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IN THE HIGH COURT OF MANIPUR

AT IMPHAL

W.P. (C) No. 630 of 2013

Smt. Elangbam Ongbi Amubi Devi, aged about

35 years, W/o (Late) Elangbam Ranjit Singh,

resident of Tentha Mayai Leikai, P.O. Wangjing, P.S.

& District: Thoubal, Manipur.

... PETITIONER

- Versus -

1. The State of Manipur, through the Principal

Secretary/Commissioner (PHE), Government

of Manipur, Imphal, Manipur – 795001.

2. The Chief Engineer, Public Health

Engineering Department, Government of

Manipur, Imphal, Manipur – 795001.

3. The Executive Engineer, Sewerage Project,

PHED, Govt. of Manipur, Imphal, Manipur –

795001.

... RESPONDENTS

WithWithWithWith

W.P. (C) No. 631 of 2013

Smt. Elangbam Ongbi Gitarani Devi, aged about

32 years, W/o (Late) Elangbam Indra Singh, resident

of Tentha Mayai Leikai, P.O. Wangjiing, P.S. &

District: Thoubal, Manipur.

... PETITIONER

- Versus -

1. The State of Manipur, through the Principal

Secretary/Commissioner (PHE), Government of

Manipur, Imphal, Manipur – 795001.

2. The Chief Engineer, Public Health Engineering

Department, Government of Manipur (PHED),

Imphal, Manipur – 795001.

FR/NFRFR/NFRFR/NFRFR/NFR

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3. The Executive Engineer, Sewerage Project,

PHED, Government of Manipur, Imphal,

Manipur – 795001.

... RESPONDENTS

B E F O R E

HON’BLE MR. JUSTICE KH. NOBIN SINGH

For the Petitioners : Shri Kh. Tarunkumar, Advocate.

For the Respondents :

Shri R.K. Nokulsana, Sr. Advocate

asstd. by Shri Y. Sanajaoba, Advocate

& Shri K. Jagat, Govt. Advocate.

Date of Hearing : 09-02-2017

Date of Judgment & Order : 27-02-2017

JUDGMENT AND ORDER

[1] Heard Shri Kh. Tarunkumar, the learned counsel

appearing for the petitioners; Shri R.K. Nokulsana, the learned

Senior Advocate assisted by Shri Y. Sanajaoba, the learned

counsels appearing for the respondent Nos. 2 and 3 and Shri K.

Jagat, the learned Government Advocate appearing for the

respondent No. 1.

[1.1] The facts and circumstances of these cases are

almost identical and therefore, the same are being disposed of by

this common judgment and order.

W.P. (C ) No. 630 of 2013

[2] The instant writ petition has been filed by the

petitioner praying for a direction directing the respondents to

pay adequate compensation for a sum of Rs. 20,00,000/-

(Rupees twenty lakh) to the petitioner.

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[3.1] According to the petitioner, she is the widow of late

Elangbam Ranjit Singh who was engaged as a labourer in the

Sewage Project undertaken by the Department of Public Health

Engineering, Government of Manipur (hereinafter referred to

as the ‘PHED’) near Kekrupat Area, Imphal and expired whi le

performing the work of cleaning inside the manhole of the

said Sewage Project. On 25-04-2013 at around 07:30 AM, h er

husband went down inside the manhole for cleaning work by

lifting the cover of the hole using a ladder and as soon as he

reached the bottom of the manhole, he fell unconscious because

of suffocation. On seeing the said situation, another co-worker

namely Elangbam Indra Singh who also hails from the same

village of the petitioner went inside the manhole to save the life

of her husband and unfortunately, he also fell down unconscious

inside the manhole. As the other co-workers could not lift him

up immediately for want of emergency materials to save the

worker/ labourer, some personnel of the Manipur Fire Service

who came there pulled up her husband from inside the manhole.

Thereafter, he was taken to JNIMS where the doctor declared

him as brought dead.

[3.2] The news about the death of her husband and

another co-worker came to be published in the local daily called

the “POKNAPHAM” in its edition dated 26-04-2013 wherein i t

was clearly written that they had died while cleaning the

manhole of the Sewage Project. A post mortem was conducted

on her husband’s dead body and an FIR in respect thereof was

also registered by the Imphal Police Station. The authorities of

the PHED gave a sum of Rs. 2,10,000/- (Rupees two lakh ten

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thousands) only to the petitioner but they did not provid e

adequate compensation to the petitioner for her livelihood and

three minor children left behind by her husband who was the

sole bread earner of her family. Accordingly, she submitted a

representation to the Chief Engineer, PHED on 10-06-2013

praying for providing adequate compensation and the same is

still pending for consideration. Being aggrieved by the inaction

on the part of the authorities of the PHED, the instant writ

petition has been filed by the petitioner.

