Gujarat High Court
Manubhai Virabhai Dhakda vs State Of Gujarat on 9 October, 2023
NEUTRAL CITATION
R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12437 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANUBHAI VIRABHAI DHAKDA
Versus
STATE OF GUJARAT
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Appearance:
MR PP MAJMUDAR with MR. VIPUL B SUNDESHA(6689) for the
Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/10/2023
ORAL JUDGMENT
1. Present petition is filed with a prayer to quash and set aside charge sheet No.31 of 2020 filed in connection with FIR being C.R.No.I-11193050200505 of 2020 registered with Rajula Page 1 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined Police Station, District-Amreli and Special Atrocity Case No.11 of 2020 pending before the Court of learned Special Judge, Rajula, as well as all consequential proceedings arising therefrom qua present petitioner.
2. Brief facts leading to the present case are that the petitioner is working with Rajula Nagar Palika as a sanitation clerk from last 34 years. The petitioner submits that Rajula Nagar Palika has assigned the contract of cleaning and sanitizing to Om Agency, Amreli, and different workers are engaged from different places for the purpose of cleaning and sanitizing. The petitioner submits that deceased Rajubhai Jivrajbhai Chauhan (Valmiki) and Rameshbhai Punjabhai Babariya (Dalit) were engaged on contract basis for the purpose of cleaning.
2.1 On 13.04.2020, while petitioner was at the Nagar Palika Fire Station, driver Himmatbhai Mahida informed petitioner that something has happened to Rajubhai Jivrajbhai Chauhan (Valmiki) and Rameshbhai Punjabhai Babariya (Dalit) while cleaning a sewer near Mamlatdar office. Thereafter immediately petitioner and Mahesh Khuman reached at the house of original accused-Narshibhai Aatubhai Sankhat near Mamlatdar office and found body of Rameshbhai Punjabhai Babariya (Dalit) lying on the floor and Rajubhai Jivrajbhai Page 2 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined Chauhan (Valmiki) sitting on the floor. Thereafter, Rajubhai Chauhan was taken to the hospital in 108 Ambulance for treatment and he died later.
2.2 The petitioner further states that on 13.04.2020, original accused-Narshibhai Aatubhai Sankhat had visited the office of the Nagar Palika and met with Kamleshbhai Mehta, who is a cashier in the Nagarpalika, for the purpose of getting a sewer cleaned. The petitioner submits that aforesaid Kamleshbhai Mehta had informed original accused-Narshibhai Aatubhai Sankhat that the work of cleaning sewer would be undertaken after inspecting the sewer. However, on the same day in the afternoon, original accused-Narshibhai Aatubhai Sankhat on his own contacted the workers and took them to clean the sewer. Thereafter, without taking any safety measures against gas hazards, the original accused-Narshibhai Aatubhai Sankhat madeboth Rajubhai Jivrajbhai Chauhan (Valmiki) and Rameshbhai Punjabhai Babariya (Dalit) go down the sewer for cleaning and after that, both the workers died of suffocation in the sewer.
2.3 In fact, the original accused-Narshibhai Aatubhai Sankhat despite having knowledge of deceased belonging to Schedule Caste/Tribe engaged them in cleaning the sewer/drainage without taking any safety measures resulting Page 3 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined into their deaths. As far as petitioner is concerned, he is an employee of the Nagarpalika and is serving with the institution since last 34 years. The petitioner has put in unblemished record of service and has rendered his work with utmost honesty and due diligence. In fact, the petitioner was the original informant of the incident and has registered the F.I.R. for the incident. However, without there being any evidence against the petitioner, he is shown as accused no.3 in the impugned charge-sheet.
2.4 The ingredients of alleged offences are clearly not made out qua the petitioner. The petitioner had no role to play in commission of the alleged offences and though petitioner had informed about the incident to the police, however, in the charge-sheet without any material, petitioner is shown as an accused. The statements forming part of the charge-sheet also do not make out any case against the petitioner. 2.5 The petitioner submits that there is absolutely no material to show that the petitioner is the person who had asked the deceased workers to get into the drainage for cleaning. In fact, petitioner had not assigned the work of cleaning the drainage/sewer at the house of original accused Narshibhai Sankhat and therefore, the allegations qua are false. The petitioner submits that the petitioner is not Page 4 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined responsible for taking and dropping the Nagar Palika vehicle and thus, the allegation in this regard is also not plausible. Thus, petitioner is falsely and wrongly made an accused in the charge-sheet.
