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2018 DIGILAW 245 (ALL)

KAVITA TYAGI v. STATE OF U. P.

2018-01-31

SAUMITRA DAYAL SINGH, TARUN AGARWALA

body2018
JUDGMENT By the Court.—Heard learned counsel for the parties. 2. The petitioner Kavita Tyagi has filed the present writ petition for a writ of mandamus to the respondent No. 4 - the Chief Election Officer, U.P. Lucknow to pay ex-gratia payment Rs. 20,00,000/- (twenty lacs) to her, occasioned by the death of her husband Neeraj Tyagi caused due to a violent act by an unsocial element, while the deceased was on election duty, during general elections 2014. 3. Admittedly, the petitioner’s husband Neeraj Tyagi was a constable with Prantiya Rakshak Dal. vide notice dated nil he was required to report for election duty with effect from 10.00 a.m. on 5.4.2014. By further communication dated 25.4.2014, issued by the District P.R.D. Officer, Meerut, the deceased alongwith three other constables (named in that communication), was posted at Police Station, Saroorpur, on election duty. On 3.5.2014, while he was thus on patrol duty, he was run over by a motor vehicle being Tavera car bearing registration No. DL-1 BB 4490 carrying 47 cartons of illicit liquor of Haryana State. Neeraj Tyagi received grievous injuries in that incident for which he was hospitalized at Meerut. He died during the course of treatment, at the hospital, on 10.5.2014. In this regard, a report of the aforesaid facts was also made by the Inspector In-charge P.S. Saroorpur, Meerut to the Senior Superintendent of Police, Meerut. 4. While principally, grant of ex-gratia compensation is an act of gratis and has no connection with the liability of the State in law, Sudesh Dogra v. Union of India, (2014) 6 SCC 486 , again, it is not disputed that the Election Commission of India had, vide its circular dated 25.4.2014 provided for a scheme for payment of ex-gratia compensation to family of polling personnel who died or sustained injuries while on election duty. Therefore, the petitioner claims herself entitled to the relief claimed in the writ petition. 5. In the first place, the aforesaid circular letter provides for payment of minimum ex-gratia compensation being Rs. 10,00,000/- to be paid in the unfortunate event of death of the official while on election duty. Then, that circular further provides that in case of death due to any violent acts of extremist or unsocial elements ex-gratia compensation of Rs. 20,00,000/- be paid. 6. 10,00,000/- to be paid in the unfortunate event of death of the official while on election duty. Then, that circular further provides that in case of death due to any violent acts of extremist or unsocial elements ex-gratia compensation of Rs. 20,00,000/- be paid. 6. The, said circular letter further clarifies that it would be reasonable to consider a personnel to be on election duty as soon as he leaves his residence or office to report for any election related duty including training and until he reaches back his residence or office after performance of his election related duty. It has been further clarified that any mishap that may take place during the aforesaid period should be treated as having occurred on election duty subject to there being a casual connection between the occurrence of the death and the election duty. 7. As to the payment of ex-gratia compensation, it has been provided that the same shall, in the first instance be paid by the State Government and the State Government may in turn make a claim (with respect to the amount so paid out), to the Government of India. 8. In view of the aforesaid circular letter, the petitioner made a claim to the District Election Commissioner/District Magistrate, Meerut for payment of ex-gratia compensation of Rs. 20,00,000/- in respect of the death of her husband Neeraj Tyagi. However, such amount was not paid to the petitioner. Therefore, the petitioner has filed the present writ petition. 9. Learned counsel for the petitioner submits on the strength of documents annexed to the writ petition that the deceased was on election duty on 3.5.2014 when he was run over by a Tavera car, by unsocial elements transporting illicit liquor contrary to restraint in law. Therefore the petitioner is entitled to receive compensation Rs. twenty lacs. 10. Opposing the petition learned counsel for the respondents submit that the election duty of the deceased got over on 10.4.2014, upon conclusion of polling. Therefore, the petitioner is not entitled to compensation as claimed. Second, it has been submitted, in any case the death of Neeraj Tyagi was not caused by a violent act of an extremist. Therefore, compensation, if any, cannot exceed Rs 10,00,000/-. No other objection has been raised by the respondents. 