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2016 DIGILAW 338 (CAL)

HOSENARA BEGUM v. WBSEDCL

2016-04-08

SAMBUDDHA CHAKRABARTI

body2016
JUDGMENT : Sambuddha Chakrabarti, J. It gives me and perhaps all conscientious persons pain unspeakable to pass an order in a case where the licensee has so flagrantly and with impunity violated the basic principles of natural justice. A statutory body violating the same and justifying the act by filing an affidavit-in-opposition is a matter of serious concern for the present system where citizens have a right to repose their ultimate trust in the system itself. 2. The husband of the petitioner No. 1 was an agriculturist and he met with an accidental death on November 4, 2013. When he entered into the paddy field of his father in the district of Burdwan he accidentally stepped into a live electrical wire of 440 volts which was snapped from the overhead installation. The petitioners intimated the same to the authorities. It appears from the record that a spot enquiry was made, an FIR on behalf of the licensee was lodged and the petitioners were directed to file certain documents. They submitted those documents as early as on January 21, 2014. Since they did not hear anything from the respondents on the fate of their application for compensation, they moved a writ petition before this Court being W.P. 6488(W) of 2014. 3. The said writ petition was disposed of by a learned Single Judge of this Court by an order dated January 20, 2015 directing the respondent No. 2 to that writ petition, i.e. the Assistant Engineer and Station Manager, Bhatar Customer Care Centre, to take a decision on the documents as sought for by the letter dated November 27, 2013 and to dispose of the petitioners' application by passing a reasoned order. That direction was complied with by the respondent No. 2, who figures the same respondent's number in this writ petition as well, by an order dated February 7, 2015 by rejecting the petitioners' case for grant of solatium/compensation upon a finding that the deceased husband of the petitioner No. 1 had met with an accident due to unauthorized use of electricity by the disconnected consumer of a submersible pump. The said order is practically under challenge in the present writ petition. 4. I appreciate that the reliefs sought for in this writ petition could have been better drafted. The said order is practically under challenge in the present writ petition. 4. I appreciate that the reliefs sought for in this writ petition could have been better drafted. But going by the pleadings in the writ petition, it is obvious what the petitioners were actually challenging and it will be too technical, if not a little harsh and equitably erroneous, to dismiss the writ petition without moulding the reliefs which has been recognized by series of judgments. Moreover, the challenge of the petitioners is so obvious that if the reliefs are moulded the respondent shall not be prejudiced. This is a case where both the parties have come alive to the issues they have to meet. 5. The petitioners have challenged the findings on various grounds. Even they went to the extent of computing by the multiplier theory to establish that the petitioners are really entitled to much more compensation on account of death of the husband of the petitioner No. 1 as a result of the negligence on the part of the licensee company. 6. This writ petition has been seriously contested by the licensee by filing an affidavit-in-opposition. 7. Mr. Pal, the learned advocate for the petitioners, did not pray for time to file an affidavit-in-reply. However, it appears that a certain document has been annexed to the writ petition which is in the nature of an enquiry report. Mr. Pal alleged that copy of the enquiry report had not been given to the petitioners. This has also been admitted by Mr. Basu, the learned advocate for the licensee company. 8. I for one am not required to go into the merits of the case at this stage. The order passed by the respondent No. 2 is liable to be set aside on the ground of violation of the principles of natural justice. It appears that the respondents had violated the principles of natural justice on two counts. 9. The respondent No. 2 who had passed the order impugned represented the licensee company at the hearing before the respondent No. 2 himself. The reasoned order has been annexed as 'Annexure P-10' to the writ petition from which it appears that at the hearing the licensee company was represented by Sri Biswajit Mitra, the Station Manager, Bhatar Customer Care Centre along with others. The reasoned order has been annexed as 'Annexure P-10' to the writ petition from which it appears that at the hearing the licensee company was represented by Sri Biswajit Mitra, the Station Manager, Bhatar Customer Care Centre along with others. The order has three parts, viz, the submission of the petitioners, the submission of the Assistant Engineer and the decision. Of them, the decision is the shortest and the petitioners' submission has been recorded slightly more than the decision given by the Assistant Engineer. The reasoned order is more or less full of submissions made by the Assistant Engineer himself. 10. I do not particularly find anything wrong with the Assistant Engineer for that. Every individual has a right to love the points one makes and recording the same accordingly. But what is striking, if not unfortunate, is that this Assistant Engineer-cum-Station Manager is the same person who represented the licensee at the hearing before himself and he made submission on behalf of the licensee company. Thereby he decided not only to be a judge in his own cause, the supreme judge in all matters dealing with the application for compensation by the petitioners. 