IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 14-8-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.19260 of 2002 and W.P.M.P.No.26555 of 2002 W.P.No.14436 of 2008 and M.P.No.1 of 2008 W.P.No.19260 of 2002 V. Subramaniam @ Balasubramaniam ... Petitioner Vs. 1. The State of Tamil Nadu, rep.by its Secretary to Government, Department of Education, Fort St.George, Chennai - 9. 2. The Collector, Erode District, Erode. 3. M. Yesudoss Head Master (Under Suspension) Panchayat Union Elementary School, Thudupatty, Erode District ... Respondents Prayer in W.P.No.19260/2002: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Mandamus directing the first respondent to pay compensation of Rs.6,00,000/- (Rupees Six Lakhs only) to the petitioner, for the death of his son namely Sathish @ Sathishkumar, aged about 10 years studied 5th standard in the 3rd respondent School, within a stipulated period. W.P.No.14436 of 2008 M. Yesudoss, 83, Ananda Nagar, Chennimalai Road, Perundurai - 638 052, Erode District. ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ Vs. The District Elementary Educational Officer, Erode, Erode District ... Respondent Prayer in W.P.No.14436 of 2008: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records relating to the impugned order of the respondent in Na.Ka.No.4646/A4/2003 dated 14.5.2008 and quash the same and direct the respondent to permit the petitioner to retire from service with effect from 31.12.2001 with all attendant benefits. For Petitioner in W.P.19260/2002 : Mr.N.Manoharan For Petitioner in W.P.14436/2008 & : Mr.P.Rajendran For Respondent in W.P.14436/2008 &: Mrs.E.Ranganayagi, Respondents 1 & 2 in W.P.19260/2002 Government Advocate For 3rd Respondent in W.P.19260/2002: Mr.A.K.Kumarasamy COMMON ORDER In W.P.No.19260 of 2002, petitioner, who is the father of one Sathish @ Sathishkumar, a 5th Standard student of the Panchayat Union Elementary School, Thudupatty, Erode District, prays for issuance of a writ of mandamus directing the first respondent/State Government to pay compensation of Rs.6,00,000/- for the death of his son due to the fall of compound wall of the School. 2. The third respondent in W.P.No.19260 of 2002, who was the Headmaster of the School, has filed W.P.No.14436 of 2008 praying to quash the order dated 14.5.2008 rejecting his request to retire him from service and to pay the terminal benefits, which was not granted due to the pendency of W.P.No.19260 of 2002. 3. The facts leading to filing of these writ petitions are one and the same and the issue involved in both these writ petitions are inter-connected. Hence, both the writ petitions are disposed of by this common order. 4. For the sake of convenience, the parties in this common order are referred to as per their rank in W.P.No.19260 of 2002. 5. The case of the petitioner is that his son S.Sathish @ Sathishkumar, aged 10 years was studying in 5th standard in the Panchayat Union Elementary School, Thudupatty, Erode District, and https://hcservices.ecourts.gov.in/hcservices/ on 13.12.2000 at about 3.50 p.m., the third respondent, in his capacity as Headmaster of the School directed the students including the petitioner's son to clear the ground near the dilapidated compound wall of Noon-Meal Centre Room by removing the grass and shrubs. While clearing the grass and shrubs, a portion of the compound wall fell on the petitoner's son viz., Sathish @ Sathishkumar. On coming to know the said incident, according to the petitioner, third respondent rashly and negligently used a big hammer to break the debris and the hammer hit on the face and mouth of the said Sathish @ Sathishkumar, due to which the petitioner's son died on the spot. An F.I.R was filed in Crime No.505 of 2000 on the file of the Inspector of Police, Perundurai Police Station for offences under Sections 304A and 336 of IPC on the very same day. The Headmaster/third respondent was made as an accused and he was placed under suspension by the proceddings of the District Elementary Educational Officer, Erode, dated 13.12.2000. According to the petitioner, petitioner's son died due to the negligence of the Headmaster of the School, who failed to exercise reasonable and proper care by providing precautionary measures to avoid the death of the deceased Sathish @ Sathishkumar. Petitioner submitted a petition to the respondents on 12.1.2002 and claimed compensation for the death of his 10 year old son. Since no action was taken to pay compensation, petitioner has filed W.P.No.19260 of 2002 praying for a mandamus directing the first respondent viz., the State Government to pay compensation of Rs.6,00,000/- to the petitioner for the death of his son viz., Sathish @ Sathishkumar. 