Case: Delhi Jal Board Vs. National Campaign Etc

3. The laws enacted by Parliament and State legislatures provide for payment of compensation to the legal representatives of those killed in air, rail or motor accident. The legal representatives of a workman, who dies while on duty in a factory/industry/establishment get a certain amount of compensation. Even those who are killed in police action get compensation in the form of ex-gratia announced by the political apparatus of the State. However, neither the law makers nor those who have been entrusted with the duty of implementing the laws enacted for welfare of the unorganized workers have put in place appropriate mechanism for protection of persons employed by or through the contractors to whom services meant to benefit the public at large are outsourced by the State and/or its agencies/instrumentalities like the appellant for doing works, which are inherently hazardous and dangerous to life nor made provision for payment of reasonable compensation in the event of death.4. Since the legal representatives of the persons who work in the sewers laid or maintained by the State and/or its agencies/instrumentalities on their own or through the contractors and who get killed due to negligence of the employer do not have the means and resources for seeking intervention of the judicial apparatus of the State, the National Campaign for Dignity and Rights of Sewerage and Allied Workers, which is engaged in the welfare of sewage workers filed Writ Petition No.5232/2007 in the Delhi High Court to highlight the plight of sewage workers many of whom died on account of contemptuous apathy shown by the public authorities and contractors engaged by them and even private individuals/enterprises in the matter of providing safety equipments to those who are required to work under extremely odd conditions.After taking cognizance of the averments contained in the writ petition, the Division Bench of the High Court issued notice to the respondents and also made a request to one of the Judges - Dr. Justice S. Muralidhar, to make an attempt to find out workable solution to the problems faced by sewage workers. The learned Judge heard the representatives of the writ petitioner, appellant and other instrumentalities of the State, examined the documents produced by them and passed order dated 5.4.2008 incorporating therein several suggestions for protection of the workers engaged in cleaning of manhole etc.. The Division Bench of the High Court, considered the suggestions made by Dr. Justice S. Muralidhar, the affidavits and documents filed by the appellant and the New Delhi Municipal Council and passed detailed order dated 20.8.While the Committee constituted by the High Court was examining various issues concerning the sewage workers including their health and safety, Hindustan Times (Metro edition) dated 26.3.2009 reported that as many as 6 sewage workers had died in Delhi in the month of March 2009 due to inhaling of toxic gasses in the manholes because they did not have protective gears. Two of the workers died in the area of Alipur (Narela), two in the area of Bawana and one each in Sector 6, Narela and Delhi Zoo, Sunder Nagar, New Delhi. Four of these deaths occurred within the jurisdiction of appellant - Delhi Jal Board, Delhi Development Authority and Delhi State Industrial Development Corporation and two deaths occurred in private farm house - Katyal Farm House, Bakhtawarpur Road, Narela.7. After taking cognizance of the aforesaid report, the Division Bench of the High Court directed appellant - Delhi Jal Board and the Delhi Development Authority to file their respective affidavits. Notices were also issued to Delhi State Industrial Development Corporation, the owners of private farm house and the police department.8. In the affidavit filed by him, Sri Sukhai Ram, Chief Engineer, Delhi Jal Board claimed that the person who died on 15.3.2009 was a painter and not a sewage beldar. He gave out that the victim was engaged by a sub- contractor, namely, Kanta Prasad who, in turn, had been engaged by M/s. AARSELF Michigan-JV, to whom contract was awarded for rehabilitation of sewer in the zoo area. According to Shri Sukhai Ram, the victim fell into the sewer because he became unconscious after inhaling the fumes of epoxy. He also stated that a sum of Rs.1.71 lacs was paid to the family of the victim by the contractor. In the affidavits filed on behalf of the Delhi Development and the Delhi State Industrial Development Corporation, it was claimed that the deceased workers were not employed by or through them. However, during the course of hearing, learned counsel appearing on behalf of the appellant and other authorities conceded that as per the FIRs., the workers had died because they were not provided with protective gears before being asked to work in the manholes.9. After considering the affidavits filed by the State agencies and the arguments made before it, the Division Bench of the High Court passed order dated 21.4.2009 (impugned order), the relevant portions of which read asgoing through the FIR, however, it is clearly seen that the affidavit filed on behalf of DJB is completely misleading. It is seen from the FIR that the victim Rajan and another workman, namely, Raj Kumar went inside the sewer through stairs. Before going down they had asked the official of the contractor for safety equipments and oxygen masks, but the official of the contractor did not pay heed to their requests. It is further seen from the FIR that they were working in the same manner for the last one week but despite repeated requests made to the contractor they were not provided with safety equipments and oxygen masks. It is further seen that they were painting the sewer and due to presence of toxic gases and lack of oxygen in the sewer, Rajan became unconscious and ultimately declared to be dead when he was taken to the hospital. The other workman was feeling giddy and fell down and sustained injuries on his face.Learned counsel appearing for the DJB conceded that protective equipments were not provided by the DJB in spite of the directions issued by this Court vide order dated 20th August, 2008. According to him the responsibility was of the contractor to provide safety equipments as per the contract. It is clear that the sewage workers were left at the mercy of the contractor who failed to take basic precautions resulting in death of workman Rajan.Insofar as the death that occurred within the jurisdiction of DDA, it has been stated in its affidavit that no work of de- silting of sewage lines or otherwise was in progress in the concerned division of DDA in which the accident took place. It was stated that possibly some local residents had employed a person by the name Rakesh Kumar on their own to check the particular manhole, in which the incident took place. During the course of arguments, however, learned counsel for DDA conceded that the affidavit does not reflect the correct position. He admitted that Rakesh Kumar Saini was entrusted with the work of desilting of the sewage lines, but according to him the contract was completed