Patna High Court - Orders
Rabindra Chaudhary vs The State Of Bihar & Ors on 18 May, 2012
Author: Ravi Ranjan
Bench: Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.716 of 2005
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Rabindra Chaudhary, Son of Ram Nagina chaudhary, resident of
village and P.O. Maniyach, P.S. Pawana, District Bhojpur
.... .... Petitioner
Versus
1. The State Of Bihar through its Chief Secretary, Patna
2. The Commissioner - cum - Secretary, Home (Special),
Govt. of Bihar, Patna
3. the Divisional Commissioner, Govt. of Bihar, Patna
4. The District Masgistrate, Bhojpur, Arrah
5. The Additional Collector, Bhojpur (Arrah)
6. The Circle Officer, Sandesh, Bhojpur.
.... .... Respondents
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Appearance :
For the Petitioner : M/s Prem Kumar Jha
Rajesh Kumar Jha, Advocates
For the State : Mr. Rajeev Lochan, AC to GA IX
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CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN
C.A.V. ORDER
14 18-05-2012Through this writ application the petitioner seeks direction to the respondents for making payment of ex-gratia amount of Rs. 1,00,000/- and for an appointment of petitioner's elder son, namely, Chandesh Chaudhary on compassionate ground 2 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 2 / 13 on the post of Grade IV on account of murder of petitioner's innocent minor son Mukesh Kumar Chaudhary by the extremist organization on 7.2.1998.
Shorn of details, facts of the case necessary for consideration of this case are discussed as under:-
The petitioner's minor son, namely, Mukesh Kumar Chaudhary aged about 13 years was found missing from 4.2.1998 after he had gone to attend a cultural function at Dihara.
On 6.2.1998 Sandesh P.S. Case No. 10/1998 was lodged against unknown persons under Sections 363 and 364 of the Indian Penal Code as the petitioner had apprehended kidnapping of his son. However, on the very next day, i.e. on 7.2.1998 the dead body of the aforesaid minor son of the petitioner was recovered from a well situated at Dihara as a result of which Sections 302/34 of the I.P.C. was added in the aforesaid case. The police after investigation submitted chargesheet under Sections 302, 201/34 of the I.P.C. against 11 named accused persons belonging to some extremist group on 6.5.1998. It is stated in the writ petition that deceased son of the petitioner was student of Class VII in Khopira Middle School at Sandesh and his another son is about 23 years of age and has cleared his matriculation examination. 3 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012
3 / 13 The Circle Officer, Sandesh vide letter No. 87 dated 1.6.2000 (Annexure 1) submitted a detailed report with recommendation for payment of Rs. 10,000/- an ex-gratia to the petitioner but even that meager amount is still to be paid to the petitioner. Thereafter, the District Magistrate, Bhojpur vide his letter No. 681 dated 16.11.1998 as contained in Annexure 2 has recommended for sanction of Rs. 20,000/- to the petitioner as the Sub Divisional Officer, Sadar, Ara has recommended for payment of such amount on account of the fact that on 7.2.1998 the extremists have killed the son of the petitioner. Aforesaid matter remained pending before the respondent no. 2, the Commissioner-cum-Secretary, Home(Special) Govt. of Bihar.
The State of Bihar has come up with a circular, as contained in letter no. 25(C) dated 12.1.2001 (contained in Annexure 3) raising the earlier compensation amount that was being paid to the dependants of the deceased in accordance with the earlier notification dated 21.09.1987 (Annexure A to the counter affidavit) from Rs. 20,000/- to Rs. 50,000/- and, further, employment in Government to one person from such victim families in case of death due to terrorist / extremists / caste rivalry or election related violence or mass murder etc. However, the 4 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 4 / 13 case of the petitioner is that the matter had remained pending all along even after a lapse of about 13 years.
Counter affidavit and supplementary counter affidavit has been filed on behalf of the State - respondents. However, during the pendency of this case, when the matter was taken up for hearing on several occasions a counter affidavit has been filed on behalf of the State respondents stating that the file containing recommendation of the concerned District Magistrate is not traceable in the relevant office of the State Government. However, subsequently a supplementary counter affidavit was also filed on behalf of the respondent no. 2 stating therein that though the letter dated 16.11.1998 ( Annexure 2) of the District Magistrate, Bhojpur was not made available to the answering respondent in spite of several reminders to the District Magistrate, Bhojpur and no file related to the matter is available in the Home (Special) Department, however, on the basis of typed copy of the letter which has been filed in the instant writ application a reasoned order has been passed on 25.8.2011 rejecting the claim of the petitioner. The order has been appended as Annexure B to the supplementary counter affidavit.