6. The third respondent/Headmaster of the School, who is also petitioner in W.P.No.14436 of 2008 in his affidavit submitted that on 13.12.2000, while working as Headmaster of the Panchayat Union Elementary School, Thudupatty, Perundurai Block, Erode District, he was placed under suspension on the ground that a student died due to the collapse of a dilapidated compound wall. Petitioner filed O.A.No.1013 of 2001 before the State Administrative Tribunal and challenged the order of suspension and an interim stay was granted on 27.3.2001. He was restored to service on 27.12.2001 and was posted at Panchayat Union Elementary School, Velampalayam, and he joined duty in the said School. The third respondent was due to retire from service on reaching the age of superannuation on 31.12.2001. Since criminal case was registered against him in respect of the death of the student viz., Sathish @ Sathishkumar and the criminal case was pending in C.C.No.101 of 2001 on the file of the Judicial Magistrate, Perundurai, petitioner was not allowed to retire by placing him under suspension. Petitioner was acquitted in the said criminal case in C.C.No.101 of 2001 by the Judicial Magistrate, Perundurai, by Judgment dated 1.12.2005 and no appeal was filed against the said acquittal order. According to the third respondent/Headmaster, no departmental action was initiated against https://hcservices.ecourts.gov.in/hcservices/ him and he could have been permitted to retire from the service with effect from 31.12.2001 by revoking the suspension due to the acquittal in the criminal case. The third respondent submitted representation to the District Elementary Educational Officer, Erode, on 13.12.2005 through the Additional Assistant Elementary Educational Officer, Perundurai, and requested to revoke the suspension order and permit him to retire with effect from 31.12.2001. The said representation was forwarded to the District Elementary Educational Officer. Third respondent/Headmaster was paid subsistence allowance at the rate of 50% of his pay. Since no action was taken by the District Elementary Educational Officer, on the representation of the third respondent, he filed W.P.No.7065 of 2008 and challenged the order dated 31.12.2001 not permitting him to retire as well as placing him under suspension. The said writ petiton was disposed of on 24.3.2008 by giving a direction to the District Elementary Educational Officer, Erode, to pass orders on the representation of the third respondent dated 13.12.2005 on merits and in accordance with law within a period of four weeks. The District Elementary Educational Officer, Erode, passed an order on 14.5.2008 and stated that the father of the child has filed W.P.No.19260 of 2002 claiming compensation for which draft counter affidavit has been sent to the Director of Elementary Educational Officer and on approval by the Director, the same will be filed before this Court and only after orders are passed in the above writ petition, orders can be passed on the retirement request of the third respondent/Headmaster. In view of the said stand taken by the District Elementary Educational Officer, Erode, in the said order dated 14.5.2008, both these writ petitions are clubbed together. 7. The third respondent/Headmaster filed counter affidavit in W.P.No.19260 of 2002 contending that on 13.12.2000 when he was conducting classes, three students appeared to have gone near the dilapidated wall of Noon Meal Centre and the wall collapsed and fell on the students. On coming to know the same, teachers as well as the third respondent immediately rushed the injured students to the hospital and unfortunately one student viz., Sathish @ Sathishkumar, son of the petitoner in W.P.No.19260 of 2002 was declared dead by the Doctors. Third respondent gave a complaint at 5.30 p.m. on the same day to the Inspector of Police, Perundurai Police Station and a case was registered in crime No.505 of 2000 under sections 174 Cr.P.C. Third respondent denied the statement that he directed the students to clear the grass and shrubs near the dilapidated wall. He also denied having used hammer to clear the debris. The third respondent further stated that the incident was unfortunate one and the death was not due to his negligence or carelessness. According to the third respondent he wrote several letters to the higher authorities to repair the dilapidated wall. Parents of the students conducted road-roko and agitations and https://hcservices.ecourts.gov.in/hcservices/ consequently a criminal case was foisted against the third respondent which was taken on file as C.C.No.101 of 2001 on the file of the Judicial Magistrate Court, Perundurai, for offences under sections 304A and 336 IPC. The learned Judicial Magistrate, after trial, acquitted the third respondent by judgment dated 1.12.2005 holding that the third respondent had nothing to do with the said accident. 8. The second respondent filed counter affidavit and stated that during the intervel in the afternoon session, Sathish @ Sathishkumar, a 5th standard student and some other students went near the dilapidated wall in the Noon Meal Centre and unfortunately the major portion of the wall collapsed and fell on the pupils. The said Sathish @ Sathishkumar was fatally injured and other students got minor injuries. When the boys and other students cried, the third respondent/Headmaster and some other teachers rushed to the spot and tried to recover the students from the debris immediately. It is also stated therein that the third respondent and other teachers brought the injured persons to the local hospital, where the said Sathish @ Sathishkumar was declared as dead. The other students were discharged from the hospital after getting treatment for the injuries. It is specifically stated in the counter affidavit that the third respondent and other teachers cannot be held responsible for the mishap and it is only accidental and unexpected one, for which the State Government is not liable to pay compensation. It is further stated that the third respondent has not used hammer to break the debris on S.Sathish. The negligence on the part of the third respondent is also denied. 