Himachal Pradesh High Court
Jaram Singh vs State Of H.P. And Ors. on 17 August, 1987
Equivalent citations: AIR1988HP13
JUDGMENT P.D. Desai, C.J.
1. On May 22, 1986, the petitioner who is a resident of village Jangla, Pargana Panjala, District Chamba, addressed a letter to one of us (Chief Justice), which has since been registered as a writ petition, complaining that his wife, Brahmi Devi, died on October 23, 1984, while returning home in the evening, on account of being hit by a stone which rolled down from the upper side of the road, where the labourers engaged by the Public Works Department were carrying out construction work of another road. The petitioner stated that he had to look after his two minor children after the accidental death of his wife and that on that account he was required to give up his employment with a private firm which yielded an income of Rs. 300/- per month. The petitioner further submitted that he had approached the Public Works Department authorities for giving him an appropriate relief but his request had fallen on deaf ears. He also submitted that on account of poverty, he was unable to approach the court in regular course and that justice be done by granting him an appropriate relief. Annexed to the petitioner was the English translation of the Daily-Diary Report No. 18 recorded at 9.30 P.M. at the Police Station, Sadar Chamba, District Chamba on October 23, 1984 and a copy of the Post-mortem Certificate issued by the Senior Medical Officer, In charge, District Hospital, Chamba.
2. The Daily-Diary Report shows that information was lodged by one Gain Chand, s/o Kharku, resident of village Janjla, who was at the material time accompanied by Dhoda Ram, s/o Jindi, r/o Sakela, and Thakur Chand, s/o Prabhu Dayal, r/o Jeelo, in the following terms:
"After doing labour work etc. at Chamba town I reached village Kariyan at about 6.30 P.M. where I came to know from the people that my niece (sister's daughter) Smt. Brahmi Devi, w/o Shri Jarmu, r/o Janjla had gone to village Rajara, along with another woman, namely, Bimla, w/o Sukho r/o Nalera. During the day time after going to the "Gharats" she had gone from there to her parents house at village Saila. While returning from there when they reached at place Dwarka at about 4 P.M. on the road which is under construction to village Lilah, suddenly a stone fell from the upper side where P.W.D. labourers were working and hit the head of Brahmi and consequently she died at the spot. I also visited the spot where many persons of our village had gathered. P.W.D. labourers are also there. The dead body is lying on the spot. The incident occurred accidently. Information of this incident has been given to Brahmins husband who is a cleaner with truck No. HIM 1608. I have come to lodge the report. Action may be taken."
All the three persons, namely, Gain Chand, Dhoda Ram and Thakur Chand appended their signatures in the Daily-Diary below the information therein recorded in the aforesaid terms. The proceedings recorded below the report show, inter alia, that the Station House Officer had proceeded to the spot along with a police party for conducting an inquiry under Section 174 of the Code of Criminal Procedure.
3. The Post-mortem certificate shows that the post-mortem on the dead body of deceased Brahmi Devi was performed on October 24, 1984 by the Medical Officer, Dr. P. P. Singh, in whose opinion the death had occurred "due to Head injury due to stoning leading to Brain Intragranial Haemorhage leading to shock and death". The death had occurred within a period of twenty four hours prior to the holding of the postmortem examination.
4 On September 29, 1986, notice of the petitioner was ordered to issue to the respondents (State of Himachal Pradesh, the Engineer in Chief, HP. P.W.D., and the Executive Engineer, HP. P.W.D., Chamba) and it was made returnable on October 27, 1986. An affidavit-in-reply dated November 17, 1986 was filed by and on behalf of the respondents by Shri U.N. Sharma, Executive Engineer, H.P. P.W.D. Chamba. The sole merit of the affidavit is its brevity. The bare denials therein contained failed to carry conviction with the court. Under the circumstances, when the case next reached hearing on November 19, 1986, the Court passed an order, the relevant portion whereof is extracted herein below :
"The court is wholly dissatisfied with the return filed by the Executive Engineer, Chamba Division, HP. P.W.D. Chamba. Save and except bare denials, no positive version is coming forth from the respondents. In a case of this nature the court expects an enquiry to be held to verify facts and to ascertain the truth, if any, of the version set out in the petition, if there is no material or satisfactory material on the official record, and the placement on the record of the case of the material collected as a result of such enquiry. The deponent will, therefore, file a supplementary affidavit on or before December 1, 1986, after holding such enquiry as he considers fit and proper to verify the facts and for such purposes, he may, inter alia, inspect the site to appreciate the situation and topography, question the persons employed in the construction of the road at the material time and gather from the petitioner, the inhabitants of the village, the police etc. the relevant material.
