Allahabad High Court
Sarita Singh vs State Of U.P. And 2 Others on 18 December, 2023
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:239767-DB Court No. - 40 Case :- WRIT - C No. - 21164 of 2022 Petitioner :- Sarita Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Jadu Nandan Yadav,Agnivesh Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Shri Pranvesh, Advocate holding brief of Shri J.N. Yadav, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents.
2. By means of the present writ petition, Smt. Sarita Singh w/o late Ranveer Singh has challenged the order dated 31.03.2022 passed by the District Magistrate, Farrukhabad, wherein, her claim was rejected on the ground that at the time of death, the petitioner's husband was not performing duties for prevention and recourse of Covid-19 Pandemic (in short the 'Pandemic') and further prayed commanding the respondents to ensure ex-gratia compensation of Rs.50 lakhs to the petitioner in terms of the Government Order dated 11.04.2020 issued by the State Government.
3. It transpires from the record that husband of the petitioner was engaged as 'Bus Driver' on a contractual basis in the Uttar Pradesh State Roadways Transport Corporation (in short the 'UPSRTC'). It is claimed that her husband was discharging his duties in the UPSRTC as bus driver and w.e.f. 19.05.2020 to 30.05.2020, where he was entrusted to take migrants from quarantine centers to their respective districts and thereafter w.e.f. 01.06.2020 to 17.06.2020 he was on regular duty for plying buses, when the Covid-19 was on peak and the restrictions/guidelines of the Government were in force. The husband of the petitioner was on duty till 17.06.2020 and thereafter he felt unwell and died on 20.06.2020. After the death, he was tested for Covid-19 (RTPCR) on 21.06.2020 and diagnosed as 'positive' in report dated 23.06.2020. The said fact is substantiated from the patient slip of the petitioner's husband issued by Dr. Ram Manohar Lohiya (Male) Hospital, Farrukhabad, which is also brought on record as Annexure no.3 to the writ petition. The said report has been acknowledged by the Assistant Regional Manager, UPSRTC, Farrukhabad on 27.06.2020 and accordingly he had submitted a report/recommendation to the concerned District Magistrate.
4. It is not in dispute that the petitioner's husband died due to Covid Infection. Once the respondent authorities have not accorded any reprieve in response to the Government Order dated 11.04.2020, such situation has impelled the widow to approach this Court by preferring Writ A No.6865/2021 (Sarita Singh vs. State of U.P. and others) with a grievance that till date her claim has not been considered by the District Magistrate, Farrukhabad. The learned Single Judge vide order dated 07.07.2021 disposed of the writ petition with a direction to the District Magistrate to decide the claim set up by the petitioner in the light of the Government Order dated 11.04.2020 within six weeks but when the said order was not complied with, the petitioner preferred Contempt Application No.638/2022 (Sarita Singh vs. Sanjay Singh, D.M.). After notice was issued in the said proceeding, the order impugned was passed which is subject matter of challenge in the present writ petition.
5. Learned counsel for the petitioner while questioning the validity of the order has placed reliance on paragraph 3 of the order impugned, which clearly indicates that petitioner's husband was engaged w.e.f. 19.05.2020 to 30.05.2020 as a Driver to take migrants from quarantine centers to their respective districts and w.e.f. 01.06.2020 to 17.06.2020 he was on duty for plying regular buses and thereafter he died on 20.06.2020. In support of his submission, he has placed reliance on the judgement and order dated 25.07.2022 passed in a bunch of writ petitions with leading Writ C No.28249 of 2021, Kusum Lata Yadav vs. State of U.P., wherein, the petitioners have questioned the legality of Clause 12 of the Government Order dated 01.06.2021, which was issued in modification of the earlier Government Orders dated 06.04.2021 and 04.05.2021. He submits that the Court has considered the time period in which due to Covid Infection the employee died and accorded relief to the petitioners therein. The relevant paragraphs of order dated 25.07.2022 are reproduced as under:-
"8. The Government Order issued by the State of U.P. on 1st June, 2021 dispelled many confusions as regards contracting COVID-19 and broader principles were adopted to ameliorate the implementation of the compensatory scheme evolved by the State. In the first place, the definition of the election duty was liberally adopted to include all the activities in relation to election duties where the probability of contracting COVID-19 prior to its diagnosis was prominent. The definition clause however made it dependant upon a person going to election duty on a scheduled date till he returned back home. The most difficult aspect of the scheme is to relate a COVID-19 death to the date of election duty. For any death on account of COVID-19, it is essential for a claimant to establish that the deceased had attended the election duty prior to his death which he contracted while on election duty. The difficulty certainly arises in the determination of the fact of contracting Covid infection but where it is definite that a person prior to diagnosis or death had performed election duty, it is to be assumed that COVID-19 was contracted while on election duty unless proved otherwise. The State Government in order to mitigate the technical hardship considered the entire issue with the assistance of experts and it was found that a COVID-19 patient from the date of disease onset had mortality expectancy within 28 days. There is however, no scientifically proven assessment of time, after the disease onset, within which a person may be diagnosed as COVID positive during the range of mortality expectancy period as derived from experimentation or data.