11. Mr. Basu submitted that the respondent No. 2 had done it pursuant to the order passed in the earlier writ petition. There are two aspects to be taken care of. If the respondent No. 2 was to pass the reasoned order pursuant to the order of the Court, he was not expected to represent the licensee company at the hearing. The licensee company should have been represented by anybody other than him. Otherwise, it becomes an apology of justice by a person in discharging his quasi-judicial duty. It is absurd that he is making submission and deciding the validity of the same in the same round of hearing. 12. Moreover, it appears from the 'Annexure R-2' to the affidavit-in-opposition that an enquiry was conducted at the instance of the licensee in respect of the accidental death. The report contains a brief history, physical inspection and findings. This report was signed by the Chairman of the Permanent Enquiry Committee & Regional Manager, Burdwan as well as the Member-Secretary and the Manager (HR&A), Burdwan Regional Office. The conclusion of the enquiry committee was that no individual employee was responsible for the accident and there was no difficulty in the system of the company. This report was signed by the Chairman of the Permanent Enquiry Committee & Regional Manager, Burdwan as well as the Member-Secretary and the Manager (HR&A), Burdwan Regional Office. The conclusion of the enquiry committee was that no individual employee was responsible for the accident and there was no difficulty in the system of the company. This report was signed on March 4, 2014 i.e. long before this Court passed the order on the earlier writ petition. 13. It is a matter of great surprise when the learned Single passed the earlier order why was not this fact brought to the notice of the learned Singe Judge. Before him the licensee company was represented by the same learned lawyer who is representing the case in Court today. Had it been brought to the notice of the learned Single Judge that the highest official of the licensee company in the district of Burdwan had given this finding, it is quite possible that the respondent No. 2 would not have been directed to dispose of the application of the petitioners. When a superior officer makes an enquiry and gives the finding in respect of any incident, it is difficult, if not practically impossible, for a subordinate officer to go against that finding and come to a reverse conclusion. Unfortunately nothing was placed before the learned Judge. And what is still more surprising is that the enquiry report had not been supplied to the petitioners. 14. Mr. Basu tried to impress upon the Court that the respondent No. 2 had passed the order impugned on the basis of the enquiry report and he tried to justify the action of the respondents on the basis of the findings contained in that report. But as mentioned earlier, the report remained an unknown document for the petitioners till their learned advocate received a copy of the affidavit-in-opposition. The salt to the injury was the communication made by the Zonal Manager, Burdwan on March 15, 2014 informing the petitioners that as per the prevailing rules, there was no scope of granting any solatium/compensation in the instant case. Therefore, the case filed was to be treated as 'closed'. 15. According to Mr. Basu, there is no challenge to the same. I at this stage will not entertain any such technical plea by the respondents after what they had done and after what I had observed before. Therefore, the case filed was to be treated as 'closed'. 15. According to Mr. Basu, there is no challenge to the same. I at this stage will not entertain any such technical plea by the respondents after what they had done and after what I had observed before. How could there be a challenge to the same when the enquiry report was not sent to the petitioners? When this was never disclosed to the Court earlier? Did the licensee expect that during the pendency of this writ petition the petitioners would embark on an another round of litigation? This is too much for the licensee to expect. The reasoned order is void ab initio and cannot stand a moment's scrutiny. It shocks one 's conscience. It is liable to be set aside and is set aside. 16. I set aside not only the order impugned but also all the communications made pursuant to the same. I direct the licensee company to reconsider the application of the petitioners afresh by an authority superior to the Zonal Manager, Burdwan, after giving the petitioners or their authorized representative, an opportunity of being heard and to dispose of the application within a period of 10 weeks from the date of communication of this order. 17. I direct that such official to be appointed by the licensee shall not be influenced by the stand taken by the licensee company before. I further direct the licensee company to consider the case of the petitioners that if the overhead low-tension line at the said spot had been disconnected in the year 2013 and if for that the system was not to blame, the authorities must necessarily answer how could the husband of the petitioner No. 1 die due to the alleged unauthorized use of electricity by the consumer of a disconnected submersible pump. If necessary, they will reopen the entire issue and look into the matter from an absolutely unbiased and impartial stand keeping in mind after all it is the case of death of an agriculturist due to electrocution from a high voltage line as per the finding in the postmortem report and not a case of avoiding liabilities. The Court only expects the quasi-judicial authorities of the licensee that the matter should be approached not from a view of saving the company, but with a human face. 18. The writ petition is allowed. 19. The Court only expects the quasi-judicial authorities of the licensee that the matter should be approached not from a view of saving the company, but with a human face. 18. The writ petition is allowed. 19. However, in view of what has been stated above, the respondents must have to bear the costs of the writ petition which is assessed at Rs. 20,000/- to be paid by the by the licensee company to the petitioners within a period of three weeks. In default, the petitioners will be entitled to recover the same in accordance with law. 20. Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date.