9. The learned counsel appearing for the petitioner submitted that the death of the student having taken place due to the fall of the compound wall, which was in a dilapidated condition, respondents are bound to pay compensation to the petitioner as the petitioner has lost his only son due to sheer negligence and inaction on the part of the respondents in repairing the dilapidated compound wall. The leanred counsel also submitted that the death had occurred during the school hours i.e., at 3.50 p.m. and when the student is in the School premises, the respondents who are to be treated as in loco-parentis, are responsible for the safety of the students and the respondents having failed to maintain the safety of the school buildings, they are negligent in their performance of duties, for which the respondents are bound to pay compensation to the petitioner for the death of his son. 10. The learned counsel appearing for the third respondent/Headmaster submitted that there is no negligence on the part of the third respondent and in fact on 27.10.1999, the third https://hcservices.ecourts.gov.in/hcservices/ respondent sent a representation to the Chairman, Panchayat Union, Perundurai, by stating that the compound wall is in dilapidated condition and immediate steps should be taken to repair the same and painting should be carried out for the entire school buildings and compound walls. The learned counsel also submitted that in the criminal case registered against the petitioner in C.C.No.101 of 2001, the learned District Munsif-cum-Judicial Magistrate, Perundurai, gave a judgment on 1.12.2005 and held that the third respondent cannot be blamed for not repairing the compound wall as he had already submitted the representation to the Chairman, Panchayat Union, and there is no truth in the allegation that the third respondent directed the students to remove the grass and shrubs near the compound wall and that the third respondent is responsible for the death of the said Sathish @ Sathishkumar. The learned counsel further submitted that the Criminal court having given a finding in favour of the third respondent/Headmaster and the death of the said Sathish @ Sathishkumar was due to the fall of the compound wall, third respondent is not liable to pay any compensation and if at all any compensation is to be paid, only the respondents 1 and 2 can be ordered to pay the compensation. 11. The learned Government Advocate submitted that no direction could be issued to the respondents 1 and 2 for the unfortunate accident as the writ petition is not maintainable. 12. I have considered the rival submissions made by the learned counsel for the petitioner in both the writ petitions, learned counsel for the third respondent in W.P.No.19260 of 2002 as well as the learned Government Advocate. 13. Admitteldy ten year old boy by name Sathish @ Sathishkumar, who was the only son of the petitioner in W.P.No.19260 of 2002, died due to the collapse of the compound wall on him on 13.12.2000 at 3.50 p.m. The dilapidated nature of the compound wall was noticed by the third respondent/Headmaster and he requested the Chairman, Panchayat Union, Perundurai, by representation dated 27.10.1999 to repair the compound wall and certified copy of the said letter dated 27.10.1999 was marked as Ex.D-2 in the criminat case. On earlier occasion also the third respondent sent a communication to the Panchayat Union Commissioner on 22.7.1999, which was also marked as Ex.D-1. Both the said documents are produced before me. The third respondent was also acquitted from the criminal charges by the competent criminal Court holding that the third respondent/Headmaster was not responsible for the accident in which the petitioner's son died. A clear finding is given by the criminal Court that there is no deriliction of duty on the part of the third respondent/Headmaster of the School. It is also stated in the criminal Court Judgment that the third respondent was duty conscious and he was not responsible for https://hcservices.ecourts.gov.in/hcservices/ the said accident. The said findings given by the criminal Court has become final. Thus, it is evident that the collapse of the compound wall on the fateful day was not due to the negligence on the part of the third respondnet/Headmaster and only due to the negligence of the subordinate officials of the respondents 1 and 2, who are bound to maintain the Panchayat Union school building and its surrounding in a proper manner, without causing any damage to the students, who are in tender age. 14. The third respondent repeatedly written to the authorities to carry out the repairs of the