3. Heard learned advocate Mr.P.P.Majmudar appearing with Mr.Vipul Sundesha, learned advocate for the petitioner and Mr Dhawan Jaiswal app for the respondent state.
4. Mr.P.P.Majmudar, learned advocate for the petitioner has submitted that no offence is made out against the present petitioner under the provisions of Section 304 and 114 of IPC or under sections 5(1)(b), 7, 8 and 9 of the Prohibition of Employment As Manual Scavengers and Their Rehabilitation Act, 2012 at as well as under the provisions of Section 3(2)(v) and 3(1)(j) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He has submitted that the present petitioner is serving in Nagar Palika and is in-charge of the vehicles to be provided to the employees to reach at the place where repairing of the drainage line is to be carried out. He submitted that the petitioner has to arrange the vehicle and concerned employees will go into such vehicle and carry out the work at the place of blockage or cleaning of the sewage line or drainage line, in the area of Nagar Palika. He has submitted that on the Page 5 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined date of incident two employees, working on contract basis, went to the place of a private person to clean the pit privy (khaal kuvo) and lost their lives. He submitted that present petitioner is arraigned as accused no.3 in said case. He submitted that, in fact, the petitioner himself has filed the complaint at the relevant point of time. Thereafter, he has been arraigned as accused no.3 by the investigating agency. He submitted that the petitioner is working as a Sanitation Clerk in the municipality and his responsibility was to arrange the vehicle for the employees.
4.1 Learned advocate Mr.majmudar has further submitted that on the date of the incident neither the petitioner was aware about the visit of the employees at the place of incident nor he was informed by anybody. He submitted that the employees went on their own at the place of incident and the petitioner came to know about the incident when he was called by somebody to reach to the place. Accordingly, the petitioner went to the place of incident and arranged for treatment of the employees, who were injured in the incident. Therefore, the petitioner was neither present at the time of incident nor he has sent the employees to the place of incident. He submitted that merely because the petitioner is working as a Sanitation Clerk he is wrongly implicated in the crime in question. He also submitted that there is no Page 6 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined mens rea nor any ingredients of the offences, as alleged, have been satisfied against present petitioner. He furtehr submitted that the petitioner is not directly responsible for any act, on the contrary, he has tried to help the injured persons. In view of above, he prays to quash impugned FIR. 4.2 He has relied upon decision of co-ordinate Bench of this Court in Criminal Misc. Application No.21097 of 2015 dated 7.3.2017 and another decision of co-ordinate Bench in Criminal Misc.Application No.18797 of 2020 and submitted that in view of above decisions and considering the material available on record, there is no material remotely connecting present petitioner with the crime in question as there is no criminality found against him.
5. Learned APP, Mr.Dhawan Jaiswal has strongly opposed the contentions raised by the petitioner. He has submitted that from the statement of the employees the petitioner is responsible for arrangement of the vehicle for transportation of workers and, it can be said that on the date of incident, due to his negligence the incident has occurred. He has submitted that since the investigation is already concluded the petitioner can put his defence during the course of trial. He has also submitted that since prima facie case is made out against the petitioner, this Court may not exercise its Page 7 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined powers under Section 482 of Criminal Procedure Code, which should be exercised very sparingly in view of various decisions of the Honourable Apex Court.
6. I have considered the rivals submissions, decisions cited at bar and the material placed on record. Before proceeding further, this Court may refer to the observations of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has illustrated the cases wherein inherent powers under Section 482 of the Criminal Procedure Code could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice and observed as under:-
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any Page 8 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code. Page 9 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023
NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. So far as present case is concerned, it is an undisputed fact that the petitioner is working as a Sanitation Clerk in the Municipality and he is responsible for arrangement of vehicle for transportation of sanitation workers, whenever they have to go for their work. On the date of incident, it appears from record, that neither the petitioner went to the Page 10 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined place of incident nor any vehicle was arranged by him to send such employees. It seems that the employees went on their own to the place of incident of the citizen, who wanted to clean the pit privy ( khaal kuvo). Considering this aspect and considering the fact that the charge sheet is filed and material available on record, more particularly, statements of co-employees, nothing is found whereby it can be said that the petitioner was present at the time of incident or prior to the incident. It has also not come on record that he has arranged the visit of the deceased persons at the place of incident. On the contrary, he was not aware about the visit of the employees and he was called after the incident has happened. Thereafter, he went to the place of incidet and assisted in shifting the injured persons to the hospital. Considering the provisions of the alleged offence against the present petitioner, it can be said that no offence is made out against the present petitioner.