9. In these circumstances, the State Government in order to have a broader application of the policy decision proceeded to lay down the parameters for entitlement of ex-gratia payment. Paragraph 12 of the impugned Government Order lays down three parameters. Firstly, COVID-19 deaths which occur within 30 days of the election duty would entitle a claim. Secondly, the test reports Antigen/RT PCR positive, blood report or CT Scan would be a sufficient proof to prove the death having occurred on account of COVID-19 and thirdly, an asymptomatic case meeting with the death on account of COVID-19 within 30 days of election duty was also covered under the scheme.
10. In this background, three type of cases have emerged before this Court. In first category, the asymptomatic deaths having occurred within 30 days from the date of election duty on account of COVID-19 and in the second category, where symptoms were detected within a gap of 30 days from the date of election duty but the actual death occurred beyond 30 days from the date of election duty and, thirdly, where symptoms were detected beyond 30 days of election duty and death occurred within 30 days of detection of symptoms or later.
.....................
19. The scientific understanding alone is not decisive to implement the policy of the State which by its very nature is a mix of multiple variables. The State is not to be guided by the laboratory results or publication in journals alone but what is relevant is the impact of a disaster as it may be understood in common parlance not opposed to scientific principles altogether. Scientific temper is itself a matter of concern and debatable. For example the elephant's head on the holy mankind body of 'deity' of Lord Ganesha may or may not be opposed to scientific beliefs but it accompanies our mystical belief from ages and likewise many more. The scientific discoveries and inventions promote scientific temper but failure of science is bound to leave a grey area for our personal faith, traditional usages, beliefs and superstitions until modern science or spiritual attainments unfold the absolute truth. By quoting one instance, it is not meant to hurt anyone's sentiments rather is illustrative of our understanding. Embracing personal faith, usages, belief and superstitions besides scientific temperament is the beauty of Article 21 of the Constitution of India within which the horizons of our freedom grow for an inclusive dignified existence. This, however, does not suggest that the State has a religion as opposed to democracy that guarantees the rule of law to achieve the object of equality amongst the citizens.
20. This Court would thus reject the argument of the State to approach the issue at hand purely on the basis of scientific principles as portrayed on the strength of some publication in the Lancet Journal and expect the State to implement the impugned clause of Government Order dated 1st June, 2021 without discriminating between the deaths of asymptomatic and symptomatic cases on the yardstick of 30 days from the date of election duty. It must be read beneficially for those cases too which were detected within 30 days and in that event, the date of death would become immaterial once it is on account of COVID-19.
....................
22. The ex-gratia payment payable by the State was notified in terms of Section 38 of the Act of 2005 referred to above and this was a promise held to the dependants of any such person who died due to COVID-19 having contracted the infection while on election duty. The compensation for loss of life certainly is an actionable claim and it is for this reason that Section 71 of the Act of 2005 provides as under:-
"71. Bar of jurisdiction of court. --No court (except the Supreme Court or a High Court) shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken, orders made, direction, instruction or guidelines issued by the Central Government, National Authority, State Government, State Authority or District Authority in pursuance of any power conferred by, or in relation to its functions, by this Act.
23. We must remember that the State is not to be driven by the scientific understanding of situation alone but what is relevant is the general perception of people which settles for acceptance. If judiciary cannot form an opinion contrary to law, it equally applies on the executive not to loose sight of the purpose for which laws are made. Scientific reasons are not always sacrosanct but what remains is the purpose and objects of legislation.
24. The Supreme Court as well as the High Courts have been empowered to entertain any suit or proceeding in respect of anything done, action taken, orders made etc. by the respective authorities/ governments.
25. Therefore, for any claim that has trammelled in law through a government order within the scope of Section 12 read with Section 38 of the Act of 2005, the jurisdiction has been vested in the Supreme Court of India and the High Courts to entertain a proceeding of suit or other proceeding, hence this Court is convinced that all the writ petitions filed for payment of ex-gratia amount are maintainable. This is, however, not to suggest that Article 21 of the Constitution of India in the matter of pandemic or disasters imposes a blanket pecuniary liability upon the State as regards the loss of life of citizens or their property to which any negligence of the State authorities or agents or misconstruction of a policy decision arrived at for a larger purpose is an exception. It can, therefore, be inferred that a suit for recovering damages as a measure of compensation can be filed against the State for negligence of its agents within the scope of Section-9 CPC unless specifically barred by law or necessary intendment. Section-71 reproduced above supports the position of law and is well supported by a decision of the apex court reported in AIR 1969 SC 78 (Dhulabhai etc. v. State of M.P. and another).
.....................
28. Thus, we are of the considered opinion that the field of compensation beyond the scope of section 12 (iii) of the Disaster Management Act, 2003 is well protected as against negligence or things not done in good faith irrespect of any measure such as ex-gratia but in the present case it is the claim of ex-gratia payment which we are concerned with.
