IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 25344 of 2004 Between: Smt. Amaravathi, W/o. Late T. Yogeshwar Rao, H.No. 1-3-447/1/3/A, Singadikunta, Uppribasti, Kavadiguda, Hyderabad, and 3 others, ..... PETITIONER AND 1 The General Manager (Hyderabad Works) Gulf Oil Corporation Limited, IDL division, Hyderabad-500018 2 The Secretary to Government of India, Ministry of Petroleum and Chemicals, Central Secretariat, New Delhi. 3 The Assistant Commissioner of Police, Balanagar Division, Hyderabad. 4 The Commissioner of Police, Twin Cities, Hyderabad. 5 The Regional Provident Fund, Commissioner, Barkatapura, Hyderabad. R-5 is impleaded as per court order dated 15/11/2005 in wpmp 31312/05. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an Order, direction, or a Writ, more particularly one in the nature of Writ of Mandamus to call for records and remarks from the Respondents herein relating to blast occurred in DF Plant II, Gulf Oil Corporation Limited, Kukatpally, Hyderabad, on 25-11-2003, resulting in 8 deaths, injuries to 4 persons, and missing of the husband of the Petitioner No.1 herein, Viz., T. Yogeshwar Rao, who was working under the management of ILD Division, Gulf Corporation of India Limited, Hyderabad, (2) Payment of compensation of Rs.15 Lakhs to all the employees, who died in the accident on that date, and to pass appropriate Orders directing the concerned authorities to produce the husband of the Petitioner No.1 herein before this Hon'ble Court, or in the alternative to pay compensation and in the meanwhile to deposit the compensation amount of Rs.15 Lakhs in the bank paying interest till the completion of the Police investigation in the interest of justice to the Petitioner No.1 herein and her children to pass such other or further orders Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for Respondents: Mr.A.Rajashekar Reddy (Asst Solicitor General) The Court made the following : ORDER: (per Hon’ble Sri Justice A. Gopal Reddy) The petitioner-Smt.T.Amaravathi, W/o. T. Yogeshwar Rao, E.No.4217, who was working under the management of ILD Division, Gulf Corporation of India Limited, Kukatpally, Hyderabad, sent a petition on 27.12.2004 stating that a blast occurred in Detonating Fuse Plant – II ( DF Plant – II) in Gulf Corporation of India Limited, Kukatpally, Hyderabad, on 25.11.2003 resulting in death of eight persons, injuries to four persons, and missing her husband. The petitioner submits that in all the cases where the death of the workers was confirmed, an amount of Rs.15,00,000/- was paid and employment was also provided to the kith and kin of the deceased but no such amount has been paid to her, and hence, she seeks appropriate orders directing the concerned authorities to produce her husband before the Court or in the alternative to deposit the compensation amount of Rs.15,00,000/- in the bank by paying interest every month to her till the completion of investigation. The petitioner also filed an affidavit by engaging Sri Jayaprakash Rao, Advocate, reiterating the contents of the letters addressed by her. A counter affidavit has been filed by the first respondent- General Manager, Gulf Oil Corporation Limited, stating that unfortunate incident has taken place in DF Plant–II on 25.11.2003 at about 3.25 p.m during the second shift, which commenced at 2.30 p.m., and ends at 11.20 p.m. In that Plant 15 workmen were employed out of which, 13 workmen have reported to duty on that day. The work commenced as usual for the second shift at 2.30 p.m. As per the routine, the shift in-charge for the second shift Mr. Parasuramaiah inspected the plant by the time the workmen came to commence the work. The shift in-charge met the group leader Mr. Nad Rao and appraised him the work to be carried out and instructed him to allot the work as per the usual schedule. The shift in-charge informed the Group Leader that he is going to DF Plant–I, and he would return to DF Plant-II within half an hour. The shift in-charge, however, had proceeded to Vacuum Drying Plant at building No.F-8 to attend a problem therein. After attending the same, when the shift in- charge was proceeding towards DF Plant-II, he heard explosion at about 3.25 p.m. from DF Plant-II and he rushed to that place. In fact on hearing the sound of explosion several other employees/officers from various other Departments including security staff rushed to the accident spot and commenced fire-fitting operation apart from intimating the same to the Police, Fire Brigade, Explosives Department and the Factories Department. The Employees, who were injured in the said accident, were immediately rushed to the medical unit in the Factory and after giving necessary first aid, were rushed to the hospitals. Out of 15 workmen in the second shift, as per the attendance, two workmen Mr. Nageswar Rao and Mr. P. Balaiah did not report to duty and were absent on 25.11.2003. Therefore, the production activity in the second shift in DF Plant-II commenced with only 13 workmen. Out of the said 13 workmen, 10 workmen were brought out from the destroyed plant by the employees and others who commenced the rescue operations and two of the workmen came out on their own. Out of the 10 workmen who were rescued, five workmen died within the Factory premises, out of the remaining five workmen two workmen were declared brought dead by the hospital authorities and another workman succumbed to injuries after 2 or 3 days. Thus in all eight workmen died as a result of the said accident i.e., seven workmen died on the same day and one workman two days thereafter. Out of the four remaining workmen, three workmen reported to duty a few months after the date of incident. Another workmen