Baisil Attippetty v. Kerala Water Authority & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **WP(C).No.11185 OF 2014(S)** ## **PETITIONER:** **BAISIL ATTIPPETY (DIED) @ BASIL A.G., ATTIPETY HOUSE, NAYARAMBALAM P.O., COCHIN, KERALA, PIN-682 509.** **ADVOCATE SRI.K.P. PRADEEP (APPOINTED TO ASSIST THE COURT).** **BY ADV. SRI.K.P.PRADEEP** ## **RESPONDENTS:** - **1 KERALA WATER AUTHORTY REPRESENTED BY THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, "JALA BHAVAN", THIRUVANANTHAPURAM: PIN:695 503.** - **2 EXECUTIVE ENGINEER KERALA WATER AUTHORITY, SEVERAGE SUB DIVISION, PALLIMUKKU, ERNAKULAM, COCHIN: 682 016.** - **3 ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, SEVERAGE SUB DIVISION, PALLIMUKKU, ERNAKULAM, COCHIN:682 016.** - **4 THE COMMANDANT GENERAL FIRE AND RESCUE SERVICES HEADQUARTERS, HOUSING BOARD, THIRUVANANTHAPURAM. PIN:695 001.** - **5 THE ASSISTANT COMMANDANT FIRE AND RESCUE SERVICES, CLUB ROAD, ERNAKULAM. PIN:682 011.** **6 CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, PARK AVENUE ROAD, ERNAKULAM PIN:682 011.** **W.P.(C)No.11185 of 2014** **2** - **7 DISTRICT COLLECTOR ERNAKULAM, ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD, PIN:682 030.** - **8 THE CITY POLICE COMMISSIONER COCHIN CITY, PARK AVENUE ROAD, ERNAKULAM PIN:682 011.** - **9 LABOUR DEPARTMENT REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. PIN:695 001.** - **10 WATER RESOURCES DEPARTMENT REPRESENTED BY SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM: PIN:695 001.** - **11 LOCAL SELF GOVERNMENT DEPARTMENT REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM PIN:695 001.** - **12 CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM PIN:695 001.** **SRI.P.BENJAMIN PAUL, SC, FOR R1 TO R3, SRI.V. TEK CHAND, SR GP FOR R4,R5,R7 TO R12, SRI. MILLU DANDAPANI, SC FOR R6** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.11185 of 2014** **3** ## **JUDGMENT** Dated this the 18[th] day of February, 2021 ## **S.Manikumar, C.J.** Instant public interest litigation is filed to give adequate and sufficient compensation to the workmen, who died on 13.4.2014 inside the manhole of Kerala Water Authority sewerage pipeline. It is stated in the writ petition that when the employees were engaged in manhole of sewerage pipelines, adequate and necessary safeguards ought to have been taken by the Water Authority officials, so as to avoid any accident. 2. Petitioner has further stated that the Hon'ble Supreme Court, in **Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers & Others** reported in **(2011) 8 SCC 568** (Exhibit P3 Judgment), has issued guidelines, instructions and orders to be adhered, while workers are entering inside the manhole of sewerage pipeline for cleaning. According to the petitioner, the presence of at least an Assistant Engineer of the Kerala Water Authorities in the work place was mandatory. Engaging of workmen by the principal employer, Kerala Water Authority, without providing adequate and sufficient gears and tools like oxygen masks to the workers, resulted in the death of two poor workmen inside the manhole. The Police and Fire **W.P.(C)No.11185 of 2014** **4** and Rescue service personnel, who had reached the spot, did not have the necessary required tools, to rescue the poor workmen. Hence, instant writ petition is filed, seeking for the following reliefs: - “i) Issue a writ of mandamus or any other appropriate order or direction (to ex\ - 31AI-A directing the 1st respondent to pay an amount of Rs. 5 Lakhs as ex-gratia amount each to the bereaved family members of Madhav and Raju who have died inside the manhole of sewerage pipeline of Kerala Water Authority who is the principal employer. - ii) Issue a writ of mandamus or any other appropriate order or direction directing the 1st respondent to pay at least an amount of Rs.25 Lakhs each to the bereaved family members of Madhav and Raju. - iii) Issue a writ of mandamus or any other appropriate order or direction to pay an amount of Rs. Two Lakhs each to be paid by the 12[th ] respondent Chief Secretary, State of Kerala from the Chief Minister's Relief Fund to the bereaved family members of Madhav and Raju immediately to meet the immediate expenses of the family. - iv) Issue a writ of mandamus or any other appropriate order or direction directing the 12[th] respondent to provide night shelters for the migrant workers throughout Kerala. - v) Issue a direction to the 6[th] respondent to provide night shelter in Cochin city for the migrant workers hailing from neighbouring state of Kerala.” 