High Court
Case Details
WP(C) 6218/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA By means of this writ petition, the petitioner, who is the father of lat e Mukul Bhuyan, has claimed compensation for the death of his son on 14.02.2001, which according to the petitioner was due to the negligence on the part of the respondent No.3. i.e. the Guwahati Refinery in maintaining the particular drain, in which the said son of the petitioner fell down and died. Although the petiti oner has stated various facts concerning his deceased son, but the same are not relevant to answer the issue as to whether the said son died due to negligence o f anyone of the respondents, more particularly the Guwahati Refinery.
Legal Reasoning
I have heard Mrs. R.B. Bora, learned counsel for the petitioner. Also he ard Mr. N. Deka, learned counsel representing the Guwahati Refinery and also hea rd Ms. S. Bora, representing the GMC and the Guwahati Development Department and so also Ms. R. Deka, learned Standing Counsel, PWD. I have also heard Ms. M. Ba ruah, learned counsel representing the respondent No.6 i.e. GMDA. The petitioner has earlier approached the Assam Human Right Commission b y filing an application and the same was registered as AHRC Case No.3814/02. By order dated 29.07.2003, the said Commission while closing the case, held that th e deceased had epileptic fit and fell down on the foot path and lost consciousne ss within the Guwahati Refinery campus and as he was alone, water from the drain flooded his respiratory tract through his nose and mouth and he died due to asp hyxia. Clearly recording the finding that there was no violation of Human Rights , it was however provided that it will be open for the petitioner to approach th e appropriate forum for redressal of his grievance, if any. In the meantime, police also submitted final report in respect of the FI R that was lodged by the brother of the deceased. The said FIR was registered as Noonmati P.S. UD case No.05/2001. As per the final report dated 01.11.2001, the deceased was suffering from epilepsy and used to fall down. On the fateful day also he fell down in the drain due to epileptic fit and died. Be it stated here that as per the aforesaid order dated 29.07.2003, passed by the Assam Human Righ ts Commission, the particular drain was only 1 ‰ feet in dimension and not deep enough even to drown small animal like dog and the place of occurrence was suffi ciently lit up at night of the fateful day. In the counter affidavit filed by the Guwahati Refinery, certain facts h ave been brought on record, which may have a bearing in deciding the issue raise d. The petitioner was an employee of the Guwahati Refinery, working as a Chemica l Operator. In the year 1986, he submitted his resignation from the job and the same was accepted. Thereafter he sought to withdraw the resignation, but when th e same was not permitted to be done, he took the plea that the resignation lette r was a manufactured document as the signature appearing in the said letter did not belong to him. Consequently an Industrial Dispute was raised and after adjud ication, the claim of the petitioner was rejected. Being aggrieved, he filed a w rit petition being WP(C) No.7359/2002, challenging the award. The said petition was dismissed and thereafter he filed a Writ Appeal being WA No.03/2005. The Wri t Appeal was also dismissed on 19.01.2009. It is on record that the petitioner has been living separately from his wife and children. At the time of the incident also he was living separately fro m his wife and the children. It is also on record that the mother of the decease d with her another son has been staying in Quarter No.E-2139, Sector-2, Guwahati Refinery Township and the petitioner is living separately. It is submitted by M r. Deka, learned counsel representing the Guwahati Refinery that considering the condition of the wife of the petitioner, she has been provided with a job in th e Guwahati Refinery. He also submits that if any compensation is to be sought on the death of the deceased, it was the mother and not the father i.e the petitio ner, who has already abandoned his family. According to him, the case does not m ake out any negligence on the part of the Refinery. In this connection, he has p laced reliance on two decisions of the Apex Court reported in (2005) 6 SCC 156 [ SDO, Grid Corporation of Orissa ltd and others -Vs- Timudu Oram] and (1999) 7 SC C 298 [Chairman, Grid Corporation of Orissa Ltd (GRIDCO) and Others -vs- Sukaman i Das(SMT) and another] . Mrs. Bora, learned counsel for the petitioner, however submits that when the drain was admittedly uncovered, the negligence on the part of the Guwahati Refinery is clearly established requiring the writ Court to award compensation u nder Public Law Remedy. Ms. Bora, learned Standing Counsel, GMC, Ms. Deka, learn ed Standing Counsel, PWD and Ms. M. Baruah, learned counsel representing GMDA al l submits that the drain being maintained by the Refinery, their respective depa rtments have nothing to do with the matter. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also considered the entire materials on re cord. As to what is the order passed by the Assam Human Rights Commission has be en noted above. Upon evaluation of all the relevant facts, the commission as rec orded in its order dated 29.07.2003, did not find any violation of Human Right t o. True it is that the commission while closing the case, granted liberty to the petitioner to approach the appropriate forum, however the same does not mean th at the petitioner can choose the Writ Court for resolving the disputed questions of fact. While there is no denial that the High Court exercising its power and jurisdiction under Article 26 of the Constitution of India, can award compensati on under Public Law Remedy, but as has been held by the Apex Court in the afores aid two cases, in the event of requiring to establish that the particular loss w as due to the negligence of the authority, and in that case without appreciating the said aspect of the matter, the High Court cannot award compensation. As recorded in the order of the Assam Human Rights Commission dated 29.0 7.2003, the deceased was suffering from epileptic fit and on the fateful night, he fell down on the foot path and lost consciousness. As he was alone, water fro m the drain flooded his respiratory tract through his nose and mouth and he died due to asphyxia. This cannot lead to the assumption that there was negligence o n the part of the Guwahati Refinery requiring interference of this Court under P ublic Law Remedy, so as to award compensation to the petitioner. It will also ha ve to bear in mind that the mother and brother of the deceased have not come for ward to make any complaint, but it is the petitioner i.e. the father of the dece ased, who has already abandoned the entire family has filed this writ petition c laiming compensation. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly, it is dismissed, however, keeping open the remedy of the pe titioner under Private Law Remedy.