JAY RAM DAS Vs. STATE OF ASSAM
LAWS(GAU)-1994-7-4
HIGH COURT OF GAUHATI
Decided on July 11,1994

JAY RAM DAS Appellant
VERSUS
STATE OF ASSAM Respondents


Referred Judgements :-

SUNIL BATRA-VS-DELHI ADMINISTRATION AND ORS. [REFERRED TO]
SMTI. GEETA SANGMA-VS-STATE OF NAGALAND AND ORS. [REFERRED TO]
NILBY DUTTA-VS-STATE OF ASSAM [REFERRED TO]
SECRETARY OF STATE FOR SUNDIA IN COUNCIL-VS- A.COCKCRAFT. [REFERRED TO]
STATE OF RAJASTHAN VS. VIDHYAWATI [REFERRED TO]
KASTURI LAL RALIA KAM JAIN VS. STATE OF UTTAR PRADESH [REFERRED TO]
PREM SHANKAR SHUKLA VS. DELHI ADMINISTRATION [REFERRED TO]
RUDUL SAH VS. STATE OF BIHAR [REFERRED TO]
P NALLA THAMPY THERA VS. UNION OF INDIA [REFERRED TO]
BHIM SINGH MLA VS. STATE OF JAMMU AND KASHMIR [REFERRED TO]
PEOPLES UNION FOR DEMOCRATIC RIGHTS VS. STATE OF BIHAR [REFERRED TO]
AELTEMESH REIN VS. UNION OF INDIA [REFERRED TO]
KISHEN PATTNAYAK INDIAN PEOPLES FRONT VS. STATE OF ORISSA [REFERRED TO]
SAHELI A WOMENS RESOURCES CENTRE VS. COMMISSIONER OF POLICE DELHI POLICE HEADQUARTERS [REFERRED TO]
STATE OF MAHARASHTRA VS. RAVIKANT S PATIL [REFERRED TO]
KUMARI VS. STATE OF TAMIL NADU [REFERRED TO]
BHAGWAN SINGH UTTAM CHAND VS. STATE OF PUNJAB [REFERRED TO]
NILABATI BEHERA ALIAS LAUTA BEHERA VS. STATE OF ORISSA [REFERRED TO]