3. Pursuant to the directions issued by this court, the District **W.P.(C)No.11185 of 2014** **5** Collector, Dindigul District, Dindigul has sent a letter to the Joint Registrar (Judicial) of this court dated 17.11.2020, enclosing copy of the legal heirs certificate of late Raju and late Mayavu. 4. Perusal of the judgment of the Hon'ble Apex Court in **Safai** **Karamchari Andolan and Others v. Union of India (UOI) and** **Others** reported in **(2014) 11 SCC 224** , shows that a writ petition was filed as a Public Interest Litigation under Article 32 of the Constitution of India, praying for issuance of a writ of mandamus to the respondentUnion of India, State Governments and Union Territories, to strictly enforce the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, inter alia, seeking for enforcement of the fundamental rights guaranteed under Articles 14, 17, 21 and 47 of the Constitution of India. After considering the constitutional and statutory provisions, the Hon'ble Apex Court, extracted the reliefs sought for in the writ petition, at paragraph No.4 of the judgment in **Safai Karamchari Andolan** 's case, as hereunder: - “4) The petitioners have approached this Court by way of writ petition in 2003, inter alia, seeking: - (i) to ensure complete eradication of Dry Latrines; - (ii) to declare continuance of the practice of manual scavenging and the operation of Dry Latrines violative of Articles 14, 17, 21 and 23 of the Constitution and the 1993 Act; **W.P.(C)No.11185 of 2014** **6** - (iii) to direct the respondents to adopt and implement the Act and to formulate detailed plans, on time bound basis, for complete eradication of practice of manual scavenging and rehabilitation of persons engaged in such practice; - (iv) to direct Union of India and State Governments to issue necessary directives to various Municipal Corporations, Municipalities and Nagar Panchayats (all local bodies) to strictly implement the provisions of the Act and initiate prosecution against the violators; and - (v) to file periodical Compliance Reports pursuant to various directions issued by this Court.” ## 5. Thereafter, the Hon'ble Apex Court, at paragraph No.14, issued ## 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; **7** ## **W.P.(C)No.11185 of 2014** - (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. **W.P.(C)No.11185 of 2014** **8** (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.” 6. Perusal of the same shows that the Hon'ble Apex Court has directed the Union of India/State Government/Union Territories, to identify the families of all persons, who have died in the 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. The Hon'ble Apex Court has also directed that rehabilitation must be based on the principles of justice and transformation. 7. It is true that the contractor has paid compensation of Rs.4,00,000/- each, to the wives of the deceased, which have taken note of in one of our earlier orders. 8. Be that as it may, the reliefs sought for in **Safai Karamchari Andolan** 's case is against the Central and State Governments/Union Territories, and accordingly ordered. 9. Though Adv.Saji Varghese Kakkattumattathil, appearing on behalf of Mr.P.Benjamin Paul, learned standing counsel for the Kerala **W.P.