Thereafter, I.A. No. 8665 of 2011 has been filed by 5 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 5 / 13 the petitioner seeking leave to challenge the aforesaid order dated 25.8.2011 passed by the respondent no. 2 rejecting the claim of the petitioner as such development had taken place during the pendency of the writ application after about 6 years of filing of same in a hurried manner when the matter was taken up for hearing by this Court and certain directions were issued to the respondents. For the reasons mentioned in the order dated 15.12.2011, I.A. No. 8665 of 2011 was allowed and the petitioner was permitted to challenge Annexure 4 / Annexure B. The State authorities were also granted liberty to file counter affidavit to the stand taken by the petitioner for quashing the order dated 25.8.2011 as contained in Annexure B to the counter affidavit as well as Annexure 4 to the aforesaid interlocutory application. Thereafter, the second supplementary counter affidavit has also been filed on behalf of the respondent no. 2 controverting the allegations made in the aforesaid interlocutory application.
I have heard the learned counsel for the petitioner as well as the State and perused the records of this case.
Learned counsel for the petitioner has submitted that at even a meager amount of Rs. 20,000/- after the 6 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 6 / 13 recommendation of the concerned District Magistrate has not been paid to the petitioner for about 13 years and during the pendency of this writ application on 25.8.2011 the claim has been rejected on the sole ground that the petitioner's case is not covered on the sole ground that the demand of allotment of Rs. 20,000/- by the District Magistrate, Bhojpur for payment of ex- gratia to the father of the deceased is not inconformity of the circular dated 21.9.1987 as the deceased was a minor aged about 13 years only and he himself was dependant upon his father for his livelihood whereas the 1987 circular recommends allotment of Rs. 20,000/- to the 'dependants of the deceased' only. Learned counsel submitted that a hyper technical approach has been taken by the respondent no. 2 which is unfair and unreasonable, thus, the order as contained in Annexure 4 should be quashed and the respondents be directed to grant ex-gratia in terms of the revised policy of the State for such purpose and also employment to the elder son of the petitioner in Grade IV as per the latest circular of the State as contained in letter dated 2.1.2001 (Annexure 3) .
Learned counsel has placed reliance upon a decision of the Apex Court rendered in Peoples' Union for Democratic 7 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 7 / 13 Rights v. State of Bihar AIR 1987 Supreme Court 355, whereby and whereunder a direction was given to the State to pay Rs. 20,000/- for every case of death and Rs. 5000/- for injured persons in a case where 21 persons including children had died in police firing. Learned counsel has placed reliance upon another decision of the Apex Court also rendered in S.S.Ahluwalia vs Union of India and ors. (2001)4 SCC.
Per contra, learned counsel appearing for the State has submitted that the death has occurred in the year 1998 when the provisions of the earlier policy of the State Government as contained in letter dated 21.9.1987 ( Annexure A to the counter affidavit) were in application. It is contended that the Sl. 1(ka) of the aforesaid circular permits grant of Rs. 20,000/- to the dependant of the person who has been killed or missing due to extremists violence. However, the deceased being only of 13 years of age, the father cannot be held to be dependant upon him and as such no amount could be payable in view of the provisions contained in Annexure A. So far question of granting employment to one member of the family of the victim is concerned it is stated that such some of the provisions of 2000 and 2001 circular providing for such employment has already 8 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 8 / 13 been held to be void and inoperative by this Court in Dharam Shila Kuer vs. State of Bihar & Ors. 2002(3) PLJR 497 and L.P.A. No. 360 of 2002. The order was challenged in L.P.A. No. 860 of 2002. However, the same was also dismissed by this Court on the assurance given by the learned counsel for the state, on the basis of letter of the Government of Bihar, (Home special Department) bearing no. 11748 dated 11th December, 2008 that as soon as a policy decision is taken in the matter a revised circular containing transparent and uniform rules will be issued without any delay. Thereafter, two circulars one as contained in memorandum no. 1838 dated 17.2.2010 and another as contained in memo no. Misc. (38) - 60 / 2008 - 13786 dated 20.12.2010, have come up. Copies of both the circulars have been produced before this Court by learned counsel for the State.
It has been contended that in the aforesaid circular the ex - gratia has been raised from 50,000/- to 1,00,000/- in case of death of a person in extremists violence or due to other violence as has been described in the circular, however, the provision for granting employment in Class IV post to one for the family members of victim has been deleted as the same 9 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 9 / 13 would not be acceptable legally being not in harmony with the Article 14 of the Constitution of India. Thus, it is contended that there would be no question of granting employment as the same was not available under 1987 circular and such provision under 2001 circular now stands purposely obliterated / deleted in the revised circulars for the reasons mentioned above.