died after a period of one year from the date of incident. Thus out of 13 workmen, who reported for duty on 25.11.2003, nine expired as of today, three reported for duty subsequently and are still working, and one workman by name Mr. T. Yogeshwar Rao found to be missing from the date of accident and his body was missing at the scene of accident and in spite of thorough search by the Police together with snuffer dogs, his body remains were not traced. Several search teams were formulated by the first respondent with the help of Police, family members and relatives of the said missing person to search for the body remains of Yogeshwar Rao on the rooftops of the buildings, tree tops, bushes within a radius of one kilometer of the site. But Yogeshwar Rao was not found as dead/alive. The police recovered various pieces of body remains and flesh from the accident spot and sent the same to A.P. Forensic science Laboratory for DNA testing and found none of them matching with the DNA of the said Yogeshwar Rao. In view of the same, the management came to the conclusion that Yogeshwar Rao has not affected by the incident and was not available at the scene of incident, and that he is missing. The Government of A.P. through G.O.Ms.No.315, General Administration (L & O.II) Department dated 04.10.2004 appointed Sri Justice G. Radhakrishna Rao, a retired Judge of the A.P. High Court, to enquire into the circumstances, which led to the aforesaid incident in DF Plant-II. The Cyberabad Police simultaneously had also registered FIR against the respondent-company under Section 304-A & 338 IPC alleging negligence on the part of the respondent-Company and also regarding the issue of the missing person - Mr. T. Yogeshwar Rao. The Union of the IDL Employees Karmika Sangh, a duly registered Trade Union under the Trade Unions Act, also filed an affidavit before the Commission of Enquiry, which is also going into the fact of whereabouts of Yogeshwar Rao. The Government of A.P. had announced ex-gratia of Rs.1,00,000/- to the families of each worker, who died in the accident, and paid to all the workers. The said amount of Rs.1,00,000/- was not disbursed to the family members of T. Yogeshwar Rao since his death was not confirmed at the site of explosion and his case was treated as missing person. For the very same reason the Company had not released the compensation amount of Rs.15,00,000/- to the family members of T. Yogeshwar Rao as was done in the case of other persons who died in the incident, and any further consideration on this aspect will depend upon the out come of the Commission of Enquiry. Heard learned counsel for the petitioner and learned counsel for the respondent. F.I.R.No.965 of 2003 was registered for the offence under Section 304-A and 338 IPC by the Kukatpally Police Station. In the said crime, final report was filed on 19.07.2005 before the IX Metropolitan Magistrate, Kukatpally, Cyberabad, under Section 173 Cr.P.C., stating that the dead bodies of six deceased persons could be identified without any problem, but there was difficulty in identifying the body of the deceased Kashipathy whose body was completely charred beyond recognition. However, the said body could be identified with the help of Rudraksha wore by him being a devotee of Shiva. The injured were immediately referred for treatment to the NIMS, APPOLO and REMEDY Hospitals, and all the bodies of the deceased were shifted to the mortuary of Gandhi Hospital, Secunderabad for holding inquest panchanama. On the next day, inquest panchanama was conducted over the dead bodies and the biological samples collected from the dead body of Shiva Pooja Kashipathi were sent for DNA fingerprinting to establish his identity without any controversy. After postmortem, the bodies were handed over to their blood relatives. Later the scene of offence was minutely examined in the presence of mediators and scene of offence panchanama was conducted and the observations were brought on record and as many as 19 material objects were seized in the presence of mediators. On 18.12.2003 DNA report was received in respect of preserved blood samples of parents of Kashipathi and blood samples of son and brother of Yogeshwar Rao. In the DNA report it is informed that the samples were matched with those of Kashipathi but the samples of son and brother of Yogeshwar Rao were not matched with any of the preserved samples. On the request of police the security personnel of IDL factory continued search operations but nothing found related to Yogeshwar Rao. On 27.12.2003, the then Assistant Commissioner of Police, Balanagar secured the presence of Smt. Amaravathi, W/o Yogeshwar Rao, and his brother Sri Thatikonda Jangaiah, examined them and recorded their detailed statements in which they stated that on 25.11.2003, Yogeshwar Rao left the house in order to attend duty and evidently his colleagues told that Yogeshwar Rao attended duty on that day and after explosion he was not seen anywhere. So far his whereabouts are not known. Whatever was found at the scene were preserved and sent for DNA test but no traces of Yogeshwar Rao were found. In spite of the best possible efforts nothing related to Yogeshwar Rao, could be traced and so far no evidence could be come out during investigation to show that Sri Yogeshwar Rao died in the explosion. In the report it was also stated that the body of Sri Yogeshwar Rao was undetectable and filed the final report for approval enclosing notice sent to the complainant. Sri Justice G. Radhakrishna Rao, who was appointed as Commission of Inquiry to enquire into the matter, submitted a report on 30.03.2005 to the Government stating that it cannot confirm that Yogeshwar Rao died