JUDGEMENT

- (1.)This application under Artictle 226 of the Constitution of India has been filed praying the following reliefs :
i) to quash the impugned order dated 8.2.91 (Annexure-'G') to the writ application and for a further direction not to give effect to the aforesaid impugned order. ii) for a direction to pay Ex-Gratia Grant of Rs. 1,00,000/- to the petitioner.
Annexure-'G' to the writ application is quoted below :
"Reference to the above subject, I am directed to say that Late Gopendra Kalita, LDA in your Estt. died in an accident caused by bomb blast planted by extremists while coming to the office. It is seen that he was not killed directly by extremists and there is no' document to prove that he was the aim of the extremists. The claim of Shri Joy Ram Das, father of Late Gopendra Kalita for ex-gratia grant, therefore, does not come within the purview of Finance Deptt's O.M. dtd. 14.6.85 and 9.8.89. In view of this Govt. regrets their inability to agree to the prayer of Shri Das."
The brief facts are as follows : The eldest son of the petitioner one Gopendra Kalita was a permanent employee (L.D.A.) of the Chief Judicial Magistrate Court, Barpeta and he was a Science Graduate (B.Sc.). That while Gopendra Kalita was coming to his office at Bapreta from Bhabanipur on 29.8.89, a bomb was planted in the bus (No. ASZ 4095) wherein he was travelling and the bomb exploded and as a result of that Gopendra Kalita, the eldest son of the petitioner was killed. The explosion occurred at about 9.45 A.M. just near Barpeta and 5 persons were killed on the spot and 5 other succumbed to injuries later on. Gopendra Kalita used to attend office coming from Bhabanipur which is at a distance of about 10 K.m. from Barpeta. There is an Office Memorandum dated 9th of Aug'89 issued by the Joint Secretary to the Govt. of Assam, Finance Department. That Circular is Annexure-'E' to the writ application and that is quoted below :
"In partial modification of this Deptt. O.M. No. FMP. 13/85/ 6 dated 14.6.85 the Governor of Assam is pleased to order that the families of Govt. servants killed while on duty in connection with discharge of duties as a result of attack by extremists, anti-social elements etc. or during action against dacoits, smugglers, hostiles or other anti-social elements will irrespective of the rank of such Govt. servants be paid an Ex-gratia grant of Rs. 1,00,000/- (One Lakh) each. The Governor of Assam is further pleased to order that the families of Drivers/Handymen or other employees of vehicles requisitioned by police authorities for law and order duty, if killed, while performing such furty (sick duty), by extremists or anti-social elements will also be paid an Ex-gratia grant of Rs.50,000/- each. Similarly, families of Home Guards deployed by Govt. along with the Police personnel for law and order duty, if killed in the like manner will also be paid an Ex-gratia grant of Rs. 1,00^900/- each. Such Ex-gratia grant shall be paid to one of the following family members in order of preference on receipt of a claim/ obtaining a claim in the enclosed form :- 1. Widow/Widower.
2. Son/Unmarried daughter. 3. Father/Mother. 4. Brother/Unmarried sister. All such sanctions shall be communicated by the Administrative Deptt. with the concurrence of Finance (E.C.-II) Deptt. The expenditure on account of Ex-gratia grants will be debitable to the head of account "2235-Social Security & Welfare-200-Other Schemes (b) Other Miscellaneous expenditure-9-grants-in-aid-Non-Plan." This will come into force with immediate effect." That in pursuance of this Circular the petitioner filed an application before the Law Secretary (Judicial), Guwahati, Dispur (Assam) through the Chief Judicial Magistrate, Barpeta for payment of a sum of Rs. 1,00,000/- as envisaged by the Circular (Annexure-'E' to the writ application) quoted above. But that was turned down vide Annexure-'G'. Hence, this writ application with the prayers as indicated above. I have heard Mr. B.C. Pathak, learned counsel for the petitioner and Mr. B.L. Singh, learned Govt. Advocate. As desired by this Court, Mr. N.M. Lahiri, the Senior Advocate has appeared as Amicus Curie. He was requested to appear as Amicus Curie to threw light on the controversial question involved in this case and he placed the cases mentioned below. The question involved in this case is that whether Annexure-'E covers the case of a death in bomb blast in a bus where an employee was travelling to attend his duty and whether this can be deemed to be a killing "on duty" or in connection with the discharge of duties as a result of attack by the extremists. The next question is that whether for a bomb blast the State of Assam can be held to be responsible by applying the principle of tort. If the principle of tort is applicable, the question of negligence of the State will be relevant inasmuch as no compensation can be granted by following the principle of tort without negligence on the part of the State or its employees. The other question is whether the State has an absolute duty to protect the life, liberty or property of its citizen. If a person loses his life, liberty or property not for the negligence of the State but for some other reasons whether the State would be liable. Article 21 of the Constitution of India shall not apply to the facts and circumstances of such a case. Now let us have a look at some decisions cited in order to decide the controversies. 1. AIR 1992 SC 2069 (Smti. Kumari-Vs-State of Tamil Nadu & Ors.). That was a case where a 6 years old son of the appellant died as a result of falling in a ten feet deep sewerage tank in the city of Madras. The tank was not covered with a lid and was left open. The appellant filed a petition under Article 226 of the Constitution of India before the Madras High Court seeking a writ in the nature of mandamus directing the respondents to pay Rs.50,000.00 as compensation to the appellant. The High Court dismissed the writ petition on the ground that in writ jurisdiction it was not possible to determine as to which of the respondents was negligenu in leaving the sewerage tank uncovered, (emphasis supplied). In the appeal, the Supreme Court granted a sum of Rs.50,000/- with a direction to the State of Tamil Nadu to take appropriate proceedings to claim the said amount or any part thereof from any of the respondents or any other authority which might be responsible for keeping the tank open. So, this case also turned down on the question of neligence and it was found that there was negligence on the part of the authority in keeping the tank open.
(2.)AIR 1989 SC 677 (Kishen Pattnayak-Vs-State of Orissa). That was a case regarding starvation deaths due to poverty and a prayer was made therein that the State Govt should be directed to take immediate steps for the purpose of ameliorating the misery of the people of the district of Kalahandi. The Govt. of Orissa was made of responsible for utter failure to protect the lives of the people of the two districts. The Supreme Court in that case pointed out that the State has a duty to take measures to protect the lives of the people and accordingly certain directions were given. It was found that State has a basic duty to provide the minimum to its citizens.
(3.)AIR 1987 SC 355 (Peoples' Union for Democratic Rights-Vs- State of Bihar and others). That was a case filed before the Supreme Court under Article 32 of the Constitution of India. On 19th April, 1986, 600 to 700 poor peasants and landless people mostly belonging to the backward classes had collected for holding a peaceful meeting within the compound of Gandhi Library in Arwal, a place within the District of Gaya in the State of Bihar. Without any previous warning by the police or any provocation on the part of the people who had so collected, the police surrounded the gathering and opened fire as a result of which several people were injured and at least 21 persons including children died. The Supreme Court in the facts and circumstances of the case directed that Rs. 20,000/- be paid to every person in case of death and Rs. 5,000/- in case of injury giving further liberty to the persons to pursue appropriate remedy for more compensation.


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