[4] To contest the writ petition, an affidavit on behalf of

the respondent Nos. 2 and 3 has been filed wherein it is stated

that the Sewage Project Phase-I, Zone-I for Imphal Town w as

undertaken by the PHED, Government of Manipur by awarding

the work to a Contractor. The petitioner’s husband was not

known to the PHED because he was not engaged by it for the

work of cleaning the manhole of the Sewage Project. The PHED

came to know about the incident from the newspaper and on

coming to know about it, the Chief Engineer, PHED rushed to

the site of the incident and consoled the petitioner and other

bereaved members of the family. The PHED managed to help the

petitioner by giving monetary help because the incident took

place in the execution of the work undertaken by it. A sum of

Rs. 2,10,000/- (Rupees two lakh ten thousand) only was paid to

the petitioner as agreed between the petitioner and the PHED to

be the last and final demand for settlement in connection with

the death of her husband. The stand of the respondent No. 1 as

indicated in its affidavit, is similar to that of the respondent Nos.

2 & 3 and in addition thereto, it is stated that safety measures

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were taken from the day the execution of the Sewage Project

came to be started by the PHED and that the issue as regards

the determination of liability or inadequacy of the amou nt

already paid to the petitioner is the one which can be decided by

a competent Civil Court.

W.P. (C ) No. 631 of 2013

[5] The instant writ petition has been filed by the

petitioner praying for a direction directing the respondents to

pay adequate compensation for a sum of Rs. 20,00,000/- (Rupees

twenty lakh) to the petitioner.

[6] The facts of the instant case are almost identical to

that of the writ petition being W.P. (C) No. 630 of 2013 mentioned

above. The petitioner herein is the widow of late Elangbam Indra

Singh who was also engaged as a labourer for the Sewage Project

undertaken by the PHED near Kekrupat Area, Imphal and

expired on 25-04-2013 while performing the work of cleani ng

inside the manhole of the said Sewage Project. The detailed facts

of the present case are not narrated herein for the sake of brevity

and moreover, the stands of the respondents remain the same in

both the cases.

[7] Shri Kh. Tarunkumar, the learned counsel appearing

for the petitioners submitted that the respondents failed to

take preventive safety measures and to provide equipment/

kits before such hazardous activities being carried out by them

through the workers/labourers, as a result the petitioner’s

husbands who were the bread winners of their family, met the

unfortunate incident and lost their lives. The respondents are

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absolutely responsible for the unfortunate incident and due to

their negligence or inaction, the fundamental rights and in

particular, the right to life of the petitioner’s husbands have

been infringed and therefore, they are liable to pay adequate

compensation to the petitioners. In order to substantiate his

contention, he has relied upon the decision of the Hon’ble

Supreme Court in Delhi Jal Board Vs. National Campaign for

Dignity and Rights of Sewerage and Allied Workers & ors.,

reported in (2011) 8 SCC 568 wherein an interlocutory order

passed by the High Court of Delhi by which the Delhi Jal Board

was directed to deposit Rs. 79,000/- in addition to Rs. 1.71 lakhs

already paid to the families of the deceased worker, came to

be challenged by the Delhi Jal Board. The learned counsel

appearing for the appellant submitted that the impugned order

was liable to be set aside because the Hon’ble High Court

transgressed the limit of its jurisdiction under Article 226 of

the Constitution and usurped the legislative power of the State;

that the High Court did not have the jurisdiction to directly or

indirectly alter the terms of agreement between the appellant

and the Contractor and that the Hon’ble High Court commi tted

serious error by directing the appellant to pay compensation to

the family of the worker ignoring that he was employed by the

contractor to whom the contract had been awarded. Three issues

came to be considered and decided by the Hon’ble Supreme

Court which held that in terms of its earlier decisions referred

to therein, the writ petition was maintainable and that t he

High Court, by issuing the said directions, did not assume the

legislative power of the State. The Hon’ble Supreme Court

rejected the appellant’s challenge to the interim directions for

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payment of compensation to the families of the workers and

rather, it felt that the High Court should have taken cue from the

judgment in Railway Board Vs. Chandrima Das, reported in

(2000) 2 SCC 465 and awarded compensation which could be

treated as reasonable. In this Chandrima Das case, the Hon’ble

Supreme Court observed that where public functionaries are

involved and the matter relates to the violation of fundamental

rights or the enforcement of the public duties, the remedy would

still be available under the public law notwithstanding that

a suit would be filed for damages under the private law. The

Hon’ble Supreme Court held:

