AJN 00-CRI-PIL7.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL PUBLIC INTEREST LITIGATION NO.7 OF 2010 1. Sherbano Azad Khan, presently residing at Dharavi Kumbhar Wada, Shahid Bhagat Singh Road, Balwadi Masjid, Tata Power, Dharavi, Mumbai – 400 017. ) ) ) ) ) ) 2. Parivartan Shikshan Sanstha, a Registered Organization bearing Reg. No.E-19355, Mumbai, having its office at Vijay Nagar, Near Sangam Nagar Bharni, Wadala (East), Mumbai – 400 037. ) ) ) ) ) ) ) ... Petitioners Versus 1. Mumbai Municipal Corporation through the Municipal Commissioner, having his office at Municipal Head Quarters, Opp. C.S.T. Mumbai. ) ) ) ) ) 2. State of Maharashtra, through the Senior Inspector, Sion Police Station. ) ) ) ... Respondents Mr. Bhavesh Parmar i/b Ms. S.A. Mailagir for the petitioners. Mr. S.S. Pakale with Ms. Seena Rawade for respondent 1. AJN 00-CRI-PIL7.10 2 Mr. P.A. Pol, Public Prosecutor for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 5TH AUGUST, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 1ST OCTOBER, 2010. JUDGMENT :- (Smt. Ranjana Desai, J.) 1. Rule. The respondents waive service. By consent of the parties, taken up for hearing forthwith. 2. The first petitioner is the mother of a minor child – Sohail, who studies in New Sion Urdu School, which is a Municipal School established, administered and managed by the first respondent i.e. Bombay Municipal Corporation (for short, “the Corporation”). The second petitioner is an organization registered with the Office of the Charity Commissioner. The objective of the said organization is stated to be providing education to neglected children and also looking after their other welfare needs from time to AJN 00-CRI-PIL7.10 3 time. The second respondent is the State of Maharashtra through the Senior Inspector of Police, Sion Police Station, Mumbai. It is necessary to narrate the facts as stated in the petition which have resulted into filing of the present petition. (a) On or about 15/1/2010, Sohail, aged about 7 years, studying in Second Standard of New Sion Urdu School of the Corporation got injured in his left eye at the instance of another student of the same class in the absence of class teacher, who was required to remain present in the said class to monitor the conduct of the minor children. After Sohail suffered the injury, though the class teacher Ms. Ansari was informed about it, she took no immediate steps for providing medical treatment to Sohail. He was made to sit in the classroom for almost 2-3 hours without any medical treatment. No attempt AJN 00-CRI-PIL7.10 4 was made to contact the members of Sohail's family. Only after the school time was over at about 12.00 noon, the class teacher directed Sohail and his sister, who also is a minor child studying in the same class to go home and proceed for medical treatment if so advised by their parents. On returning from the school, the children approached the first petitioner. The first petitioner then took Sohail to Sion Hospital where she was told that immediate eye operation of Sohail would have to be done and since the equipment at Sion Hospital was not functioning, Sohail should be taken to the KEM Hospital. Sohail was admitted in the KEM Hospital at about 5.00 p.m. although he had received injury in the early morning hours i.e. at about 7.30 a.m. (b) On 16/1/2010, Sohail was operated upon and AJN 00-CRI-PIL7.10 5 medical treatment was provided to him at the KEM Hospital. He was finally discharged from the hospital on 18/1/2010. The first petitioner lodged a complaint with the Corporation as well as at the Sion Police Station specifically detailing the wrongful and illegal act which resulted into the injury being caused to Sohail on 15/1/2010. On or about 22/1/2010, the first petitioner lodged a complaint of the same date with the Assistant Commissioner of Police, Sion Division, informing him that the Senior Inspector of Police, Sion Police Station had not acknowledged the complaint dated 21/1/2010 tendered by the first petitioner. The first petitioner was given an intimation on 22/2/2010 by the Corporation that an inquiry had been initiated in relation to the incident dated 15/1/2010 and that she will have to contact persons on phone numbers AJN 00-CRI-PIL7.10 6 listed at the bottom of the said letter for further queries. The first petitioner contacted the said numbers, but she did not get any positive response. (c) On or about 17/3/2010, the Assistant Commissioner of Police with whom the first petitioner had lodged complaint dated 22/1/2010, sent a letter to the Senior Inspector of Police, Sion Police Station questioning him why no police action has been taken. However, the Senior Inspector of Police, Sion Police Station, did not take any legal action. 