29. Now coming to the aspect as to whether the victims named in the chart set out hereinabove have died of Covid-19 or otherwise. Sri Ashok Khare has taken us through the apex court judgement passed in the case of Gaurav Kumar Bansal v. Union of India and others. We find that deaths having taken place in the hospitals on account of Covid-19 fully stand the test of certification. The argument that the medical reports mentioning cardiac failure or otherwise may not be attributed to Covid-19 does not impress the Court for the reason that Covid-19 is an infection that may result to the mortality of a person affecting any organ be it lungs or heart etc. Once the admission of deceased persons was on account of Covid-19, the resulting cause being heart failure or dysfunction of any other organ leading to death is immaterial and would nevertheless be treated as Covid-19 death. No other argument was advanced for our consideration, therefore, having given our anxious consideration, we allow the claims in terms of our observations made hereinabove.
30. As a result, all the writ petitions except Writ-C No. 3276 of 2022 (Smt. Khushboo v. State of U.P. and others) are allowed and the opposite parties are directed to release the ex-gratia payment to the dependents entitled thereto within a period of one month failing which the claims so allowed shall be made good inclusive of simple interest @ 9% p.m. from the date of judgement upto the date of actual payment.
The Writ-C No. 3276 of 2022 (Smt. Khushboo v. State of U.P. and others) is accordingly dismissed.
31. Each of the petitioners, whose claims are allowed shall be entitled to a cost of Rs. 25000/- in each case."
6. The three parameters laid down by paragraph 12 of the Government Order dated 01.06.2021 was that (I) Covid-19 deaths which occur within 30 days of the election duty would entitle a claim. (II) The test reports Antigen/RT PCR positive, blood report or CT Scan would be a sufficient proof to prove the death having occurred on account of Covid-19 (III) An asymptomatic case meeting with the death on account of Covid-19 within 30 days of election duty was also covered under the scheme. Thus the Court has also propounded three types of cases emerged and accorded relief to the petitioners therein. In this backdrop, learned counsel for the petitioner states that the issue in hand is squarely covered with the said parameters and the relief is liable to be extended to the petitioner also as her husband had performed his duties in front line when the circumstances were unintelligible and the Covid-19 pandemic was at peak and admittedly he died within 30 days from performing his duties due to Covid-19 infection, therefore, the order impugned cannot sustain and the same is liable to be set aside and the claim of petitioner is liable to be addressed by the Competent Authority in the light of judgement passed in Kusum Lata (supra).
7. The said claim is resisted by learned Additional Chief Standing Counsel for the State respondents on the ground that the order impugned was passed before the judgement and order dated 25.07.2022, considering the relevant Government Orders and thus the claim of petitioner was non suited on the ground that he was not entrusted duties, which were essential for prevention and recourse of pandemic, since the petitioner's husband was plying regular buses before his death w.e.f. 01.06.2020 to 17.06.2020. Once the Division Bench has enlarged the scope and ambit of the said Government Orders and adopted a pragmatic approach for ensuring equal treatment of all, then in case direction is issued definitely the claim of the petitioner would be considered by the Authority concerned in the light of law laid down in Kusum Lata (supra).
8. Heard rival submissions and perused the record.
9. The Division Bench of this Court while considering the case in Kusum Lata (supra) had propounded three parameters. In first category, the asymptomatic deaths having occurred within 30 days from the date of election duty on account of Covid-19 and in the second category, where symptoms were detected within a gap of 30 days from the date of election duty but the actual death occurred beyond 30 days from the date of election duty and, thirdly, where symptoms were detected beyond 30 days of election duty and death occurred within 30 days of detection of symptoms or later.
10. We have considered rival submissions in the light of Kusum Lata (supra). It not in dispute that the petitioner's husband had worked from 19.05.2020 to 30.05.2020 in front line for performing essential duty to ply the vehicles (buses) for taking migrants from quarantine centers to their respective districts and died on 20.06.2020, which is within 30 days from performing the duty in front line. It is not in dispute that the petitioner died due to Covid-19 pandemic, which is substantiated from the patient slip issued by Dr. Ram Manohar Lohiya (Male) Hospital, Farrukhabad. The same is brought on record as Annexure no.3 to the writ petition, which indicates that the patient was found positive in RTPCR test conducted on 21.06.2020 as well as the recommendation/communication by the Assistant Regional Manager, UPSRTC, Farrukhabad dated 27.06.2020 appended as Annexure no.4 to the writ petition. Thus, the ratio determined by the Division Bench of this Court in Kusum Lata (supra), wherein, above three parameters have been propounded, would definitely apply in the present matter.
11. We are of the considered opinion that the benefit is to be extended to the petitioner also, whose husband has performed his duties in front line for curbing the pandemic surge. Therefore, the order impugned dated 31.03.2022 cannot sustain and the same is set aside. The writ petition is allowed. The opposite parties are directed to release the ex-gratia payment to the dependents entitled thereto within a period of one month, failing which the claims so allowed shall be made good inclusive of simple interest @ 9% p.m. from the date of judgement upto the date of actual payment.
Order Date :- 18.12.2023 A. Pandey