“31. These judgments are a complete answer to the

appellant’s objection to the maintainability of the

writ petition filed by Respondent 1. What the High

Court has done by entertaining the writ petition

and issuing directions for protection of the persons

employed to do work relating to sewage operations

is part of its obligation to do justice to the

disadvantaged and poor sections of the society. We

may add that the superior courts will be failing in

their constitutional duty if they decline to entertain

petitions filed by genuine social groups, NGOs and

social workers for espousing the cause of those

who are deprived of the basic rights available to

every human being, what to say of fundamental

rights guaranteed under the Constitution. It is the

duty of the judicial constituent of the State like its

political and executive constituents to protect the

rights of every citizen and every individual and

ensure that everyone is able to live with dignity.

32. Given the option, no one would like to enter the

manhole of sewage system for cleaning purposes,

but there are people who are forced to undertake

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such hazardous jobs with the hope that at the end

of the day they will be able to make some money

and feed their family. They risk their lives for the

comfort of others. Unfortunately, for last few

decades, a substantial segment of the urban

society has become insensitive to the plight of the

poor and downtrodden including those, who, on

account of sheer economic compulsions, undertake

jobs/works which are inherently dangerous to life.

People belonging to this segment do not want to

understand why a person is made to enter a

manhole without safety gears and proper

equipments. They look the other way when the

body of a worker who dies in the manhole is taken

out with the help of ropes and cranes. In this

scenario, the courts are not only entitled but are

under constitutional obligation to take cognizance

of the issues relating to the lives of the people who

are forced to undertake jobs which are hazardous

and dangerous to life.

33. It will be a tragic and sad day when the superior

courts will shut their doors for those, who without

any motive for personal gain or other extraneous

reasons, come forward to seek protection and

enforcement of the legal and constitutional rights of

the poor, downtrodden and disadvantaged sections

of the society. If the system can devote hours, days

and months to hear the elitist class of eminent

advocates who are engaged by those who are

accused of evading payment of taxes and duties or

otherwise causing loss to public exchequer or who

are accused of committing heinous crimes like

murder, rape, dowry death, kidnapping, abduction

and even acts of terrorism or who come forward

with the grievance that their fundamental right to

equality has been violated by the State and/or its

agencies/instrumentalities in contractual matters,

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some time can always be devoted for hearing the

grievance of vast majority of silent sufferers whose

cause is espoused by bodies like Respondent 1.

38. In view of the principles laid down in the aforesaid

judgments, we do not have the 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.

39. 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 1.

50. In view of the law laid down in the aforementioned

judgments, the appellant’s 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

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Railway Board v. Chandrima Das 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

lakhs in 1998 to the victim of rape as also increase

in the cost of living and done well to award

compensation of at least Rs 5 lakhs to the families

of those who died due to negligence of the public

authority like the appellant which did not take

effective measures for ensuring safety of the

sewage workers.

He has also placed reliance on the decision of the

Hon’ble Supreme Court in Safai Karamchari Andolan & ors.

Vs. Union of India & ors. reported in (2014) 11 SCC 224

wherein a PIL under Article 32 of the Constitution was filed

praying for issuance of a writ of mandamus to strictly enforce

the implementation of Manual Scavengers and Construction of

Dry Latrines (Prohibition) Act, 1993. After examining the various

provisions of the Act and its various earlier orders, the Hon’ble

Supreme Court issued various directions, out of which the

direction No. 23.2 is relevant for the present case and the same

is reproduced herein below:

“23.2 If the practice of manual scavenging has to be

brought to a close and also to prevent future

generations from the inhuman practice of manual

scavenging, rehabilitation of manual scavengers

will need to include:

(a) Sewer deaths — Entering sewer lines without

safety gear should be made a crime even in

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emergency situations. For each such death,

compensation of Rs 10 lakhs should be given

to the family of the deceased.

(b) Railways — Should take time-bound strategy

to end manual scavenging on the tracks.

(c) Persons released from manual scavenging

should not have to cross hurdles to receive

what is their legitimate due under the law.

(d) Provide support for dignified livelihood to safai

karamchari women in accordance with their

choice of livelihood schemes.”

