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Judgment
T.S. Sivagnanam, J.
By consent of the learned counsel on either side, the writ petition is taken up for final disposal.
The petitioner in this Writ Petition seeks for issuance of a writ of mandamus to direct the respondents to pay the enhanced amount of compensation of Rs. 5 Lakhs from Rs. 15,000/- and further to direct the first respondent to take disciplinary action against the erring officials and to file a case against the erring officials under section 302 IPC instead of 304-A of IPC.
The petitioner''s son by name Karthik was called by the Assistant Manager of the third respondent, requesting him to clean the Septic Tank of the third respondent club. Accordingly, the petitioner''s son along with others had gone to the premises of the third respondent and due to poisonous gas, the petitioner''s son died. A case was registered in Crime No. 306 of 2011, for the offences under section 304A of IPC and under sections 3, 14, 15 of the Employment of Manual Scavengers and Construction of Dry Latrine (Prohibition) Act, 1993.
The petitioner would state that as his son having died during the course of employment, while cleaning the septic tank, is entitled to reasonable compensation. In this regard, the learned counsel for the petitioner referred to the First Information Report in Crime No. 306 of 2011 dated 22.2.2011, the post mortem certificate, the final opinion of the Doctor, Death Certificate and the Legal Heirship Certificate and the copy of the Cheque for Rs. 15,000/- which was the amount sanctioned by the Government of Tamil Nadu towards compensation.
The learned counsel would further submit that in the light of the decision of the Hon''ble Supreme Court in the case of SAFAI KARAMCHARI ANDOLAN and ORS. v. UNION OF INDIA and ORS. [Cont. P. (C) No. 132 of 2012 in W.P. (Civil) No. 583 of 2003], the compensation has to be awarded to the family members depending upon them, to such of those persons who have died in the sewerage work (manholes, septic tanks), since 1993.
The learned counsel appearing for the third respondent submitted that petitioner''s son was not an employee of the third respondent, but was only an employee of the Contractor and therefore, they are not liable for any compensation. It is further submitted that if he seeks for any compensation, he has to resort to remedy provided under the Workmen Compensation act.
The learned Government Advocate on instructions submitted that already a sum of Rs. 15,000/- has been paid towards compensation and if the petitioner seeks for enhanced compensation, he has to approach the competent Civil Court.
Heard Mr. R. Jaikumar, learned Counsel appearing for the petitioner, Mrs. P. Rajalakshmi, learned Government Advocate appearing for the respondents 1 and 2 and Mr. P.R. Raman, learned counsel for the third respondent and perused the materials placed on record.
This is an unfortunate case, where the father of the deceased young boy is before this Court, praying for compensation on account of the death of his son, who died while cleaning the septic tank in the premises of the third respondent. The inhuman practice of manual scavenging has been deprecated in several decisions of the Hon''ble Supreme Court and in the recent decision of the Hon''ble Supreme Court in case of SAFAI KARAMCHARI ANDOLAN, (supra), the Hon''ble Supreme Court has passed an order on 27.03.2014, issuing various directions. At this stage, it would be beneficial to refer to the operative portion of the said Judgment.
14) We have already noted various provisions of the 2013 Act and also in the light of various orders of this Court, we issue the following directions:-
(i) The persons included in the final list of manual scavengers under Sections 11 and 12 of the 2013 Act, shall be rehabilitated as per the provisions of Part IV of the 2013 Act, in the following manner, namely:-
(a) such initial, one time, cash assistance, as may be prescribed;
(b) their children shall be entitled to scholarship as per the relevant scheme of the Central Government or the State Government or the local authorities, as the case may be;
(c) they shall be allotted a residential plot and financial assistance for house construction, or a ready-built house with financial assistance, subject to eligibility and willingness of the manual scavenger as per the provisions of the relevant scheme;
(d) at least one member of their family, shall be given, subject to eligibility and willingness, training in livelihood skill and shall be paid a monthly stipend during such period;
(e) at least one adult member of their family, shall be given, subject to eligibility and willingness, subsidy and concessional loan for taking up an alternative occupation on sustainable basis, as per the provisions of the relevant scheme;
(f) shall be provided such other legal and programmatic assistance, as the Central Government or State Government may notify in this behalf.
(ii) 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 gears should be made a crime even in 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.
(iii) Identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs. 10 lakhs for each such death to the family members depending on them.
(iv) Rehabilitation must be based on the principles of justice and transformation.
15) In the light of various provisions of the Act referred to above and the Rules in addition to various directions issued by this Court, we hereby direct all the State Governments and the Union Territories to fully implement the same and take appropriate action for non-implementation as well as violation of the provisions contained in the 2013 Act. Inasmuch as the Act 2013 occupies the entire field, we are of the view that no further monitoring is required by this Court. However, we once again reiterate that the duty is cast on all the States and the Union Territories to fully implement and to take action against the violators. Henceforth, persons aggrieved are permitted to approach the authorities concerned at the first instance and thereafter the High Court having jurisdiction.
16) With the above direction, the writ petition is disposed of. No order is required in the contempt petition.
In terms of the above directions, the State shall identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs. 10 lakhs for each such death to the family members depending on them. That apart, there are serious debates on as to how to put an end to such an evil practice which violates the human rights of an individual. Thus, considering the entire facts of the instant case that the death occurred while the petitioner''s son was asked to clean the septic tank in the third respondent premises, there is no dispute as to the fact that the death was on account of drowning or poisonous gas in the septic tank. Therefore, the petitioner is entitled to be compensated, which in my view can only be an interim compensation, leaving it open to the petitioner to work out his remedy by filing appropriate petition for further compensation.
Considering the fact that the petitioner''s son was unmarried person, aged about 21 years and has left behind his father and mother as his legal heirs, this Court is of the view that awarding a sum of Rs. 5 lakhs will be just and proper.
Accordingly, respondents 1 and 2 are directed to pay a sum of Rs. 5 lakhs to the petitioner on account of the death of his son Karthik, who died while cleaning the septic tank in the third respondent premises, within a period of six weeks from the date of receipt of a copy of this order. Thereafter, it is open to the respondents 1 and 2 to take appropriate action for recovery of the said amount from the third respondent in accordance with law.
The Writ Petition is disposed of accordingly. No costs.