department of Disaster Management, Government of West Bengal after due consideration of the matter sanctioned an amount of Rs. 2.00 lakhs only in relation to the above noted case vide Memo No. 1019RI/FR/I/4P-9/2011 dated 30 th December, 2015. A copy of the same is also enclosed.
4. It is humbly submitted that the undersigned is not in a position to place before the Hon'ble Court the reasons as to why the Government sanctioned an amount of Rs. 2.00 lakhs which was lower than that recommended by this office as he is not privy to the relevant records or file belonging to the Department of Disaster Management, Government of West Bengal.
5. It is also humbly submitted that there is no rule so far for payment of ex-gratia compensation to Civil Defence Volunteers in such cases. There is 16 also no scheme so far for giving compassionate appointment in respect of Civil Defence Volunteers." The Report of the Director, CDV is part of the Affidavit of the said Sri Bandopadhaya (supra).
On a holistic consideration of the above facts this Court is of the considered view that even if the stand of the Ld. Government Pleader is arguably accepted that there is no legal right to claim ex-gratia of a certain amount or, for that matter ex-gratia at all, the appellants/ the writ petitioners have a minimum right to claim ex-gratia for the dead over and above the ex-gratia paid to the injured.
There is no material placed before this Court either on behalf of the appellants/ the writ petitioners or, on behalf of the State Respondents, of the amounts respectively paid to each of the injured in the same road accident which claimed the life of the son of the present appellants. The principle that the discretion to pay even ex- gratia must follow standards of reasonable classification laid down by Article 14 of the Constitution of India is too trite to be re-emphasised.
To the mind of this Court, the action of the appellant/ the writ petitioner is maintainable to the extent that reasons can be sought from the State respondents on, a) the quantum of compensation disbursed to the dead and the injured respectively; and b) whether the ex-gratia paid on account of the death of the only son of the writ petitioners who was also the only breadwinner in the family was just. The requirement to act reasonably and fairly overwhelms the stand of the State respondents other than the then Director, CDV being the 17 author of the Memo dated 4 th November, 2015, that when it comes to ex-gratia the State can exercise discretion at its ipse dixit.
Although, the Hon'ble Apex Court in the facts of 2011) 13 SCC 262 (supra) took a final decision to the effect that the distinction in payments to the rape victims in Rajasthan was based on an intelligible differentia, no such reasoning is given or, cared to be given by the State respondents in the facts of this case.
For the further benefit of this discussion, this Court cannot help but notice the principle of just compensation with reference to a claim arising out of death in a road accident. Paragraph 12 from the authority of the Hon'ble Apex Court as reported in 2003) 7 SCC 197 requires to be quoted.
"12. It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merris in West v. Shepard (1964 AC 326). Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place claimant as far as possible in the same position financially as he was before accident. Broadly speaking, in the case of death basis of compensation is loss of pecuniary benefits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to the estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring value of human life and measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor it should be a source of profit of the person in whose favour it is awarded. Upjohn L.J. in Charter House Credit v. Jolly (1963) 2 CB 683) remarked, 'the assessment of damages has never been an exact science; it is essentially practical'. "18
The authority of 2003) 7 SCC 197 is therefore referred to in this discussion to highlight the need to assess the just value of human life even as understood in pari materia circumstances.
For the reasons above, the matter stands remanded to the Principal Secretary, Finance Department, Government of West Bengal to consider the claim of the appellants keeping in view the above discussion and pass a reasoned order which shall be then communicated to the appellants.
It is expected that the exercise shall be completed not later than a period of eight weeks from the date of communication of this order.
In the event the reasoned order is issued in favour of the appellants, the outstanding differential amount shall be released to the appellants not later than two weeks after the reasoned order is communicated to the appellants.
However, the prayer for compassionate appointment in favour of a family member of the deceased is denied on the ground of the lack of maintainability of a second prayer in a single writ petition. Such prayer, in the opinion of this Court, is not legally consequential to a claim to ex-gratia.
However again, the denial of the prayer for compassionate appointment is not on merits but, on the lack of maintainability of the same. It will be open to the appellants/ the writ petitioners to take steps for claiming compassionate appointment strictly in accordance with law.
19
FMA 1313 of 2018 with IA No. CAN 1 of 2018 (Old No. CAN 7951 of 2018) stands accordingly disposed of.
There will be no order as to costs.
Parties shall be entitled to act on the basis of a server copy of the Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
I agree.
(Aniruddha Roy, J.) (Subrata Talukdar, J.)