(C)No.11185 of 2014** **9** Water Authority, submitted that a sum of Rs.4,00,000/- has already been paid by the contractor, by way of compensation to the wives of the deceased, and that there is nothing to indicate in the judgment of the Hon'ble Supreme Court that compensation has to be paid by the Kerala Water Authority or the State Government, as the case may be, we are not inclined to accept the said contentions for the reason that the reliefs sought for as well as the directions issued are only against the Union of India/State Government/Union Territories and not against the contractors. Therefore, notwithstanding payments already made by the contractor, by virtue of the judgment of the Hon'ble Apex Court in **Safai Karamchari Andolan** 's case, Government of Kerala represented by the Secretary to the Government is bound to pay compensation of Rs.10,00,000/- each, to the family members of the persons, who died in sewerage work (manholes, septic tanks). Details of the legal representatives of the deceased, have been furnished by the District Collector, Dindigul District, Dindigul. He has sent the original legal heir certificate dated 18.8.2015 in respect of deceased Mayavu and the legal heir certificate dated 5.8.2015 in respect of deceased Raju. 10. Though the learned counsel for the Kerala Water Authority submitted that a direction be issued, enabling the State of Kerala, or the **10** ## **W.P.(C)No.11185 of 2014** Kerala Water Authority, to recover the payment to be made by them, we are not expressing any opinion on the above request. It is for them to work out the modalities. Hon'ble Supreme Court has directed the State to pay. 11. Registry is directed to forward the legal heirs certificate in respect of deceased Mayavu and deceased Raju, to the Kerala Water Authority represented by the Managing Director, Thiruvananthapuram, who shall take steps for payment of compensation of Rs.10,00,000/each, as ordered by the Hon'ble Supreme Court in **Safai Karamchari Andolan** 's case. Decision of the Hon'ble Supreme Court is binding on the parties. State of Kerala is a party to the decision. Kerala Water Authority, respondent No.1 and Labour Department, Water Resources Department, Local Self Government Department and Chief Secretary to the Government, respondents 9 to 12 respectively, are directed to disburse the sum of Rs.10,00,000/-, as ordered by the Hon'ble Supreme Court, within a period of two months from the date of receipt of a copy of this judgment. Let the judgment of the Hon'ble Supreme Court be honoured by the abovesaid respondents, in letter and spirit, without giving room, for further litigation. Writ petition is disposed of. Registry is directed to post the writ **11** ## **W.P.(C)No.11185 of 2014** petition after two months for submission of the compliance report by the respondents, so directed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **W.P.(C)No.11185 of 2014** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE INCIDENT AND THE DEATH OF TWO CASUAL WORKMEN NAMED MADHAV (58) AND RAJU (50) APPEARED IN THE HINDU DAILY ON MONDAY, APRIL 14, 2014.** - **EXHIBIT P2 TRUE COPY OF THE REPORT APPEARED IN "MALAYALA MANORAMA" DAILY WITH REGARD TO THE RESCUE OPERATION OF THE FIRE AND RESCUE SERVICE PERSONNEL ALONG WITH ENGLISH TRANSLATION.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT APPEARED IN 2011 KHC 4608.** - **EXHIBIT P4 TRUE COPY OF THE PAPER REPORT APPEARED IN INDIAN EXPRESS DAILY SHOWING THE SLEEPING OF THE MIGRANT WORKERS ON THE SIDES OF THE ROADS APPEARED ON 29.5.2013.** - **EXHIBIT P5 TRUE COPY OF THE REPORT SLEEPING THE MIGRANT WORKERS ON THE SIDES OF ROADS IN COCHIN CITY APPEARED IN "MATHRUBHOOMI" DAILY ON MAY 28, 2013 ALONG WITH ENGLISH TRANSLATION.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT DATED 26.11.2010 IN 2010 (14) SCC 604 REPORTED IN PEOPLE'S UNION FOR CIVIL LIBERTIES (NIGHT SHELTER MATTERS) VS. UNION OF INDIA AND OTHERS.** - **RESPONDENT'S EXHIBITS:** - **EXHIBIT R1(A) A TRUE COPY OF FORM NO-83 WHICH FORMS PART OF THE AGREEMENT** **EXHIBIT R1(B) A TRUE COPY OF DEMAND DRAFT FOR RS.400000/- BEARING NO-005523016593 DATED 29-4-2014 OF DHANALAKSHMI BANK, ERNAKULAM.** **13** ## **W.P.(C)No.11185 of 2014** **EXHIBIT R1(C) A TRUE COPY OF DEMAND DRAFT FOR RS.400000/- BEARING NO-005523016594 DATED 29/4/2014 OF DHANALAKSHMI BANK, ERNAKULAM** /TRUE COPY/ P.A. TO JUDGE