Nesco Ultility v. Secy, Odisha Human Rights Commission
2021-07-05
BISWANATH RATH
body2021
DigiLaw.ai
JUDGMENT Biswanath Rath, J. - This matter is taken up through video conferencing mode. 2. Sole ground of challenge to the impugned order is that when the Odisha Human Rights Commission is only authorised to recommend for enquiry or any action against the public authority, it has no authority to direct for payment of compensation. 3. Though there is allegation that there should have been enquiry before coming to such ascertainment, learned counsel for the Petitioners admitted that there has been involvement of an enquiry however it is urged by Sri Tripathy that the enquiry involved cannot facilitate determination of compensation. Sri Tripathy also submitted that since use of electricity by manipulation and/or theft the user of such electricity should have been made liable and shifting liability on the head of petitioner remain improper. It is in the premises, a request is made for interfering with the impugned order and setting aside the same for the Commission exceeding powers under the provision of the Protection of Human Rights Act, 1993. 4. Considering such submission particularly at the stage of admission, this Court finds, the provision of Section 12 of the Protection of Human Rights Act, 1993 while discussing the functioning of the Commission including enquiry into complain on violation of Human Rights or abatement thereof. Vide Section 13, it provides power relating to enquiry. Similarly, though Section 16 gives power of the Commission to give hearing opportunity to persons likely to be affected and through Section 18, it provides power of the Commission to recommend the concerned govt. authority to make payment of compensation or damages to the complainant or to the victim members of the family as the Commission may consider necessary. It appears though sub-section (C) of Section 19, the Commission has even the power to recommend to the concerned govt. authority at any stage of the enquiry for grant of such immediate interim relief to the victim or the family members of his family. For relevancy of Sections 12, 13, 16 and 17 of the Protection of Human Rights Act, 1993 is taken into consideration which reads as follows: "12.
authority at any stage of the enquiry for grant of such immediate interim relief to the victim or the family members of his family. For relevancy of Sections 12, 13, 16 and 17 of the Protection of Human Rights Act, 1993 is taken into consideration which reads as follows: "12. Functions of the Commission- The Commission shall perform all or any of the following functions, namely:- (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf [or on a direction or order of any court]1, into complaint of (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant; (b) intervene in any proceeding involving any allegation of violation of human rights pending before a Court with the approval of such Court; (c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government; (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation; (g) undertake and promote research in the field of human rights; (h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; (i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights; (j) such other functions as it may consider necessary for the protection of human rights. 13.
13. Powers relating to inquiries- (1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in respect of the following matters, namely : (a) summoning and enforcing the attendance of witnesses and examining them on oath; (b) discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed. (2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code (45 of 1860). (3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), in so far as it may be applicable.
(4) The Commission shall be deemed to be a civil Court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974) forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973. (5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code, and the Commission shall be deemed to be a civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (6) Where the Commission considers it necessary or expedient so to do, it may, by order, transfer any complaint filed or pending before it to the State Commission of the State from which the complaint arises, for disposal in accordance with the provisions of this Act; Provided that no such complaint shall be transferred unless the same is one respecting which the State Commission has jurisdiction to entertain the same. (7) Every complaint transferred under sub-section (6) shall be dealt with and disposed of by the State Commission as if it were a complaint initially filed before it. 16. Persons likely to be prejudicially affected to be heard- If, at any stage of the inquiry, the Commission:- (a) considers it necessary to inquire into the conduct of any person; or (b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry; it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached. 17.
17. Inquiry into complaints The Commission while inquiring into the complaints of violations of human rights may (i) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it:- Provided that (a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own; (b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly; (ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry." 5. Taking into consideration the grounds of challenge indicated in the writ petition and as submitted during course of argument on admission, this Court on close scrutinize of the provision of Law reflected hereinabove and the discussions made in para-4 hereinabove finds the question required to be determined here is "if the Commission here exercised powers strictly in terms of provisions in coming to decide on the question of compensation?" 6. Reading the JUDGMENT of the State Human Rights Commission impugned herein, this Court finds upon receipt of complaint involved, the Commission as a 1st step sent the copy of application to the Chief Executive Officer of NESCO, Balasore and Executive Engineer, Bhadrak, Electrical Division NESCO, Bhadrak to enquire into the matter. In the 2nd step, upon receipt of report send copy of report both to Sri Radhakanta Tripathy and Sri Babula Sethi parties involved therein and likely to be affected to submit their response. Commission also took note in its order that there is already registration of case vide P.S. No.700, dated 27.11.2015, U/s.304(A)/34 of I.P.C. against the accused Kalandi Mallick on written report Babula Sethi, son of deceased. In the 3rd step the Commission gave opportunity of hearing to both the Executive Engineers and the party likely to be affected.
Commission also took note in its order that there is already registration of case vide P.S. No.700, dated 27.11.2015, U/s.304(A)/34 of I.P.C. against the accused Kalandi Mallick on written report Babula Sethi, son of deceased. In the 3rd step the Commission gave opportunity of hearing to both the Executive Engineers and the party likely to be affected. Based on submission of the Executive Engineer and after coming to observe that the deceased suffered death after coming in contact with either short circuit or un-insulated wire and came to further hold that there remains no doubt involving vicarious liability of NESCO as it was ultimately the owner and custodian of the live wire. Commission's finding is also based on further material disclosing that said Mallick drawn power supply from a small transformer which has been set up near the LT line and there involved a report of the Executive Engineer clearly disclosing that power supply at the spot was taken dishonestly by process of hooking from a substation belongs to NESCO. The Commission in the above circumstance applying the principle of vicarious liability and clear case of neglect in their duty and responsibility of the NESCO has rightly directed for payment of compensation to the next kin of the deceased. This apart, this Court also finds there is heavy in flow of compensation on account of electrocution death in several forms including this High Court every now and then and the electricity company can no more showing its responsibility in guarding its property and power being stolen resulting death of innocents. 7. For the observation of this Court hereinabove, the State Human Rights Commission has considered and reached at its view on compensation in strict compliance of provisions of the Act taken note hereinabove in the involvement of the petitioner and there is no infirmity in the impugned order requiring to interfere with the same. For there is already delay in payment of compensation in the guise of moving the writ petition causing serious hardship with the kin of deceased, this Court while dismissing the writ petition for having no substance directs release of compensation of Rs.4,00,000/- (Rupees Four lakhs) within a period of ten days and filing of compliance report before the Commission within three days thereafter. 8. Writ petition thus stands dismissed. 9.
8. Writ petition thus stands dismissed. 9. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a print out of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's notice No.4798, dated 15th April, 2021.