[8] On the other hand, Shri R.K. Nokulasana, the

learned Senior Advocate appearing for the respondent Nos. 2 & 3

submitted that the petitioner’s husbands were not engaged by

the PHED and since the work of Sewage Project had been

entrusted to a contractor, they were engaged by it. Although

the contractor is a necessary party, it has not been arrayed as

party in these writ petitions. Immediately, after the incident,

the respondents, on humanitarian grounds, paid a sum of

Rs. 2,10,000/- (Rupees two lakhs ten thousand) each to the

petitioners as per the terms of the agreements entered into

between the petitioners and the PHED by which the petitioners

have agreed to accept the said amounts to be the full and final

settlement. He has further submitted that the decisions relied

upon by the learned counsel appearing for the petitioners are

not applicable to the facts and circumstances of the present

cases. Shri K. Jagat, the learned Government Advocate appearing

for the respondent No. 1 has submitted that safety measures

were taken and necessary instructions were given to the workers

and since the present writ petitions have given rise to disputed

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questions of fact, the petitioners remedies lie in the civil court

and therefore, the same are liable to be dismissed by this court.

In order to support his contention, he has relied upon the

decision of the Hon’ble Supreme Court in Manager, St. Thomas

UP School Kerala & anr. Vs. Commissioner & Secretary to

General Education Department & ors. reported in (2000) 2

SCC 497 wherein the question was as to whether the appellant

school was established by a minority so as to be treated as

minority institution under Article 30(1) of the Constitution. The

Hon’ble Supreme Court held that the High Court had determined

what were clearly disputed questions of fact without the benefit

of a full-scale trial and the issue should have been left to

the fact-finding authority and accordingly, allowed the appeal.

He has placed reliance in Tamil Nadu Electricity Board Vs.

Sumathi & ors. reported in (2000) 4 SCC 543 wherein one of

the issues that arose for consideration was as to whether the

High Court under Article 226 of the Constitution can award

compensation for death caused due to electrocution on account

of improper maintenance of electric wires or equipment by the

Tamil Nadu Electricity Board, the Hon’ble Supreme Court held

that since disputed questions of fact arose in that case, the High

Court should not have entertained the writ petitions under

Article 226 of the Constitution of India.

[9] It is not in dispute that there is no any law enacted

by the State Legislature to deal with the situation involved

herein. In this regard, the observations made by the Hon’ble

Supreme Court in Delhi Jal Board case are very much relevant

when it observed that neither law maker nor those who have

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been entrusted with the duty of implementing the laws enacted

for the welfare of the unorganised workers have put in place an

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/instrumentalists like the appellant for doing work,

which are inherently hazardous and dangerous to life nor made

provision for payment of reasonable compensation in the event of

death. Therefore, in the absence of any provision of law enacted

by the State Legislature, the issues involved herein are to be

decided in terms of the law laid down by the Hon’ble Supreme

Court. Before deciding the main issue, this court proposes to

deal with the preliminary objection raised by the learned

Government Advocate as regards the maintainability of the

present writ petitions and relying upon the said two decisions

rendered in Manager, St. Thomas UP School Kerala case and

Tamil Nadu Electricity Board Vs. Sumathi case , he has

submitted that since the present cases involve disputed

questions of fact, their remedies lie in the civil court and

therefore, this court ought not to entertain them. But he has

failed to specifically spell out as to what are that disputed

questions of fact and on perusal of the affidavit filed on behalf

of the respondent No. 1, it is seen that it has not denied the

occurrence of the said unfortunate incident in which the

petitioner’s husbands died and all that it stated, is that the

incident took place in the early morning before no one could

attend the office and it came to know about it from the

newspaper only. Moreover, in Tamil Nadu Electricity Board

Vs. Sumathi case relied upon by himself, the Hon’ble Supreme

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Court also has held that in view of the clear position of law laid

down by this court in Sukamani Das case when a disputed

question of fact arises and there is clear denial of any tortious

liability, remedy under Article 226 of the Constitution of India

may not be proper. However, it cannot be understood as laying

a law that in every case of tortious liability, recourse must be had

to a suit. Where there is negligence on the face of it and

enforcement of Article 21 is there, it cannot be said that there

will be any bar to proceed under Article 226 of the Constitution.

Right to life is one of the basic human rights guaranteed under

Article 21 of the Constitution. Therefore, his contention having

no substance at all, is not acceptable to this court and there is

nothing wrong in entertaining the present writ petitions by this

court under Article 226 of the Constitution of India.