The Deputy Superintendent of Police, Chamba, will attend the Court on Dec. 3, 1986 at 10 AM and produce the record relating to the complaint lodged by the petitioner on October 23, 1984 (Police Diary No. 18) at P. S. Sadar Chamba and apprise the Court about the investigation, if any, carried out pursuant to the lodgement of such complaint and the outcome thereof. The said officer will also file an affidavit and place on record the relevant information on or before December 1, 1986."
The order was duly complied with and the Executive Engineer, HP. P.W.D., Chamba, submitted his report along with certain accompaniments. The Deputy Superintendent of Police, Chamba, also filed an affidavit and produced the original record of investigation.
5. The matter reached hearing again on December 3, 1986. The relevant portion of the order passed on that day by the court is extracted hereinbelow :
"The Court has perused the report submitted by the Executive Engineer, Chamba Division, H.P. P.W.D., Chamba, and its accompaniments. The court has also perused the affidavit filed by the Deputy Superintendent of Police, Dalhousie. The original record of the inquiry held by the Executive Engineer, as well as the investigation carried out by the police has also been perused. The court has recommended to the learned Advocate General to look into the records and to consider whether, on the facts and in the circumstances of the case, an ex gratia payment to the petitioner could be made and an offer of employment on permanent basis could also be made to him."
6. On December 17, 1986, when the matter reached hearing once again, the Court passed the following order :
"The learned Advocate General states that the question of making an ex gratia payment, if any, to the petitioner will have to be taken up at the Government level and that some more time would be required to enable the competent authority to arrive at a decision in the matter. As regards offering of employment on permanent basis also, he states that some more time would be required. Under the circumstances, the court directs that the petitioner be offered employment on daily rated basis at a place near to his ordinary place of residence till the time the case for ex gratia payment, if any, and permanent employment, if any, is duly processed. The employment will be offered as expeditiously as possible. The third respondent will forthwith get in touch with the petitioner and make an offer of employment as aforesaid to him and provide him employment soonest thereafter."
7. The case reached hearing next on Marth 11, 1987, when the Court passed the following order :
"The learned Advocate General has placed on record the letter dated March 10, 1987, received by him from the Chief Engineer (N), HP. P.W.D. Dharamsala, together with its accompaniments. The letter states that the State Government has not found it possible to make the payment of ex gratia compensation or to provide employment on a permanent basis to the petitioner.
In order to arrive at a just and proper decision on the issues arising in the present case, it is expedient to direct the holding of an inquiry by a competent and independent person into the circumstances under which the wife of the petitioner, Smt. Brahmi Devi, met with her death on October 23, 1984 and the liability, if any, of any person including the State Government and/or its subordinates and limbs in regard to such death. The Senior Sub-Judge, Chamba, is accordingly appointed as Commissioner to hold the inquiry. He will, if required, visit the spot and summon and examine witnesses including the witnesses of the concerned department of the Government and call for the records of any public authority to ascertain facts. All persons including Government and semi-Government authorities will extend co-operation to the Commissioner. A copy of the present case file will be forwarded to the Commissioner by the Registry within a period of one week from today. The State Government wilt, for the time being deposit a sum of Rs. 1500/-with the Commissioner to enable him to perform the duties entrusted to him under this order and to meet all the costs and expenses of the inquiry. The deposit will be made on or before March 25, 1987. The Commissioner will submit bis report to this court within a period of three months from today along with the record of the inquiry. Upon the receipt of the report, a copy thereof will be supplied to the learned Advocate General.
The interim directions issued on December 17, 1986, with regard to the employment of the petitioner on daily-rated basis will continue to remain operative till further orders."
8. The Commissioner has since submitted his report dated June 12, 1987. The report, which exhaustively discusses all the aspects of the case, has been submitted after holding a detailed inquiry and after affording to the parties, who were represented by counsel, ample opportunities to make good their respective cases. As many as six witnesses produced by each side were examined by the Commissioner and permitted to be cross-examined by the other side. Hearing was also afforded to the parties through Counsel. The Commissioner inspected the spot twice and the inspection notes recorded on each occasion are also on record. The entire record of the inquiry has been submitted along with the report. In the report, the Commissioner formulated the following two points for determination :
"1. In what circumstances Smt. Brahmi Devi met with her death on October 23, 1984?
2. The liability, if any, of any person including the State Govt. or its subordinates or limbs in regard to the death of Smt. Brahmi Devi?"
The following findings have been recorded on these points.
"Point No. 1 : Smt. Brahmi Devi died due to being hit with a stone, which rolled down from the road which was being widened at the relevant time by the P.W.D. labour.