3. Since the first petitioner has not got any positive response either from the Corporation or from the second respondent, the petitioners have filed the present petition under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure. It is made AJN 00-CRI-PIL7.10 7 clear in the petition that the petitioners' grievance is not about the other minor child, who has caused the injury to Sohail but it is against the teacher and the school administration, who left Sohail unattended which resulted in the loss of his one eye. The petitioners have inter alia prayed for compensation from the Corporation for permanent loss of vision to the left eye of Sohil; for order directing prosecution of the concerned teacher and the school and the second respondent for not registering the offence. The petitioners have prayed that guidelines / directions be issued regarding safety and security of minor children studying in the schools run by the State and/or the Corporation. 4. It must be noted here that though serious allegations are made against the teacher Ms. Ansari, she has not been impleaded as the respondent. Affidavit in reply is field by Mr. Abasaheb Jadhav, Education Officer of the Corporation. Since Ms. Ansari has not been made a party respondent, Mr. Jadhav has filed this affidavit after AJN 00-CRI-PIL7.10 8 gathering information from Ms. Ansari and on the basis of facts and information given by her. Affidavit in reply is filed by PSI Mr. Kochrekar attached to Sion Police Station. Rejoinder is filed to the said affidavits by the first petitioner. 5. Mr. Parmar, learned counsel for the petitioners submitted that the legal right enshrined in the Constitution of India of providing education by the State encompasses education to children in safe and secure environment being provided at the instance of the State. Counsel submitted that children of tender age who are not able to judge the consequences of their actions cannot be left unattended in the class. Their health and safety must be the prime consideration which should weigh with the school authorities. Counsel submitted that in this case, the school authorities particularly the concerned class teacher has shown complete disregard to the children's safety. The teacher Ms. Ansari has committed breach of duty of care. Counsel submitted that Sohail received AJN 00-CRI-PIL7.10 9 injury on 15/1/2010 at about 9.30 a.m. when the class teacher Ms. Ansari had left the class room. The students called her. She arrived within a span of 5 to 10 minutes after the incident. Ms. Ansari merely asked Sohail to wash his eyes with cold water without proceeding for any medical treatment though she was informed that another child had struck a pencil in Sohail's eye, which had become absolutely red in colour. Water was continuously flowing from the eye. Sohail was not taken to the hospital though Sion Hospital is located within a short distance from the school premises and the compound wall of the school premises is adjoining the compound of Lions Club Hospital. Counsel submitted that Sohail was made to sit in the class room till 12.00 noon without treatment though he was complaining about dizziness and pain in the eye. Counsel submitted that at about 12.00 noon, Sohail was directed to go home with his sister, who is studying in the same class. At about 1.00 p.m., the first petitioner took Sohail to a local doctor, who told her to rush him to the Sion Hospital. Since the machine was not working, Sion AJN 00-CRI-PIL7.10 10 Hospital authorities asked the first petitioner to take Sohail to the KEM Hospital. Sohail was treated at the KEM Hospital from 15/1/2010 to 18/1/2010. On 18/1/2010, Sohail was discharged by the KEM Hospital. A second operation was suggested but the first petitioner was told that there was hardly any chance of Sohail regaining his vision. Counsel submitted that thereafter the first petitioner got Sohail operated upon in Hinduja Hospital after spending all her hard earned money on it. However, the second operation did not restore Sohail's vision. 