11. Therefore, the petitioner is not entitled to compensation as claimed. Second, it has been submitted, in any case the death of Neeraj Tyagi was not caused by a violent act of an extremist. Therefore, compensation, if any, cannot exceed Rs 10,00,000/-. No other objection has been raised by the respondents. 11. Having heard learned counsel for the parties we notice, in the counter-affidavit filed on behalf of the Chief Election Officer, Uttar Pradesh, Lucknow it has been stated that while Neeraj Tyagi had been placed on election duty on 5.4.2014, however, upon the polling getting over on 10.4.2014, he had completed his election duty. 12. In respect of the report made by the Inspector In-charge P.S. Saroorpur to the Senior Superintendent of Police, Meerut annexed as Annexure 7 to the writ petition, the said respondents have merely stated that the contents of the paragraphs 9 to 13 of the writ petition need no comments as they are matters of record. However, the facts stated in that report that the deceased Neeraj Tyagi was on election duty at the time of accident involving his death, has not been denied. 13. Then, an affidavit has been filed on behalf of the Director General, Prantiya Rakshak Dal - the employer of the deceased Neeraj Tyagi. In that affidavit there is not even a whisper to support the defence set out in the counter-affidavit filed on behalf of the Chief Election Officer that the deceased Neeraj Tyagi was not on election duty on 3.5.2014. The deceased being an employee of the Prantiya Rakshak Dal it was for the said respondent/employer to have denied the assertion made by the petitioner that the deceased was on election duty when he received fatal injuries. It was for the respondents to have led specific evidence to establish that the election duty of the deceased had got over before 3.5.2014. Neither any date has been disclosed in any of the counter-affidavits nor any documentary evidence has been brought on record to assert that the election duty of the deceased had got over before 3.5.2014. 14. Mere assertion made in the counter-affidavit filed on behalf of the Chief Election Officer that upon the conclusion of polling on 10.4.2014, the election duty of the deceased got over is wholly unsubstantiated and unbelievable. There is no presumption in favour of the stand taken by the respondents. 14. Mere assertion made in the counter-affidavit filed on behalf of the Chief Election Officer that upon the conclusion of polling on 10.4.2014, the election duty of the deceased got over is wholly unsubstantiated and unbelievable. There is no presumption in favour of the stand taken by the respondents. It is a commonly known fact that polling is only one stage in the entire election process and that the election process extends much beyond the date of completion of polling, specially in the case of general elections where polling is held in different stages, all over the country, extending beyond a month. 15. Thus, it was for the respondents to have specifically pleaded and brought on record the date when the election duty of the deceased Neeraj Tyagi got over. No pleading whatsoever has been made in any of the counter-affidavits. In fact, the respondents having not denied the correctness and contents of the report made by the Inspector In-charge P.S. Saroorpur wherein it has been specifically stated that the deceased was on the election duty at the time of the accident, it stands admitted on principle of non traverse that the deceased was on election duty at the time of occurrence of the incident on 3.5.2014. 16. Also, admittedly the deceased was a constable/employee of the Prantiya Rakshak Dal. He was posted at Police Station Saroorpur, by way of special/election duty at that Police Station under an order in writing. Again admittedly, he was on duty at that Police Station on 3.5.2014. In absence of any other pleading or document to establish how the deceased (who was an employee of the Prantiya Rakshak Dal and not the civil police), continued to be posted at Police Station Saroorpur, beyond 10.4.2014, it has to be believed that the deceased continued on election duty at Police Station Saroorpur upto 3.5.2014. 17. Then, the principle under the Workmen’s Compensation Act to determine whether an accident arose out of and in the course of the employment of the workman has been made equally applicable to a similar circular issued by the Central Government (providing for award of ex-gratia compensation to security personnel of SPG providing security cover to VIPs), since both have the same object, Rajanna v. Union of India, 1995 Supp (2) SCC 601. In that case it was held : “13. In that case it was held : “13. There can be no doubt that there was a causal relationship between the accident in which the appellant sustained the injuries and his employment in the SPG for actual VIP security duty; and it was an incident of his employment to travel from the staff quarters to the South Block in the SPG vehicle according to the official arrangement. In our opinion, the meaning of the expression “actual VIP security duty” in the above circular must be the same as that of the words “in the course of the employment” in the Workmen’s Compensation Act; and, therefore, the test for determining the liability for payment under the circular should also be the same. In our view, the Tribunal was in error in making an unduly strict and narrow construction of the expression used in the circular.” 