Point No. 2: Himachal Pradesh Govt. through its employees is liable for the death of Smt. Brahmi Devi."
9. A copy of the report was supplied to the learned Deputy Advocate General and he was also afforded an opportunity to inspect the record of the enquiry so as to enable the respondents to file their objections, if any. Only the Executive Engineer HP PWD, Chamba, has submitted his objections on affidavit dated August 10, 1987. No objections have been filed by and oh behalf of the other respondents. The objections filed by the Executive Engineer are substantially to the effect, inter alia, that no direct evidence was led before the Commissioner qua the accident in question, that his report is based only on circumstantial evidence "which is not permissible under law" and that there was no material on record to show that the deceased met with her death on account of being hit by a stone rolling down from the upper side of the hill due to any neglingent act on the part of the P.W.D. Apparently, the objections have been stated merely to be rejected. It is strange to find a responsible officer of the Government going as far as to say that it is not permissible in law to base findings of fact on circumstantial evidence and claiming that there is nothing on the record to establish the cause of death of the deceased, despite ample material having been brought on the record of the inquiry which has been carefully and painstakingly analysed in the course of his report by the Commissioner. The learned Deputy Advocate General was heard in support of the objections. He made a faint attempt to support the points raised in the affidavit but could not advance a single convincing argument to sustain them. In our opinion, no objections worth the name have been set out in the affidavit and they deserve outright rejection.
10. As earlier pointed out, the Commissioner has held an exhaustive inquiry and submitted a well considered and comprehensive report after taking into account the entire material gathered during the course of the inquiry. He has recorded a clear finding to the effect that the death of Brahmi Devi had occurred instantaneously when she was hit by the stone which rolled down from the upper side of the hill where labourers engaged by the Public Works Department were working at the relevant time for widening a road. For the purposes of recording the aforesaid finding; the Commissioner relied, inter alia, upon the following evidence led on behalf of the petitioner :
(1) Smt. Simla Devi, AW 4, who was walking a few steps ahead of the deceased when the accident occurred and who had heard the sound of a stone rolling down and hitting the deceased and who had raised an alarm which caused the PWD labour working up-hill to come down.
(2) Shri Gian Chand, AW 5, who, having learnet about the death of the deceased, had gone to the spot and found her dead body lying on the road and had seen the PWD labour and others gathered there and who had reported the matter to the police.
(3) Dr. A. J. Mirza, Senior Medical Officer, AW 1, who produced the post-mortem report Ex, AW 1/A and the post-mortem certificate AW 1/B, both of which recorded the finding that the deceased had died due to stone injury which in its turn caused an injury to brain and intracranial haemorrhage leading to shock and death.
(4) Shri Shakti Parshad, Head Constable, AW 2, who had recorded the Rapat Roznamcha (Daily diary No. 18 recorded at 9.30 P.M. on 23-10-1984) Ex. AW 2/A, to the effect that the deceased was hit on the head by a stone which fell from the upper side of the hill where the PWD labourers were working and that she had consequently died on the spot.
(5) Shri Mohinder Singh, Postman, AW 6, who had noticed, at the material time, the PWD labour working on the opposite side of the Jangi-Lihal road on a curve where no flagman was deployed.
The Commissioner has discussed in detail the rebuttal evidence led on behalf of the respondents and rejected the same on cogent grounds. The following is a brief summary of the findings recorded by him with respect to such evidence :
(1) Shri U. N. Sharma, Executive Engineer, (respondent No. 3) RW 1, had no personal knowledge regarding the incident because he was not present on the spot at the relevant time; he admittedly did not even know whether the PWD labour was working at the material time on the project of the widening of the curve of the road up-hill; the inquiry report Ex. RW 1/A submitted by him together with the site plans RW 1/B and RW 1/C pursuant to the order of this Court dated November 18, 1986, were unreliable; the site plans were not prepared by him but by a Surveyor, whose name was not known to him, and that too after he had conducted an inquiry on the spot; the place where the dead body of Brahmi Devi was indicated as lying in the site plan was not found to have been correctly shown when the spot was inspected in the presence of Smt. Bimla Devi, AW 4, Shri Gian Chand, AW 5 and Shri Man Singh, Mate, RW 4, all of whom had pointed out the right spot; whereas the report disclosed that two flagmen had been deployed downhill, on the side of the road, at the material time, in order to avoid any mishap to the passers-by, his deposition was to the effect that the flagmen are deployed only at the time when blasting work is carried out and not throughout the day.