compound wall and therefore he cannot be blamed for the deriliction of duty. The officials of the respondents 1 and 2, who are bound to maintain the School Buildings and its premises are to be held responsible for not maintaining the school buildings and compound walls in a proper manner. Hence the accident viz., fall of the compound wall has happened only due to the negligent and indifferent attitude adopted by the subordinate officials of the respondents 1 and 2 in not maintaining the school compound wall and its buildings in a proper manner. There is no other version suggested for the death of the petitioner's son viz., Sathish @ Sathishkumar, even by the respondents 1 and 2. In the absence of any other contra averments even as per the counter affidavit filed by the second respondnet, I am of the view that the death of the petitioner's son had taken place only due to the fall of the compound wall, for which the respondents 1 and 2 are vicariously liable to pay compensation to the petitioenr in W.P.No.19260 of 2002. 15. The issue as to whether compensation can be ordered in a writ petition filed under Article 226 of Constitution of India, came up for consideration in the following decisions. (i) The Honourble Supreme Court in the decision reported in AIR 1990 SC 513 (SAHELI a Women's Resources Centre v. Commissioner of Police, Delhi) awarded compensation for the death of a nine year old child due to the beating and assault by the Police Officer. In paragraphs 11 to 15 the Supreme Court held as follows: "11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State https://hcservices.ecourts.gov.in/hcservices/ is responsible for the tortious acts of its employees. Respondent 2, Delhi Administration is liable for payment of compensation to Smt.Kamlesh Kumari for the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri Lal Singh. 12. It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State, (1969 ACJ 28) wherein it has been observed that: “In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment.” 13. In State of Rajasthan v. Vidhyawati (1962 Supp (2) SCR 989 = AIR 1962 SC 933) it has been held that: (SCR p.1007) “Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India.” 14. In Peoples’ Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters ((1989) 4 SCC 730) one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs.75,000 as compensation. https://hcservices.ecourts.gov.in/hcservices/ 15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs.75,000 within a period of four weeks from the date of this judgment. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly." (ii) Maintainability of the writ petitions claiming compensation against the State's inaction is considered by the Supreme Court in the decision reported in (2001) 4 SCC 452 (S.S.Ahluwalia v. Union of India). In paragraph 2, the Supreme Court gave the directions, which reads thus: "....... Therefore, it would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in their jurisdiction by treating the writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts. A copy of the petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action." The above direction was given since the claim in those writ petitions were made directly before the Supreme Court seeking compensation to the victims of riot, which took place in various places due to the assassination of Smt.Indira Gandhi. (iii) In (2004) 8 SCC 610 (National Human Rights Commission v. State of Gujarat) the Supreme Court directed the High Court of Gujarat to consider the claims of riot victims of communal clash https://hcservices.ecourts.gov.in/hcservices/ arose in the State of Gujarat due to the Godhra incident, which reads as follows: "8. In our view, these all are issues which can be raised in the pending writ petitions before the High Court since the High Court would have the jurisdiction to consider each of the grievances raised. In fact, having regard to the nature of the claim it will be more appropriate, that the High Court should deal with the issues raised in the first instance." (iv) The liability of the State to pay compensation even against the destruction of the property during communcal clash or riot or disorder is considered by the Full Bench of this Court in the decision reported in 2006 (5) CTC 97 (P.P.M.Thangaiah Nadar Firm v. The Government of Tamil Nadu). In paragraph 11, the Full Bench framed the following questions: "(1) What is the effect of deletion of Article 19(1)(f) ? (2) What is the liability of the State regarding loss of life or damages to the properties during rioting ? (3) What is the remedy available to a victim, that is to say, whether a Writ Petition can be filed or the victim is required to file a Suit for claiming compensation ?" Question No.2 relates to the liability of the State regarding loss of life or damage to the properties during rioting, which is answered by the Full Bench in paragraph 38 of the Judgment, which reads as follows: "38. .... The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be https://hcservices.ecourts.gov.in/hcservices/ more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional right, would not disentitle the