WP(C) 1485/2005 BEFORE THE HON’BLE SMT. JUSTICE B.K. SHARMA JUDGMENT AND ORDER The matter relates to payment of compensation on account of death due to electrocution. Both the writ petition being on the set of facts and the relief prayed for also being the same, they have been heard together and are being disp osed of by this common judgment and order. 2. The petitioners are the father and wife respectively, of the deceased pe rsons, on whose death, the claim has been made for payment of compensation. Whil e in the first writ petition, the petitioner is the father of the deceased, in t he second writ petition, the petitioner is the wife of the deceased. 3. As per the story narrated in the writ petitions, the deceased namely Shi rajul Ali and Asgar Ali @ Askar Ali, were the temporary employees of the organiz ation called Meghalaya Ispat Limited in the district of Ri-bhoi, Meghalaya. On 2 5.4.2003, the Meghalaya State Electricity Board (MSEB) personnel were engaged in connecting a high tension electric wire to a post infront of Meghalaya Ispat Li mited. Seeing the deceased employees coming out from their worksite during break hours at about 1.30 PM, the MSEB personnel requested them to render assistance to pull the wire. According to the petitioners, inspite of the refusal to do the work, the MSEB personnel forced them to do so. Accordingly, the said deceased e mployees engaged themselves in the work for about half an hour. Suddenly, the wi re became live, and consequently the deceased died on the spot being electrocute d. It has been asserted that the incident occurred due to the negligence of the MSEB. 4. According to the petitioners, the deceased were aged about 22 and 42 yea rs respectively. After the incident the police registered UD case No. 3/2003 and forwarded the dead bodies to CHC, Nongpoh on the same day for postmortem. The p ostmortem was conducted on 26.4.2003 and the cause of death was reported as hig h voltage electric burn . 5. According to the petitioner, the deceased used to earn Rs. 60,000/- per annum at monthly rate of Rs. 5000/- being the temporary employee of the aforesai d Meghalaya Ispat Limited. Attributing negligence to the MSEB, the petitioners a pproached the MSEB by filing representations on 8.10.2003 and 26.9.2003 respecti vely, claiming compensation to the tune of Rs. 15 lakhs each. Repeated persuasio ns including service of legal notice having not yielded any result, they have in voked the writ jurisdiction of this Court by filing the instant writ petitions. 6. The respondents have filed their counter affidavit in WP(C) No. 1485/200 5 denying the contentions raised in the writ petition. As per the affidavit, the work was being executed with proper care after shutting off power supply to the Low Tension Line. The work involved was removal of 11 KV Fuse Barrel from the 1 1 KVDO Fuse Unit fitted against the 11/0.4 KV 63 KVM sub station feeding the sai d Low Tension Line. As per the affidavit, the works commenced at about 11.30 AM on 25.4.2003 and seeing the employees of the MSEB engaged in the work, few emplo yees including the deceased of their own engaged themselves in the work. Accordi ng to the respondents, there was not even any request, not to speak of forcing t he said employees to do the work. 7. According to the respondents, although the power supply was snapped befo re engaging in the work, but due to sudden strong wind and heavy rain coupled wi th lightning and thunder, another line (11 KV) in the vicinity although separate d by sufficient clearance/distance, got snapped alongwith the shut off Low Tensi on Line (LT Line) on which the work was in progress. As a result, the shut off L T Line touched by the other line became live and as a result the persons engaged in the work suffered injury and the deceased employees died on being electrocut ed. 8. According to the respondents the mishap occurred due to the reasons beyo nd human control and not due to any negligence on the part of the MSEB personnel . As regards the claim of the petitioners for payment of compensation, the stand taken is that since the deceased volunteered for the job, the MSEB is not liabl e to pay any compensation. Their further case is that if the deceased were the e mployees of Meghalaya Ispat Limited and they having rendered their volunteer ser vice to MSEB during the course of employment, at best the liability would be of the employer. 9. In paragraph 5 of the affidavit, the respondents have stated that the au thority of the Board made several attempts to contact the petitioners for identi fication including identification of the Right Thumb Impression (RTI) to verify the contents of illegible Gaon Panchayat’s certificates submitted by the petitio ners in support of the claim of compensation. The petitioners were asked to repo rt to the Board officials, but inspite of repeated endeavor, the petitioners did not show any response. In paragraph 6 of the affidavit, the respondents have st ated that the petitioners’ representation while were under examination and scrut iny, they filed the writ petitions. From the tenor of the stand of the responden ts, their case is that the incident being the result of act of god and there bei ng no negligence, the petitioners are not entitled to any compensation. 10. I have heard Mr. S. Bora, learned counsel for the petitioners as well as Mr. A. Sarma, learned Advocate General, State of Meghalaya assisted by Ms. S. S arma, learned counsel representing the respondents. While Mr. Bora has placed re liance on the decisions as reported in AIR 1987 SC 1086 (M.C. Mehta Vs. Union of India); (2002) 2 SCC 162 (M.P. Electricity Board Vs. Shail Kumari); (2006) 2 GL R 387 (Surya Das Vs. A.S.E.B.) and 2004 Supp (GLT) 406 (Ajit Deka Vs. A.S.E.B), Mr. Sarma, learned AG, Meghalaya has placed reliance on the decision of the Apex Court reported in (2005) 6 SCC 156 (SDO, Grid Corporation of Orissa Ltd. Vs. Ti muda Oram). 