(2) Shri Brij Lal, RW 2, Assistant Engineer at the time of the incident at Rakh, gave a version which was full of contradictions and highly improbable; he admitted that he had gone to the spot on being informed by the Mate, Shri Man Singh, RW 4, about the death of a woman but stated that he did not make any effort to enquire into the circumstances under which she died since he was not concerned about the same; a report about the death was admittedly made to him in writing by Shri Kamal Naresh, RW 3, Junior Engineer and he had forwarded the same to the Executive Engineer and later on he had been informed by the authorities that PWD labour was not responsible for the death; when asked to produce the report and given time to do so, he retracted from his earlier statement and stated that the same pertained to the death of some other lady.
(3) Shri Kamal Naresh, RW 3, Junior Engineer, was not present on the spot when the incident occurred; he deposed that the PWD labour had been instructed to deploy flagmen downhill to avoid any mishap when debris was to be thrown down between 4.30 P.M. and 5 P.M.; he, however, stated that no debris was thrown downhill on the day in question.
(4) Shri Man Singh, Mate, RW 4, stated that two Beldars, namely, Bajru Ram and Uttam Chand, had been deployed to avoid any mishap; this part of the evidence stood contradicted by the evidence of Bajru Ram, RW 5, who deposed that no person with flag was deployed downhill on that day.
The Commissioner found at the time of the site inspection that four parapets had been constructed on the road uphill but has observed that they were apparently constructed after the mishap and that no parapet existed before the mishap.
11. In paragraph 9 of the report, the Commissioner has discussed the question of liability and the findings recorded by him on the said issue are extracted hereinbelow :
"Admittedly Junior Engineer Sh. Kamal Naresh and Assistant Engineer Shri Brij Lal were not present at that time. The labour so employed consisted of one Mate, Shri Man Singh and 11 Beldars. As stated by RW 5 Bajru Ram, who was one of the Beldars, working at the site on the date of mishap, no flagman downhill was deployed by the PWD labour in order to avoid any mishap. The statements of RWs 3 to 5 that on that day no stone or debris were thrown down continuously for two days cannot be relied upon. The assertion of aforesaid RWs that debris were only to be thrown down between 4.30 P.M. and 5.00 P.M. everyday, is also not believable as within half an hour at the close of the working day, the debris excavated throughout the day by 11 Beldars could not be thrown down. As has been stated under issue No. 1 above, the report Ex. RW 1/A of RW 1 Sh. U. N. Sharma, Executive Engineer that two flagmen had been deployed down hill to avoid any mishap from the falling of the debris, has been falsified by the statements of RW 5 Bajru Ram and RW 4 Man Singh Mate, according to whose statements, no flagmen on that date and at the time of mishap had been so deployed. I have stated above that death of Smt. Brahmi Devi had occurred due to rolling down of a stone from the bend where PWD labour was working. It was the bounden duty of the PWD labour to have taken adequate precautions to avoid any such mishap when excavation work was in progress and the debris had to be thrown down. Therefore, it is a case of sheer negligence on the part of PWD labour headed by Sh. Man Singh Mate to have not deployed any labourer down hill to warn the passers-by from any stone/debris hitting them down hill, particularly when there was a passage and even motorable road where not only human beings travelled but buses/number of vehicles also passed. It is shocking to note that RW 2 Brij Lal Assistant Engineer on being so informed about the death of a lady on the spot down-hill where PWD labour was working, he reached the spot, saw the dead body but did not bother to enquire into the circumstances in which she died. He is not a truthful witness as he has himself contradicted his statement firstly to the effect that written report to this mishap was sent and Executive Engineer had replied that the department was not responsible and thereafter when asked to produce that record, he resiled from that statement. Under these circumastances, I hold that when the PWD labour employed by the PWD department did not take any precaution to avoid the mishap, the State Government is responsible for the above negligence on the part of its labourers. The responsibility for this negligence solely lies with Shri Man Singh Mate and through him on the PWD department and then the State Government."
12. The Court is of the view that the conclusion at which the Commissioner has arrived is the only one possible on the facts and in the circumstances of the case and that the petitioner, who has been seeking justice and who has been denied the same over a period of time and whose claim for relief herein is also sought to be defeated by all possible means, some of which could not and ought not to have been adopted by the State and its subordinates and limbs, who cannot resort to defences of such nature to which ordinary litigants may have recourse, is required to be granted an expeditious relief in an appropriate manner.