in December, 2008. Further, according to him though the contract provided for a warranty period six months, the contractor could not have carried out any further work in the sewage line without prior permission of the DDA. Counsel states that the DDA had not provided protective gears and equipments as directed by this Court because under the contract it was the responsibility of the contractor to provide the protective gears and equipments.Insofar as DSIDC is concerned, it is seen from the FIR that four workers were involved in the incident. Two workers namely, Manpal and Ram Braj Yadav died while two others namely, Shyambir Sarvesh and Brajpal Yadav were injured. They were working under the contractor engaged by the DSIDC i.e. M/s Arun Kumar Goel. It is seen from the FIR that the workers were not provided with protective gears and safety equipments.As already noted, two deaths occurred in Katyal Farms House, Bhaktwarpur Road, Narela. It is seen from the FIR that the workers who died while carrying out the work of cleaning the sewer were employees of the contractor by name Sunil, engaged by the Farm House owners. Learned counsel appearing for the farm house owners state that the owners have paid a sum of Rs. 1 Lac in ex-gratia to the families of each of the victims. At the outset it must be stated that both DJB and DDA have not complied with the directions issued by this Court on 20 August, 2008, particularly directions for providing protective gears and equipment and for issuing employment cards to the contractors workers. Let notice be issued to the CEO, DJB and the Vice Chairman, DDA to show cause as why action for contempt should not be initiated against them under the Contempt of Courts Act for violating the directions issued by this Court vide order dated 20th August, 2008. Notice shall be returnable on 27th August, 2009.DDA and DSIDC are directed to deposit the amount of compensation of Rs.2.5 lacs per worker with the High Court Legal Services Committee (DHCLSC) for being paid to the families of the victims within four weeks. It will be open to the DDA/DSIDC to adjust/recover the amount paid from the contractor. According to the DJB, the contractor has already paid a sum of Rs.1.71 lacs to the victims families. DJB is directed to deposit the balance amount to compensation i.e. Rs.79,000/- with the DHCLSC within four weeks. DHCLSC will ascertain whether the amount of Rs.1.71 lacs has been received by the victims families as stated by the DJB. The owners of Katyal Farm House shall deposit a sum of Rs.1.5 lacs per worker, i.e., in all Rs.3 lacs, with DHCLSC. DHCLSC will ascertain whether the victims families have received the amount of Rs. 1 lac as claimed by the farm house owners. The CEO of DJB, Vice Chairman of DDA and ManagingDirector of DSIDC are directed to file their respective affidavits before the Committee within four weeks confirming that their respective affidavits before the Committee within four weeks confirming that their organizations have complied with all the directions issued by this Court from time to time and if there are any shortcomings, to specify them and also to give an undertaking in writing before the Committee that all shortfalls shall be rectified within a period to be fixed by the Committee. All the three organizations are directed to file documents before the Committee indicating:(i) That all the muster roll workers and the contract workers have been provided with protective gears.(ii) That all the muster roll workers and the contract workers have been provided provident fund.(iii) That all the muster roll workers have been given employment card.(iv) That medical examination, as directed by this Court, is being conducted in respect of contract workers fee of cost and copies of the medical records may also be furnished to the petitioner

Reasoning:
13. At the threshold, we deem it necessary to erase the impression and misgivings of some people that by entertaining petitions filed by social action groups/activists/workers and NGOs for espousing the cause of those who, on account of poverty, illiteracy and/or ignorance and similar other handicaps, cannot seek protection and vindication of their constitutional and/or legal rights and silently suffer due to actions and/or omissions of the State apparatus and/or agencies/instrumentalities of the State or even private individuals, the superior Courts exceed the unwritten boundaries of their jurisdictions. When the Constitution of India was adopted, the people of this country resolved to constitute India into a Sovereign Democratic Republic.In view of the principles laid down in the aforesaid judgments, we do not have any slightest hesitation to reject the argument that by issuing the directions, the High Court has assumed the legislative power of the State. What the High Court has done is nothing except to ensure that those employed/engaged for doing work which is inherently hazardous and dangerous to life are provided with life saving equipments and the employer takes care of their safety and health. The State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. The human beings who are employed for doing the work in the sewers cannot be treated as mechanical robots, who may not be affected by poisonous gases in the manholes. The State and its agencies/instrumentalities or the contractors engaged by them are under a constitutional obligation to ensure the safety of the persons who are asked to undertake hazardous jobs. The argument of choice and contractual freedom is not available to the appellant and the like for contesting the issues raised by respondent No.1.In view of the law laid down in the afore-mentioned judgments, the appellants challenge to the interim directions given by the High Court for payment of compensation to the families of the workers deserves to be rejected. However, that is not the end of the matter. We feel that the High Court should have taken cue from the judgment in Chairman, Railway Board v. Chandrima Das (supra) and awarded compensation which could be treated as reasonable. Though, it is not possible to draw any parallel between the trauma suffered by a victim of rape and the family of a person who dies due to the negligence of others, but the High Court could have taken note of the fact that this Court had approved the award of compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in the cost of living and done well to award compensation of atleast Rs.5 lacs to the families of those who died due to negligence of the public authority like the appellant who did not take effective measures for ensuring safety of the sewage workers. We may have remitted the case to the High Court for passing appropriate order for payment of enhanced compensation but keeping in view the fact that further delay would add to the miseries of the family of the victim, we deem it proper to exercise power under Article 142 of the Constitution and direct the appellant to pay a sum of Rs.3.29 lakhs to the family of the victim through Delhi High Court State Legal Services Committee. This would be in addition to Rs.1.71 lakhs already paid by the contractor.