"Indian Penal Code.
114. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.Page 11 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023
NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined .......
304. Punishment for culpable homicide not amounting to murder.
Whoever commits culpable homicide not amounting to murder, shall be punished with 1 [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Prohibition of Employment As Manual Scavengers and Their Rehabilitation Act, 2012
5. Prohibition of insanitary latrines and employment and engagement of manual scavenger.
(1) Notwithstanding anything inconsistent therewith contained in the Employmentof Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (46 of Page 12 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined 1993), no person,local authority or any agency shall, after the date of commencement of this Act,--
(a) .................
(b) engage or employ, either directly or indirectly, a manual scavenger, and everyperson so engaged or employed shall stand discharged immediately from any obligation,express or implied, to do manual scavenging.
..........
7. Prohibition of persons from engagement or employment for hazardous cleaning of sewers and septic tanks. No person, local authority or any agency shall, from such date as the State Government may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank.
8. Penalty for contravention of section 5 or section 6. Whoever contravenes the provisions of section 5 or section 6 shall for the firstcontravention be punishable with imprisonment for a term which may extend to one year orwith fine which may extend to fifty thousand rupees or with both, and for anysubsequentcontravention with imprisonment which may extend to two years or with fine which mayextend to one lakh rupees, or with both. Page 13 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023
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9. Penalty for contravention of section 7. Whoever contravenes the provisions of section 7 shall for the first contravention bepunishable with imprisonment for a term which may extend to two years or with fine whichmay extend to two lakh rupees or with both, and for any subsequent contravention withimprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both.
The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. Punishments for offences atrocities. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
..........
(j) makes a member of a Scheduled Caste or a Scheduled Tribe to do manual scavenging or employs or permits the employment of such member for such purpose; ............
3.(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years Page 14 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined or more against a person or property 2[knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine; [(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;]"
8. Considering the facts of the case and provisions of law, as reproduced herein above, it can be said that no offence is made out against the present petitioner. On the contrary, initially the petitioner has filed the complaint as a complainant and thereafter, he was arraigned as an accused by the investigating officer. There is no mens rea involved in the present case so far as present petitioner is concerned. I also find that there is no active participation by the petitioner in the commission of the offence. Accordingly, prima facie no case made out against present petitioner.Page 15 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023
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9. In the decision cited by learned advocate for the petitioner rendered in Criminal Misc. Application No.21097 of 2015, it is observed as under:-
"16. Clause fourthly covers those class of cases which are very dangerous in themselves and the act is done with the knowledge that it must, in all probability, cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, the provisions of clause fourthly are required to be attracted only when the offender knows that his act is so imminently dangerous that it would, in all probability, cause death or, at least, such bodily injury, which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that clause fourthly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives of many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from the illustration (d) of Section 300 of the IPC.
17. The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon the nature of the act and its evident risk to human life. It must be an act in which death of human is certain or almost so, and it would cause surprise if the result was otherwise."Page 16 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023
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10. In the decision cited by learned advocate for the petitioner rendered in Criminal Misc. Application No.18797 of 2020, it is observed as under:-
"8. Thus, it is held that in the first instance, no first information report can be registered for the offence under section 304 of the Indian Penal Code. Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. The Coordinate Bench has further held that if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300, but is covered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act comes under clause 4 of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. Thus, the knowledge on the part of the accused must be of highest degree of probability. In the present case, neither there was any intention on the part of the petitioner nor any knowledge that the act of entry of the deceased in the dry chamber will be so imminently dangerous which could result into their death. The petitioner was not having any knowledge that a valve chamber will be having hazardous gases. Thus, the offence under section 304 of the IPC is required to be quashed. Furthermore vide various orders passed by the Page 17 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined Coordinate Benches of this Court, the FIR's have been quashed and set aside for the offence punishable under section 304 of the IPC on the ground of settlement.