13. In Civil Writ Petn. No. 44 of 1987 (Kalawati v. State of Himachal Pradesh) and Civil Writ Petn. No. 50 of 1987 (Gian Chand v. State of Himachal Pradesh), an interim order was made on July 29, 1987 in the course of which this court has had an occasion to consider the legal aspect bearing on the jurisdiction of the writ Court to award damages in cases like these. Relying upon the decision in Rudal Sah v. State of Bihar, (1983) 4 SCC 141: (AIR 1983 SC 1086), it was there held that the High Court is empowered in the exercise of its writ jurisdiction to award damages in cases where a fundamental right like that of life and liberty is violated. It was further held that the writ Court is empowered to award a reasonable sum by way of compensation as an ad-interim or interim measure of a palliative nature, if, on the facts and in the circumstances of the case and on the basis of the material on record, its judicial conscience is satisfied, that if a suit were to be filed to recover the damages, a decree would follow almost as matter of course, although the precise amount which would be decreed cannot be predicated. Such a course of action would not only help in protecting, preserving and enforcing the fundamental right to life but also prevent its violation in other cases. In each of those two cases, the Court had directed that ad hoc or ad interim compensation/grant in the sum of Rs. 50,000/- be paid to the concerned petitioner(s) pending a fuller hearing of the case. It was clarified that the sum(s) to be paid accordingly would be liable to be adjusted against the damages if any, payable in accordance with law upon proper adjudication of the claim.
14. The present case is similar in nature. Herein also wife of the petitioner lost her life under the circumstances which leave no room for doubt that the death was the result of the negligence on the part of the employees of the PublicWorks Department of the State Government. The petitioner did all which lay within his power to seek justice outside the Court but his request has fallen on deaf ears. When he moved this Court and sought appropriate relief, the respondents came forward with an unconvincing defence, the Court then recommended the making of an ex-gratia payment to the petitioner and to offer employment on a permanent basis to him. The true implication of the recommendation was not appreciated and it appears to have been rejected without due consideration. The Court, therefore, ordered the appointment of a Commissioner and he submitted an exhaustive report after holding a detailed enquiry with which the respondents were adequately associated. The third respondent, however, persisted in reiterating untenable grounds in support of the defence plea and came forward with objections which contain no substance and make a strange reading. There is no manner of doubt, therefore, that this is a fit and proper case for ordering the State Government to give an ad-hoc or ad-interim compensation/grant to the petitioner pending the adjudication of his claim for a Just and adequate compensation in a properly constituted suit which he will be at liberty to file on his own behalf and on behalf of his children. The question of limitation will not come in the way in view of the fact that the petitioner was prosecuting with due diligence the present proceedings in this Court and also because in the case of his minor children, they suffer from a legal disability. The Court is of the view, however, that the State Government should consider arriving at an amicable settlement with the petitioner by way of reconciliation for which the State Government may initiate proceedings and that it should not drag the petitioner to a protracted litigation. Such a course of action has been adopted in the two writ petitions, namely, Civil Writ Petn. No. 44 of 1987 and Civil Writ Petn. No. 50 of 1987, referred to earlier, and there is no reason why the same course of action should not be followed even in the present case.
15. On the facts and in the circumstances of the case, the Court is of the opinion that it would be just and proper to direct the State Government to pay to the petitioner ad-hoc or ad-interim compensation/grant in the sum of Rs. 30,000/-. The said sum shall be deposited in the Registry of this Court on or before August 27, 1987. Upon the deposit of the said amount the matter be listed before the Registrar for settlement of the usual draft order regarding investment which shall provide that a sum of Rs. 5,000/- shall be set apart for meeting the costs and legal expenses of the proceedings which the petitioner may be required to initiate and that a sum of Rs. 25,000/- shall be invested in five separate fixed deposits of Rs. 5,000/- each. One fixed deposit of Rs. 5000/- shall be in the name of the petitioner and the other four in the name of his four minor children. The fixed deposit shall be placed subject to the following conditions :
(1) They shall not be encashed before the due date of maturity.
(2) No loan shall be raised against the same.
(3) The interest periodically accruing due on the fixed deposit of the petitioner shall be paid to him and that accruing due on the fixed deposits of the minor children shall also be paid to the petitioner for being utilised for the upkeep of the minors.
(4) The sums covered by the fixed deposits shall be liable to be adjusted against the compensation which may become payable to the petitioner and the minor children ultimately in accordance with law.
Rule is made absolute in light of the foregoing orders. No Costs.
16. Shri Devinder Gupta, who was appointed amicus curiae, has rendered valuable assistance to the Court and we place on record our sense of appreciation for the same.
17. Dasti copy to be supplied on usual terms expeditiously. A copy of the judgement be sent to the petitioner with a direction to appear before the Registrar on September 2, 1987.