[10] As regards the question as to whether the petitioners

are entitled to adequate compensation or not, it may be noted

that the facts of the present cases may not be exactly the same

but are similar to that of the Delhi Jal Board case referred to

herein above and the law laid down therein shall apply to the

facts of the present cases. In the present cases, the submissions

on behalf of the respondents are that the Sewage Project was

undertaken by the PHED, the work of which had already been

entrusted to a contractor who is not a party herein; that the

petitioner’s husbands were not engaged by it and that on

humanitarian grounds, monitory help had been extended by the

PHED to the petitioners. Such similar submissions which have

been made in Delhi Jal Board case, were found by the Hon’b le

Supreme Court to be of no substance and merit and the Hon’ble

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Supreme Court has made it very clear that 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 Hon’ble Supreme Court has further observed that in

this scenario, the court are not only entitled to but are under

constitutional obligation to take cognisance of the issues relating

to the lives of the people who are forced to undertake jobs which

are hazardous and dangerous to life. Accordingly, the Hon’ble

Supreme Court upheld the directions given by the High Court for

payment of compensation to the families of the workers.

There are other grounds which need to be considered

by this court. Based on the affidavit filed on behalf of

the respondent No.1, it has been submitted by the learned

Government Advocate that from the day the execution of the

Sewage Project came to be commenced, the workers were

instructed about the safety measures as per Sewage Manual.

This contention appears to be contrary to its own averments

made therein that the work of execution of the Sewage Project

has been entrusted to a contractor and it is the contractor

who has engaged the petitioner’s husbands and not the PHED.

Moreover, it is not stated specifically in the affidavit as to whom

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the instructions about safety measures have been given by the

PHED towards the execution of its Sewage Project without any

worker being engaged by it. The learned Government Advocate

has further submitted that the compensations as agreed between

the petitioners and the PHED as the full and final settlement,

have been paid to them and therefore, this court may not

interfere with it. It may be noted that it is the fundamental rights

of the petitioner’s husbands which have been infringed by the

PHED on account of its negligence and therefore, the terms of the

said agreements cannot and shall not prevail upon the provisions

of the Constitution of India and in particular, Article 21 of the

Constitution. Having heard the learned counsels appearing for

the parties, this court is of the view that in terms of the law laid

down by the Hon’ble Supreme Court in Delhi Jal Board case, the

present writ petitions deserve to be allowed by this court.

[11] Having held that the present writ petitions deserve to

be allowed, the next question is as to what compensation be

awarded in the facts and circumstances of the present cases.

In this regard, it may be noted that the Hon’ble Supreme Court

in Delhi Jal Board case observed that while awarding

compensation, the High Court should have taken cue from the

judgment in Railway Board Vs. Chandrima Das. The Hon’ble

Supreme Court further observed that 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 the others, the High Court could have taken note of the fact

that the Hon’ble Supreme Court had approved the award of

compensation of Rs. 10 lakhs in 1998. Accordingly, the Hon’ble

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Supreme Court directed the appellant therein to pay a sum of

Rs. 3.29 lakhs to the family of the victim in addition to Rs. 1.71

lakhs already paid by the contractor and over and above, the

Hon’ble Supreme Court observed that the appellant be entitled

to recover the additional amount from the contractor. In Safai

Karamchari Andolan & ors. Vs. Union of India & ors.

reported in (2014) 11 SCC 224 the Hon’ble Supreme Court

issued various directions and in particular, the direction No. 23.2

whereby the Hon’ble Supreme Court directed that in respect of

Sewer deaths-entering sewer lines without safety gear should

be made a crime even in emergency situations, compensation

of Rs. 10 lakhs should be given to the family of the deceased.

Keeping in mind the directions issued by the Hon’ble Supreme

Court in similar cases referred to herein above, this court is of

the view that the end of justice will be made, if the respondents

are directed to pay compensation of Rs. 10 lakhs each to the

petitioners. Since the petitioners have already been given Rs.

2,10,000/- (Rupees two lakhs ten thousand) each by the PHED,

they will now be entitled to the balance amount of Rs. 7,90,000/-

(Rupees seven lakhs ninety thousand) each.

[12] For the reasons stated herein above, the writ

petitions are allowed with the following directions:

(a) The respondents and in particular, respondent Nos.2

shall pay compensation of Rs. 7,90,000/- (Rupees

seven lakhs ninety thousand) each to the petitioners

within six months from the date of this judgment

and order;

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(b) In the event of the said compensation as directed

above (a) not being paid in six months by the

respondents, the said amount shall accrue an

interest @ Rs.8/- per cent annum from the date of

expiry of six months till the date of payment. There

shall be no order as to costs.

JUDGE

Devananda