9. With regard to the offence registered under the provision of Manual Scavenging Act, it is the case of the State that the petitioner was responsible for the death of the workers, since he had instructed them to enter the chamber without any safety gear. As noted herein above, in the panchnama, it is revealed that the deceased had entered a dry chamber to operate the valve and they were also wearing safety helmets. During the pendency of the hearing of the present petition, this Court had called for the papers of the investigation along with the Report. After a perusal of the papers and the panchnama, this Court had directed the investigating officer to obtain specific report from the Surat Municipal Corporation with regard to the construction and usage of the chamber in which the deceased were asked to enter. The panchnama reveals that the Chamber was dry and did not contain any water and the deceased were also wearing safety helmets. The Investigating officer has obtained the report dated 23.12.2020 from the Corporation. The same reveals that the Chamber in which the deceased had entered was dry. It is also specified that the "It was a valve chamber. Does not carry Sewage in open Channel. It was a valve chamber and not a septic tank". Thus, the panchnama and the Report of the Corporation indubitably Page 18 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined concludes that the chamber in which the deceased had entered did not contain any sewage water and was a dry chamber and only constructed for the operation of the valve of the sewage pipe line. The deceased were also provided with safety helmets.
10. Thus, the established facts are that the deceased had died due to suffocation of unknown gases and the chamber in which they were asked to enter was a valve chamber only and the same was dry and was not constructed for the storage of sewage water. In light of these facts, I may at this stage examine the provisions of the Manual Scavenger Act.
Section 2 (p) and (q) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 stipulates definitions of 'septic tank' and 'sewer'.
(p) "Septic tank" means a water-tight settling tank or chamber, normally located underground, which is used to receive and hold human excreta, allowing it to decompose through bacterial activity;
(q) "Sewer" means an underground conduit or pipe for carrying off human excreta, besides other waste matter and drainage wastes;Page 19 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023
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11. In the present case, the dry valve chamber constructed by the Corporation will not fall within the definition of "septic tank" and "sewer".
SECTION 7: Prohibition of persons from engagement or employment for hazardous cleaning of sewers and septic tanks No person, local authority or any agency shall, from such date as the State Government may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank. Thus, Section 7 of the Act prohibits engagement of any person for hazardous cleaning of a sewer or a septic tank.
12. I may with profit refer to the Rules framed under the Manual Scavengers Act, 2013. The relevant Rules of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 (the Rules) are as under:
Rule 2(g) "Protective gear" means personal safety gear and safety devices that are to be provided, worn or used by safai karamcharis or sanitary workers in respect of cleaning of sewers and septic tanks that may be necessary for the specific nature of work to be carried out, as including and not limited to the materials referred to in Rule 4 to (i) avoid any exposure of human skin to substances which can lead to diseases, along with all breathing equipment which Page 20 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined prevents inhalation of gases which can lead to diseases, and, also includes any sensory equipment for detection of gases present inside the sewers or septic tanks; (ii) avoid any injuries while carrying out cleaning work.
RULE 3:
(1) No person shall be allowed to clean a sewer manually, with the protective gear and safety devices under these rules except
(a) for the removal of concrete or FRP (Fibre Reinforced Plastic) or damaged manhole door where mechanical equipments cannot be put into operation.
(b) for inter-linking the newly laid sewer main with the existing sewer main, in case of sewer of size of more than 300 mm diameter.
(c) for removal of submersible pump sets fixed at the bottom of the suction wells.
(d) for the reconstruction of the manhole or rectification of the sewer main.
(e) Any circumstance, when it is absolutely necessary to have manual sewage cleaning, after the CEO of the local authority has permitted to do so after recording in writing the specific valid reasons for allowing such cleaning. (2) For the purposes of clauses (c) and (d) of sub-rule (1), before allowing entry of a person in the sewer, sewage shall be totally emptied.
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NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined RULE 6:
(1) All protective gear and safety devices under these rules shall be checked every six months and necessary repair or replacements shall be made by the employer who engages a person for cleaning a sewer or a septic tank.
(2) Comfortable bodysuits shall be made available to the worker who has to enter sewers or septic tanks for their cleaning. The employer shall provide full body suits to workers entering manholes of depth more than five feet and alternatively, partial fishing wader body suits to those entering manholes of depth less than five feet.
(3) The employer shall also ensure the following safety precautions before a person is engaged in the cleaning of a sewer or a septic tank, namely
(a) There shall be a minimum of three employees present all the time, one of whom shall be a supervisor;
(b) The atmosphere within the confined space shall be tested for oxygen deficiency and toxic and combustible gases including but not limited to poisonous gases like Hydrogen Sulphide, Carbon Monoxide, Methane, and gasoline vapours, through detection tests including the following
(i) Lowering a detector lamp into the manhole,
(ii) Inserting wet lead acetate paper which changes colour in the presence of hazardous gases, Page 22 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined
(iii) Detection of gases through gas detector masks.