6. Counsel submitted that had the School authorities referred Sohail to the hospital immediately after the incident, Sohail's eye could have been saved. Counsel submitted that the petitioners have tried to put their grievance before the respondents, however, the respondents have not shown any sensitivity. No offence is registered against Ms. Ansari. Counsel submitted that it is, therefore, necessary for this court to direct the Corporation to pay compensation to the first petitioner's AJN 00-CRI-PIL7.10 11 minor son for permanent loss of vision in his left eye. He submitted that it is also necessary to direct action to be taken against erring police officers and officers of the Corporation. Counsel submitted that it is also necessary for this court to issue guidelines / directions to ensure safety of minor children taking education at the schools run by the State and/or Corporation. 7. In support of his submissions, counsel relied on Avinash Mehrotra v. Union of India & Ors. JT 2009 (5) SC 363, Subr Singh v. State of Haryana & Ors. AIR 2006 SC 1117, M.S. Grewal & Anr. v. Deep Chand Sood & Ors. AIR 2001 SC 3660, Chairman, Railway Board & Ors. v. Mrs. Chandrima Das & Ors. AIR 2000 SC 988, Common Cause, A Registered Society v. Union of India & Ors. 1999 (6) SCC 687, D.K. Basu v. State of West Bengal 1997 SCC (Cri.) 92, Paschim Bangal Khet Mazdoor Samity & Ors. v. State of West Bengal & Anr. AIR 1996 SC 2426, Consumer Education & Research Centre & Ors. v. AJN 00-CRI-PIL7.10 12 Union of India & Ors. AIR 1995 SC 922, I.V. Nagendra Rao & Co. v. State of A.P. AIR 1994 SC 2663, Nilabati Behera (Smt.) alias Lalita Behra v. State of Orissa & Ors. 1993 (2) SCC 746 and M.C. Mehta & Anr. v. Union of India & Ors. AIR 1987 SC 1086. 8. Mr. Pakale, learned counsel appearing for the Corporation, on the other hand, submitted that the petition involves disputed questions of fact which cannot be dealt with by this court in its writ jurisdiction. Counsel drew our attention to the affidavit of Mr. Abasaheb Jadhav, the Education Officer of the first respondent. He submitted that on 15/1/2010, two teachers, out of total nine teachers of the said school, had gone for training course. As a result, Ms. Ansari, Deputy Head Mistress had to attend to one more class in addition to her regular Class II-A in which Sohail is studying. Counsel submitted that being Friday, the school was working from 8.00 a.m. to 12.00 p.m. At about 11.25 a.m., Ms. Ansari gave AJN 00-CRI-PIL7.10 13 homework to Class II-A on the blackboard and she went to another class for supervision. When she came back, she was informed that there was fight between Sohail and one boy and Sohail had sustained injury to his left eye. As there was no visible injury, Ms. Ansari sent the child home at about 12.00 noon along with his sister accompanied by a peon Mr. Kulaye. Counsel submitted that the said incident, in fact, took place at 11.30 a.m. and the child was taken home from the school at 12.00 noon. Counsel drew our attention to the affidavit in rejoinder filed by the first petitioner where she has stated that the incident took place at about 9.30 a.m. after Khichdi was served to the students. Counsel submitted that this runs counter to the statement made in the petition by the first petitioner that injury was suffered by Sohail at 7.30 a.m. Counsel submitted that the incident, in fact, took place at 11.30 a.m. and the child was taken home at 12.00 noon. Thus, the allegation that the child was made to sit in the classroom for two to three hours without any medical treatment is incorrect. Counsel submitted the allegation AJN 00-CRI-PIL7.10 14 that the teacher had neglected her duties, is baseless. Counsel submitted that the teacher has not exhibited any mala fide intention or willful negligence towards the child. Counsel submitted that this unfortunate incident took place when Ms. Ansari was supervising another class. Therefore, it cannot be said that she was negligent or there was any omission on her part in performing her duties. 9. In support of his submissions, counsel relied on Hindustan Paper Corporation Limited v. Ananta Bhattacharjee, 2004 (6) SCC 213, Rajkot Municipal Corporation v. Manjulaben Nakum 1997 (9) SCC 552 and M/s. Kasturi Lal Ralia Ram Jain v. The State of U.P. AIR 1965 SC 1039. 10. Mr. Pol, learned Public Prosecutor took us through the affidavit of Mr. D.N. Kochrekar, P.I. attached to Sion Police Station. Mr. Pol submitted that prompt action was taken by the Sion Police Station and, therefore, the police AJN 00-CRI-PIL7.10 15 cannot be held guilty of any negligence or dereliction of duty. 11. Before we proceed to deal with the rival contentions, we must note that we had requested the Dean of J.J. Hospital to examine Sohail and send report about the status of his eyesight. Accordingly, a report has been submitted by Dr. Lahane, Dean of J.J. Hospital. The Report dated 29/7/2010 states that there is no useful vision in left eye and that left eye is blind. 