11. From the pleadings what has transpired is that there is dispute relating to engagement of the deceased in the works executed by the MSEB. While accordin g to the petitioners, the deceased were forced to work, according to the respond ents they had volunteered for the work. Further, according to the respondents, t he incident occurred due to sudden thunderstorm and heavy rain coupled with ligh tning and thunder. Further stand of the respondents is that the particular line on which the work was being carried out was duly shut off, but the same got elec trified due to the act of God. These are all disputed questions of fact, which c annot be decided in writ jurisdiction. 12. Coupled with the above, the respondents have also questioned the very id entity of the petitioners. As per their stand, inspite of repeated efforts being made, the petitioners could not be contacted. Their identifications also could not be ascertained. Although, the counter affidavit speaks of RTI of the petitio ner in WP(C) No. 1485/2005, but from the writ petition, it is found that the pet itioner has signed the Vakalatnama and the affidavit in Assamese. Further, accor ding to the respondents, when the matter was under their scrutiny and examinatio n, the petitioners filed the instant writ petitions. 13. The decisions on which, Mr. Bora, learned counsel for the petitioners ha s placed reliance speak of liability to pay compensation in case of death or inj ury due to the negligence of a party. The decisions emphasized the obligation of the wrongdoer even in case of negligence to compensate for the harm caused to t he victim. 14. On the other hand, the decision on which Mr. Sarma, learned AG, Meghalay a has placed reliance, while speaking on the principle relating payment of compe nsation under public law, has pointed out the circumstances in which the party a gainst whom, the compensation is claimed may not be liable. Referring to the ear lier decision in Chairman, Grid Corpn of Orissa Ltd, reported in (1999) 7 SCC 29 8, the Apex Court held that in view of denial of the appellants that there was a ny negligence on their part in performance of its duty, awarding of compensation under Article 226 of the Constitution cannot be justified. 15. In the aforesaid case of Chairman Grid Corpn, the Apex Court observed th us: The High Court committed an error in entertaining the writ petitions even thoug h they were not fit cases for exercising power under Article 226 of the Constitu tion. The High Court went wrong in proceeding on the basis that as the deaths ha d taken place because of electrocution as a result of the deceased coming into c ontact with snapped live wires of the electric transmission lines of the appella nts that ’admittedly/prima facie amounted to negligence on the part of the appel lants’. The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. Th e mere fact that the wire of the electric transmission line belonging to appella nt 1 had snapped and the deceased had come in contact with it and had died was n ot by itself sufficient for awarding compensation. It also required to be examin ed with the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. IN vi ew of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of cir cumstances beyond their control or unauthorized intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These q uestions could not have been decided properly on the basis of affidavits only. I t is the settled legal position that where disputed questions of facts are invol ved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases wer e raised for the sake of raising them and that there was no substance therein. T he High Court should have directed the writ petitioners to approach the civil co urt was it was done in OJC No. 5229 of 1995. 16. Similar view was taken by the Apex Court in the case of W.B. SEB Vs. Sac hin Banerjee, reported in (2002) 2 SCC 162. In the said case, the Apex Court has observed thus: The only grievance of the petitioners relates to a observation in the impugned j udgment that two victims had died because of the negligence of the petitioner St ate Electricity Boar. Looking to the fact that the two victims were electrocuted because of an illegal hooking for the purpose of theft of electricity, the peti tioner cannot be held guilty of negligence although they may have stated that th ere is a need for conducting dehooking raids more frequently. 17. The tests and principles involved in the decisions will have to be appli ed upon ascertaining the real fact. From the affidavit, it appears that the resp ondents were engaged in the task. Thus, in my consideration opinion, it will be appropriate for the MSEB to take a decision in the matter, upon taking such evid ence as may be required towards ascertaining the real fact including the identit y of the petitioner, based on which the questions relating to payment of compens ation and the amount thereof will have to be decided. 17. To facilitate the above exercise, the petitioners may approach the respo ndent No. 3, whose office is located bordering Assam. Upon such approach being m ade by the petitioners, the said respondent upon proper scrutiny and examination of the matter arrive at a decision in accordance with law. If the petitioners a pproach the said authority within 45 days from today, the said authority shall d ecide the matter with proper scrutiny and verification and upon consultation wit h the higher authorities, who in turn will render all necessary help to resolve the issue. Entire exercise shall be carried out within four months from the date of approach being made by the petitioners. The petitioners may also produce the relevant documents to facilitate scrutiny of the matter as aforesaid. 18. With the above direction, the writ petitions are disposed of leaving the parties to bear their own costs.