13. A close reading of the provisions of the Act and Rules signify that they are framed for the protection of the worker who are engaged in cleaning of sewage or septic tank which contain sewage water. Rule 3(2) of the Rules stipulates before allowing entry of a person in the sewer, sewage shall be totally emptied. Rule 6 (1) and (2) of the Rules prescribes of providing protective gear, safety devices body suits and partial fishing wader body suits to the persons who are engaged in cleaning the sewer of a septic tank or man holes. Sub-Rule 3 of Rule 6 mandates that the employer shall ensure the safety precautions before a person is engaged in "cleaning of a sewer or a septic tank". Clause
(b) requires that atmosphere within the confined space shall be tested for oxygen deficiency and toxic and combustible gases including but not limited to poisonous gases like Hydrogen Sulphide, Carbon Monoxide, Methane, and gasoline vapours, through detection tests. Clause (b) of sub-rule 3 of Rule 6 of the Rules prescribes mandatory testing and detection of hazardous gases of sewer or a septic tank. The tenor of the Act and Rules imply that the same are promulgated for the protection, safety and wellbeing of a person who enters a "sewer or a septic tank or manhole"
filled with sewage for the purpose of cleaning, repairing or emptying. The provisions also imply that such septic tanks/sewer or manholes are meant for storage and flow of Page 23 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined the sewage water. In the present case, the deceased had indubitably succumbed to the hazardous gases, although it was neither a 'sewer or septic tank or a manhole'. There was no sewage water present in the chamber and it was a dry valve chamber. The Corporation has also admitted that it was neither a septic tank nor a sewerage tank. Thus, the valve chamber will not fall within the definition of "septic tank" or "sewer" as defined under section 2(p) and (q) of the Manual Scavenger Act. Hence, there was no reason to verify that the same could have contained hazardous gases as per Rule 6(3)(b) of the Rules. In wake of such incontrovertible fact, the provisions of the Manual Scavenger Act will not get attracted. Unfortunately, neither the Act nor the Rules address the exigencies which are highlighted in the present case. The Act and Rules are blissfully silent in redressing the plight of such workers who are made to enter empty chambers or cavity presuming that the same are safe devoid of any hazardous material or gases. In absence of any such provisions prescribing safe guards in case of the dry underground chambers, the employers like the petitioner will escape from the rigors of the Act and the Rules. The only counter would be an appropriate amendment in the provisions of the Act and the Rules which can address the plight of the workers who risk their lives for the advantage and betterment of the society at large.Page 24 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023
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14. Thus, the offence under the provisions of the Manual Scavenging Act will not get attracted in the present case. Furthermore, the family members of the deceased including the complainant have amicably settled the dispute. The affidavits of settlement are produced on record. For the foregoing reasons, the present petition succeeds. The impugned FIR and all the subsequent proceedings are quashed and set aside. Rule made absolute."
11. Considering the above position of law and considering the facts of the present case, it can be said that no role is played by the present petitioner in commission of the unfortunate incident neither he is liable for any statutory or vicarious liability. No material is found against the petitioner except the fact that his duty was to provide the vehicles as a Sanitation Clerk for transportation of the workers. In the incident in question, he has not provided any vehicle nor he has actively participated in the process of cleaning of well where the incident had taken place. Therefore, the petitioner cannot be said to have committed no primary physicals is made out against the petitioner as alleged in the FIR.
12. Considering the disease and in the case of bhajanlal and the facts of the present case present petition is required to be allowed. Accordingly present petition is allowed. The impugned FIR being C.R.No.I-11193050200505 of 2020 Page 25 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023 NEUTRAL CITATION R/SCR.A/12437/2021 JUDGMENT DATED: 09/10/2023 undefined registered with Rajula Police Station, District-Amreli, and Special Atrocity Case No.11 of 2020 pending before the Court of learned Special Judge, Rajula, as well as all consequential proceedings arising therefrom qua present petitioner are quashed and set aside.
Sd/-
(SANDEEP N. BHATT,J) R.S. MALEK Page 26 of 26 Downloaded on : Fri Oct 13 20:36:01 IST 2023