12. We have to, therefore, examine whether Ms. Ansari was negligent, whether she showed lack of duty of care towards Sohail and if yes, whether the Corporation is vicariously liable for her acts. 13. There is no dispute about the fact that Sohail received eye injury in the school on 15/1/2010 because his classmate thrust a pencil in his eye. It is also not disputed that when the incident occurred the class AJN 00-CRI-PIL7.10 16 teacher was not in the class. She had gone to another class for supervision. It is also not disputed that on Friday, the school timings are from 8.00 a.m. to 12.00 noon and 15/1/2010 was a Friday. In the petition, the first petitioner has stated that Sohail suffered injury at 7.30 a.m. However, in the affidavit in rejoinder, it is stated that Khichdi was served at about 9.00 a.m. and Sohail got injured at about 9.30 a.m. after eating Khichdi. Thus, the petitioners are not consistent about the time of the incident. 14. As against this, according to the Corporation Ms. Ansari wrote the homework on the board at 11.25 a.m. and went to another classroom for supervision because two teachers had gone for training. The incident occurred at 11.30 a.m. When Ms. Ansari came back, she was informed about the incident. The school was to close at 12.00 noon. As there was no visible injury Ms. Ansari sent Sohail home with his sister accompanied by a peon. It is stated in the Corporation's affidavit that on that day, two AJN 00-CRI-PIL7.10 17 teachers out of nine teachers, had gone for training and, hence, Ms. Ansari had to attend to one more class in addition to the regular class in which Sohail was studying. According to the Corporation, Ms. Ansari went out only for a short time that too, for school work. 15. Having ascertained the facts, we shall refer to the judgments cited by the counsel for the petitioners. We shall first refer to the judgment of the Supreme Court in Avinash Mehrotra's case. In that case, the thatched roof of the kitchen of a private school in district Kumbakonam of Madras city caught fire while the cooks were preparing midday meal. Blazing roof collapsed on the children. Many of them died. A petition was filed in public interest in order to protect the rights of life and education guaranteed to all school going children under Articles 21 and 21A of the Constitution of India. The Supreme Court was requested to determine safety standards for schools. While directing implementation of safety measures in all private and government schools, AJN 00-CRI-PIL7.10 18 the Supreme Court observed that in view of the importance of Article 21-A, it is imperative that the education which is provided to children in the primary school should be in the environment of safety. The Supreme Court observed that Articles 21 and 21A of the Constitution require that India's school children should receive education in safe schools and the right to education incorporates the provision of safe schools. 16. We may also refer to the judgment of the Supreme Court in M.S. Grewal (supra). In that case, children of 4th, 5th and 6th standards of Dalhousie Public School, Pathankot had gone for a picnic on the banks of river Beas. Fourteen children along with two teachers went down the river for a considerable distance. The teachers discovered a sudden “dibber” of about 6.8 feet deep by reason wherefor the teachers along with students fell into a great danger. The teachers could save themselves but the children were allowed to play in the danger zone of the water without any caution or any warning being AJN 00-CRI-PIL7.10 19 sounded. As a result, the fourteen children got drowned. A CBI inquiry was ordered by the High Court. In it's report the CBI gave a prima facie finding that the teachers had committed offence under Section 304A of the IPC. The petition was finally heard. The High Court directed the management of the school to pay compensation of Rs.5 lakhs each to the parents of fourteen students who died in the incident. The management of the school challenged the judgment inter alia on the ground that the teachers were found to be negligent and there was not a whisper in the report of the CBI about the conduct of the school. Therefore, the management could not have been directed to pay compensation. The quantum of compensation was also challenged as being excessive. 