in the incident. The investigation made and the report filed by the Commission of Enquiry clearly discloses that Sri Yogeshwar Rao did not die in the said accident and he is hiding himself to make unlawful gain to extract compensation of Rs.15,00,000/- and job to one of his family members. Normally such a huge compensation will lead to consequences like this. Even if the said Yogeshwar Rao continues in service for the remaining period of 13 years, he could not save such a huge amount and could not get any job to his children. Accordingly, the Commission came to the conclusion that the death of Yogeshwar Rao has not taken place in the blast that was occurred on 25.11.2003. The learned counsel for the petitioner, no doubt brought to our notice the letter of the Assistant Commissioner of Police dated 28.10.2004 wherein he addressed the management stating that the investigation discloses that T. Yogeshwar Rao attended duty on the date of incident, his presence in DF-II plant just before blasting was established, but there is no information as to whether he is alive or dead so far. Already one year has been elapsed and as there is no information that Yogeshwar Rao is alive, the chances that he is dead are more. Taking the said letter addressed by the Assistant Commissioner, as true the learned counsel for the petitioner strenuously contended that there is no reason for Yogeshwar Rao to hide himself and away from the family members for so many years i.e., from the last five years. Therefore, he is deemed to have been dead and the family members are entitled to receive Rs.15,00,000/- towards compensation as was paid to the heirs of other workers whose death was established. He further contends that the findings and recommendations made by the Commission appointed under the Commission of Enquiry Act will not bind the law Courts and the same will help the investigating agency to investigate into the crime under Section 169/170 Cr.P.C. The Courts are not bound by the report or findings of the Commission of Enquiry, as they have to arrive at their own decision on the evidence placed before them in accordance with law. There is no quarrel with the proposition of law as laid down by the Supreme Court in T.T. Antony v. State of Kerala[1] and Dr. Baliram Waman Hirya v. Mr. Justice B. Lentin[2]. The writ petition is taken up for issuance of writ of mandamus as the same will be issued on the petitioner establishing her right to enforce the terms of the agreement entered between the union and the management for payment of compensation of Rs.15,00,000/- on confirmation of death of the deceased workman. Both the police as well as the Commission appointed under the Commission of Enquiry Act came to the conclusion that there is no positive proof to show that the husband of the petitioner, namely, T. Yogeshwar Rao died having involved in the accident, which occurred on 25.11.2003. When the identity of all the eight workers has been established, and after conducting the DNA test showing that the samples were matched with those of Kashipathy, it is highly improbable that the management can go to such an extent to deny the compensation amount of Rs.15,00,000/- payable by it on the death of workman in the accident to the family of Yogeshwar Rao saying that he did not die but he is hiding himself. Further the State Government also has not paid any ex-gratia as was paid to other workers, also supports the case of management that unless the death of the husband of the petitioner is established beyond reasonable doubt, they cannot be awarded Rs.15,00,000/- as compensation. This Court in exercise of jurisdiction under Article 226 of the Constitution of India cannot give such a finding in the absence of any legally acceptable material produced to show that only one view is possible that the deceased died in the said accident. The petitioner, if aggrieved by the report filed by the police under Section 171 Cr.P.C. in Crime No.965 of 2003 it is always open for her to file a protest application before the jurisdictional Magistrate and lead evidence to establish that Yogeshwar Rao died on the date of incident, and can obtain necessary findings on that said aspect from the competent Court having jurisdiction. Further, it is always open for the petitioner to file a suit for declaration to declare that the deceased died, and lead evidence to substantiate her plea and after obtaining such declaration, can insist the management for payment of Rs.15,00,000/- towards compensation. We should also take note of the fact that pursuant to the interim order passed by this Court on 1.03.2006 and further orders passed in the writ petition on 3.12.2007, the son of the petitioner and victim Yogeshwar Rao, namely, T. Sampath Kumar, was directed to be appointed as general worker within a period of two weeks from the date of order dated 3.12.2007. Accordingly, the son of the petitioner accepted the employment offered and joined in service. Keeping in view the above fact, we dispose of the writ petition with the following direction. The son of the petitioner, namely, T. Sampath Kumar, who was appointed as a General Worker, shall be continued in service until the petitioner obtains necessary declaration and file proof of the same for payment of ex-gratia amount of Rs.15,00,000/- before the first respondent-management. It is also open for the management to pay ex- gratia amount of Rs.15,00,000/- as undertaken by them in lieu of payment of compensation amount, after ascertaining the factum of death of Yogeswara Rao. There shall be no order as to costs. ___________________ (A.GOPAL REDDY, J.) _____________ (K.C. BHANU, J.) 1st April, 2009 Js. [1] AIR 2001 SC 2637 [2] AIR 1988 SC 2267