Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 226 (GAU)

Kamini Brahma v. State of Assam

2009-03-30

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition, the petitioners who are wife and son of one late Rajen Brahma, have prayed for a direction to the respondents to pay compensation to the tune of Rs.4 lakhs on account of death of said Rajen Brahma due to electrocution. Further prayer made is to provide compassionate appointment to the petitioner No. 2. The alleged incident occurred on 14.2.1989 and nearly 18 years thereafter this writ petition has been filed. 2. As per the averments made in the writ petition, deceased Rajen Brahma was working as Linemen under the then ASEB and while he was engaged in duty on 14.2.1989, died due to electrocution. In the post mortem report, the cause of death was stated to be due to shock and haemorrhage as a result of head injury. According to the petitioner such head injury was due to falling from electric pole upon electrocution. 3. It is in the aforesaid circumstances, this writ petition has been filed and delay in filing the writ petition has been sought to be explained with the reason that the children left by the deceased Rajen Brahma were minors and now they have attained majority. 4. The respondents in their counter affidavit have denied the claim of the petitioners. They have also raised the issue of delay in filing the writ petition. It is stated that there is no record available in the office of the respondents relating to the death of the deceased due to electrocution. In paragraph-4 of the counter affidavit, it has been stated that the petitioner No. 1 in her affidavit dated 6.4.2000 submitted to the ASEB authority categorically declared that her husband died on 14.2.1989 at a place called Tamarhat due to "illness". 5. In support of the plea of delay in filing the writ petition, the respondents have placed reliance on the Division Bench judgment of this Court dated 7.11.2000 in WA No. 206/2004 (ASEB v. Phatik Ch. Talukdar) and order dated 29.5.2007 passed by this Court in WP(C) No. 2506/2007 (Minati Kalita v. State of Assam). 6. In the rejoinder affidavit filed by the petitioners, the statements made in the writ petition have been reiterated with the further contentions that the two judgments on which the respondents have placed reliance are not applicable to the facts and circumstances involved in the instant case. 6. In the rejoinder affidavit filed by the petitioners, the statements made in the writ petition have been reiterated with the further contentions that the two judgments on which the respondents have placed reliance are not applicable to the facts and circumstances involved in the instant case. According to the petitioners, since the children's of the deceased were minor at the time of his death and they belong to the lower stratum of the society, the delay must not stand on the way of the petitioners to get the relief. 7. Mr. M.C. Sarma, learned Counsel for the petitioners placing reliance on three decisions of this Court The Workman of Naharani Tea Estate v. The Manager of Naharani Tea Estate (1988) 2 GLR 54; Gopal Chandra Das v. Notified Area Authority Khowai and Ors. 2001(2) GLT 313 and Toijam Thoibi Devi v. State of Manipur and Ors. 1994 (2) GLT 103 strenuously argued that the delay in filing the writ petition is required to be ignored towards granting the deserved relief to the petitioners. 8. Mr. B.D. Das, learned Standing counsel, ASEB on the other hand, placing reliance on the aforesaid two judgments submitted that there is no question of granting any relief to the petitioners long 18 years after the alleged incident. He also submitted that when the allegation of death due to electrocution is disputed by the respondents, the writ court will be reluctant to entertain the claim of the petitioners. 9. The three decisions on which Mr. Sarma, learned Counsel for the petitioners has placed reliance are on the point of delay in filing the writ petitions. In those cases, the delay in filing writ petitions was ignored and were condoned having regard to the peculiar facts and circumstance involved. Needless to say that the ratio of any decision is to be understood in the background of the facts of that case. In those cases, the delay in filing writ petitions was ignored and were condoned having regard to the peculiar facts and circumstance involved. Needless to say that the ratio of any decision is to be understood in the background of the facts of that case. As observed by the Apex Court in P.S. Sadasivaswamy v. State of Tamilnadu AIR 1974 SC 2271 , it is not that there is any period of limitation for the courts to exercise their powers under Article 226 of the Constitution nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and tried to un-settle the settled matters. 10. Apart from delay on the part of the petitioners in filing the writ petition which is long 18 years, the prayer made also involves disputed questions of facts which cannot be gone into in writ jurisdiction. As against the claim of the petitioners that the deceased died due to electrocution while on duty, it is the stand of the respondents that as per the own admission of the petitioners, he died of illness, further, the postmortem report also does not suggest that the deceased died of electrocution. 11. The Division Bench judgment on which the learned Standing Counsel, ASEB has placed reliance has been delivered in more or less similar situation. In that case also, the person concerned died in the year 1982 and the question which arose for consideration was as to whether the writ court can entertain a petition filed after a period of more than 18 years from the date of alleged incident. It was held that, it is neither feasible nor possible for the writ court to undertake and examine stale claims. Likewise in the decision in Smt. Minoti Kalita (supra) also this Court placing reliance on two decisions of the Apex Court declined to entertain the writ petition on the ground of delay and laches. 12. It was held that, it is neither feasible nor possible for the writ court to undertake and examine stale claims. Likewise in the decision in Smt. Minoti Kalita (supra) also this Court placing reliance on two decisions of the Apex Court declined to entertain the writ petition on the ground of delay and laches. 12. The Apex Court in Ratan Chandra Sammanta v. Union of India AIR 1993 SC 2276 refused to grant relief to the petitioners, who claimed to be similarly circumstanced with those who were earlier granted relief by the Apex Court, solely on the ground of delay and laches. It was observed that the writ is issued in favour of a person who has some right and not for the sake of roving inquiry leaving scope for maneuvering. It was further observed that delay itself deprives a person of his remedy available in law. 13. As regards the claim of the petitioner No. 2 for providing him compassionate appointment, same also cannot be granted after long 18 years. Compassionate appointment is provided to redeem the family in distress after the death of the sole bread earner. It is by way of immediate assistance. The petitioner No. 2 was e minor when his father died. The Apex Court in the case of Sanjay Kumar v. State of Bihar (2000) 7 SCC 192 , while declining to accept the contentions raised on behalf of the petitioner that he should be provided with compassionate appointment, observed as follows: We are unable to agree with the submissions of the learned senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. 14. For all the aforesaid reasons, no relief can be granted to the petitioners and consequently the writ petition is liable to be dismissed which I accordingly do. 15. The writ petition is dismissed. However, there shall be no order as to costs. Petition dismissed.