17. The Supreme Court considered what is negligence and observed as under : “Negligence in common parlance mean and imply `failure to exercise due care, expected of a reasonable prudent person'. It is a beach of duty and negligence in law ranging from AJN 00-CRI-PIL7.10 20 inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something which a prudent and a reasonable man would not do (vide Black's Law Dictionary). Though sometimes, the word `inadvertence' stands and used as a synonym to negligence, but in effect negligence represents a state of mind which however is much serious in nature than mere inadvertence.” 18. About a teacher's duty of care in relation to a child, the Supreme Court observed that while the parent owes his child, a duty of care in relation to the child's physical security, a teacher in a school is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent. The Supreme Court further observed that as a matter of fact, the degree of care required to be taken specially against the minor children stands at a much higher level than adults : Children need much stricter care. The Supreme Court clarified that negligence is an independent tort and has its own strict elements especially in the matter of children – AJN 00-CRI-PIL7.10 21 the liability is thus absolute vis-a-vis the children. Counsel for the school authorities conceded that the concerned teachers were utterly negligent but argued that the school cannot be held liable for an event which did not take place within the school premises. The Supreme Court, therefore, considered the doctrine of “vicarious liability” and observed as under : “Turning attention, however, on to the issue of vicarious liability, one redeeming feature ought to be noticed at this juncture that to escort the children was the duty assigned to the two teachers and till such time thus the period of escorting stands over, one cannot but ascribe it to be in the course of employment – the teachers were assigned to escort the students : the reason obviously being – the children should otherwise be safe and secure and it is the act of utter negligence of the two teachers which has resulted in this unfortunate tragedy and thus it is no gainsaid that the teachers were on their own frolic and the school had done all that was possible to be done in the matter – safety of the children obviously were of prime concern so far as the school authorities are concerned and till such time the children return to school safe and secure after the picnic, the course of employment, in our view continues and thus resultantly, the liability of the school. AJN 00-CRI-PIL7.10 22 19. The Supreme Court then referred to the issue of maintainability of the writ petition under Article 226 of the Constitution. It was contended at the initial stage that the negligence aspect had been dealt with under penal law already and therefore the claim for compensation cannot but be left to be adjudicated by the civil law. It was argued that civil court's jurisdiction ought to have been invoked rather than writ jurisdiction under Article 226 of the Constitution. This point was, however, not pressed. The Supreme Court, after referring to its judgment in Nilabati Behera v. State of Orissa 1993 (2) SCC 746 and other case recorded that the law courts exist for the society and they have an obligation to meet the social aspirations of the citizens since law courts must also respond to the needs of the people. The relevant observations of the Supreme Court need to be quoted. “Currently, judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system – affectation of the people has been taken AJN 00-CRI-PIL7.10 23 note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of civil courts obligation to award damages. As a matter of fact the decision in D.K. Basu has not only dealt with the issue in manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of `justice oriented approach'. Law courts will lose its efficacy if it cannot possibly respond to the need of the society – technicalities there might be may but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice.” 20. In Suber Singh's case, the Supreme Court was dealing with custodial torture and claim for compensation. It is pertinent to note that the Supreme Court came to a conclusion that there was no clear or incontrovertible evidence about custodial torture. The Supreme Court, therefore, did not grant compensation. The Supreme Court left it open to the civil court to award compensation in tort or the criminal court to award compensation under Section 357 of the Code of Criminal Procedure in the AJN 00-CRI-PIL7.10 24 pending