18. Thus clearly the deceased was on election duty when he was run over by a Tavera car carrying illicit liquor. Therefore the petitioner is entitled to payment of ex-gratia compensation for the death of her husband Neeraj Tyagi in terms of the Circular dated 25.4.2014. 19. Coming to the amount of compensation to which the petitioner is entitled, a plain reading of the circular brings out that the Election Commission has created two categories of cause of death for computation of compensation amount to be paid in case of death of a personnel on election duty. In the first place a minimum amount of Rs. 10,00,000/- (ten lacs) has been made payable in cases of any death, due to any cause, including natural causes. 20. Neeraj Tyagi did not die of a natural cause. Then, a higher amount of ex-gratia compensation Rs. 20,00,000/- (twenty lacs) is payable in cases of death that may be caused due to violent acts. Some of such acts have been described in the circular as acts of extremist or unsocial elements like road mines, bomb blasts, armed attacks, etc. 21. Clearly in the instant case, it appears, the death of Neeraj Tyagi was caused by a violent act inasmuch as he had been run over by a motor vehicle carrying 47 cartons of liquor of Haryana State. Facts speak for themselves. Commonly, during elections, movement of liquor is restricted and the interstate movement is prohibited. 21. Clearly in the instant case, it appears, the death of Neeraj Tyagi was caused by a violent act inasmuch as he had been run over by a motor vehicle carrying 47 cartons of liquor of Haryana State. Facts speak for themselves. Commonly, during elections, movement of liquor is restricted and the interstate movement is prohibited. It appears 47 cartons of illicit liquor were being transported in contravention of restriction and ban inasmuch as the said liquor was being transported in a private motor vehicle which caused the death of Neeraj Tyagi while he was on patrol duty. 22. Thus, it cannot be denied that Neeraj Tyagi died in a violent act caused by unsocial elements. The further intention of the driver of the motor vehicle may not be relevant for the purpose of quantification of ex-gratia compensation in the facts of the present case. Mere mention of certain specific violent acts such as road mines, bomb blasts, armed attacks etc. by way of description of a violent acts, cannot restrict the application of that clause to such acts only in view of the word ‘etc.’ appearing at the end. Clearly the list of events is only indicative and not exhaustive. 23. Even otherwise, this being a piece of welfare provision in the interest of securing a free of fair election, we have to contrast the events mentioned in clause (II) with those mentioned in clause (I) of the circular letter. Clause (I)contemplates minimum compensation payable in cases of natural death of personnel while on election duty. 24. In view of the fact that the deceased was performing patrol duty when he was run over by the motor vehicle carrying illicit liquor and there is no separate clause for computation of compensation for accidental deaths, we have no hesitation to hold that the petitioner is entitled to the higher compensation of Rs. 20,00,000/-, the deceased having died a violent death. The intention of the driver of the Tavera vehicle may not be relevant as clearly he was engaged in an unsocial activity of transporting 47 cases of illicit liquor that he could not have been transporting during election period and which activity, amongst others, the deceased was duty bound to prevent while on patrol. 25. For the reasons stated above, the writ petition is allowed. 25. For the reasons stated above, the writ petition is allowed. A writ of mandamus is issued commanding the Chief Election Officer, U.P. Lucknow respondent No. 4 to pay ex-gratia payment of compensation of Rs. 20,00,000/- (twenty lacs) in terms of the Circular dated 25.4.2014 issued by the Election Commission of India within a period of two months from the date of production of a certified copy of this order. Upon payment of ex-gratia amount of compensation it would be open to the State Government to make claim before the Government of India in terms of the said circular.