On consideration of rival contention, in my
considered opinion, the reasons stated for rejecting the
recommendation of the concerned District Magistrate for grant of Rs. 20,000/- as ex-gratia in the order dated 25.8.2011 cannot be held to be just and fair. Our Apex Court has noticed in the decision of the Delhi High Court in Bhajan Kaur v. Delhi Admn. (CWP No. 1429 of 1996) in the cases of killing of Sikhs in riots after assassination of Smt. Indira Gandhi holding that in the expanded meaning attributed to Article 21 of the Constitution of India it is the duty of the state to create a climate where the members of the society belonging to different faiths, castes and creeds live together and, therefore, the State has a duty to protect their life, liberty, dignity and wroth of an individual which should not be jeopardized or endangered. In the circumstances the State is not able to do so , then it cannot escape the liability 10 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 10 / 13 to pay compensation to the family of the person killed during such riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution of India.
In the present case the death of the son of the petitioner due to extremists violence is not in dispute and it is also not in dispute that the District Magistrate has recommended for the payment of Rs. 20,000/- However, the respondent no. 2 has rejected such recommendation only on a hyper technical ground that the father of the deceased minor, since cannot be termed as dependant upon the deceased and in view of certain provision in the 1987 circular extending benefit only to the dependants of the deceased, would not be entitled for such grant. In my opinion this stand of the respondent no. 2 cannot be held to be just, reasonable and fair for the reason that even in the absence of any circular or policy it could have easily been held, following the decision of Delhi High Court in Bhajan Kaur v. Delhi Admn. (CWP No. 1429 of 1996) and noticed by the Apex Court in S.S.Ahluwalia vs. Union of India and Ors. (supra), that a duty is cast upon the State to protect the life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. If a person is killed in extremist 11 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 11 / 13 violence then it can easily be held that the members of the family would be entitled for adequate compensation. It is very surprising that such a decision has been taken by the respondent no. 2 on 25/8/2011 when the State Government has already come up with a revised circular dated 20.12.2010 clarifying the provisions of the earlier circular 17.2.2010 by extending the benefit not only to the dependants of the deceased but also the father, mother/guardian of the deceased person irrespective of the fact whether he was adult or minor. When the Government itself has revised the circular by extending such benefit to the father and mother of the deceased even if the deceased was minor, in my opinion it was not open for the respondent no. 2 to take shelter of 1987 circular for rejecting the claim of the petitioner specially when the matter has remained pending for period of about 13 years after the death of the son of the petitioner and when, in the mean time, such circular has been revised.
It could have also easily been held that such
provision under 1987 circular is unreasonable in view of the
provisions as contained in Article 21 of the Constitution of India but that is not required to be done as the State itself has come up 12 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012 12 / 13 with a revised policy and a clarification has been made in the revised circular dated 20th December, 2010 to that extent by extending the benefit to the father and mother and the guardians of the deceased minor.
In the aforementioned facts and circumstances this Court would not have any hesitation in setting aside the order as contained in Annexure 4 of the I.A. No. 8665/2011 or Annexure A to the supplementary counter affidavit, and, accordingly the same is set aside. It is further held that, in view of the issue of grant of ex-gratia to the petitioner having remained pending for about 13 years after recommendation of the concerned District Magistrate as contained in Annexure 2 and in the meantime the amount of ex-gratia has also been revised to the tune of Rs. One lac in case of death due to certain violence including extremists violence, it would be just, proper and fair to grant compensation / ex - gratia to the petitioner in accordance with the revised circular dated 17.2.2010 as well as 20th December, 2010. The respondent no. 2 would be obliged to take a decision in accordance with the revised circulars as mentioned above within three months from the receipt / production of a copy of certified copy of this order.
13 Patna High Court CWJC No.716 of 2005 (14) dt.18-05-2012
13 / 13
However, so far granting employment in
Government in Grade IV to the son of the petitioner is
concerned, in my opinion, the petitioner cannot claim the same in view of the fact that such provision was neither there in the 1987 circular nor has it been included in the latest circular of 2010 as the same has purposely been omitted as discussed above. Therefor, such relief cannot be granted.
Accordingly, this writ application stands allowed to the extent as indicated above.
(Dr. Ravi Ranjan, J) Sanjay Pd. / A.F.R.