Waleesh Ahmed (Since Deceased) ... vs Uoi & Ors.
2011 Latest Caselaw 2198 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved On: 18th April , 2011
                      Judgment Delivered On: 26th April , 2011

+                         W.P.(C) 1038/1994

        WALEESH AHMED (since deceased)
        THRU' LRs                            ..... Petitioner
                  Through: Mr.G.D.Gupta, Sr.Advocate with
                           Col.S.R.Kalkal, Advocate

                               versus
        UOI & ORS                            ..... Respondents
                    Through:   Mr.Shashi Mohan, Advocate for
                               Mr.Ankur Chhibber, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J.

1. Having filed the writ petition in February 1994, Waleesh Ahmed could not see the fate of the writ petition since he died on 4.2.2007. His wife Mst.Shahida, his sons Tabish and Nazish aged 20 years and 13 years respectively and his daughter Tabisha aged 18 years as of today, filed CM No.6445/2007 to be brought on record as the legal heirs of Waleesh Ahmed. The application was allowed on 10.4.2008. They were impleaded as petitioners. It has taken further time of a little over 3 years for the writ petition to be heard by us on 18.4.2011.

2. We wish that rough justice was permissible to be

administered by Judges for the reason, the huge traffic jam on the judicial highway can be substantially eased if one is permitted to drive in the by-lanes. But, the opponents of the view would urge that at no cost can justice be sacrificed; not even at the cost of receiving rough and ready justice.

3. Waleesh Ahmed desired to live peacefully in his house. Our decision would result in a structure being made for him, but would house his grave. What use is it to a man that during his life time he is made to stand on the street with hope of being provided with a beautiful structure to live in and by the time the beautiful structure is erected it can only house the grave of the man.

4. Case projected by Waleesh Ahmed was that he was appointed as a Constable under CRPF on 30.5.1991 and was attached to the 122nd Bn. stationed near Gandhinagar and that on 14.7.1991 he was detailed to bring stores for the company from Ahmedabad and for which purpose he proceeded to Ahmedabad in a CRPF vehicle driven by the driver thereof and en-route the vehicle met with an accident in which Waleesh Ahmed was grievously injured, requiring hospitalization at the Civil Hospital Ahmedabad for a couple of months and on being discharged from the hospital and being certified to perform light duties and exempted from participating in the parade, he was assigned light duties of a 'Runner' which he performed satisfactorily till vide order dated 12.1.1993, issued under Section 5 of the CCS (Temporary Service) Rules 1965, his services were terminated. He claims to have made several representations to the DIG praying that he be reinstated and

when informed that he could make an appeal under sub-rule 2 of Rule 5 of the CCS (Temporary Service) Rules 1965, he did so which was rejected vide order dated 12.4.1993.

5. On the afore-noted facts Waleesh Ahmed questions the action taken by the respondents on two counts. Firstly that his services were terminated on account of a stated medical disability and he not being subjected to a medical board required the termination to be set aside and secondly that under a rehabilitation scheme framed by CRPF his entitlement to be rehabilitated was never considered.

6. Not disputing Waleesh Ahmed having suffered grievous injuries at an accident as claimed by Waleesh Ahmed, respondents deny that he was deputed for official work when the accident took place. Denying Waleesh Ahmed of having the status of a constable, respondents assert that he was a simple recruit and claim that the recruits under training at Gandhinagar, on payment, were given a vehicle to proceed to Ahmedabad. Not denying Waleesh Ahmed being hospitalized for a couple of months for serious injuries to his right arm and the face, it is pleaded that initially light duties were assigned to Waleesh Ahmed and his case was sent to superior authorities for consideration whether he could be permanently assigned less laborious duties and since it was found that Waleesh Ahmed was a recruit, undergoing training, his services were terminated.

7. It is writ apparent that the stand of the respondents that Waleesh Ahmed was not a constable and was a mere recruit being wrong, was conceded to be incorrect by

learned counsel for the respondents for the reason, as per Section 5 of the CRPF Act a person who has served the force for 6 months shall be deemed to be a member of the force notwithstanding the person not being formally enrolled as a member of the force.

8. A recruit is a person who does not receive any salary but is given a stipend for the period he remains in training. Undisputably, Waleesh Ahmed had participated at a selection process and was issued a letter of appointment to the post of Constable and it is apparent that under training his status was that of a probationer and it is for this reason the respondents have invoked Section 5 of the CCS (Temporary Service) Rules 1965, which action of the respondents is patently illegal for the reason it is the admitted case that services of Waleesh Ahmed were terminated as he became physically unfit for continuance in service, a situation contemplated by Rule 6 of the CCS (Temporary Service) Rules 1965.

9. It is true that Waleesh Ahmed appears not to have been formally produced before a Medical Board, but the case pleaded in the writ petition, where the petitioner claims to be hospitalized for a couple of months, a fact admitted by the respondents, self evidences the serious disability incurred by Waleesh Ahmed as a result of the accident dated 14.7.1991.

10. That Waleesh Ahmed was assigned light duties, which in spite of best efforts by him, could not be satisfactorily performed by him is also proof of the severe physical handicap suffered by Waleesh Ahmed.

11. During hearing of the writ petition we were supplied photocopy of the medical record of Waleesh Ahmed which shows that as a result of the accident the radius and the ulna bone of the right forearm were fractured requiring rod implantment as also the right mandible being so severely fractured that in spite of repeated operations the same could not be fully retrieved. Till as late as 12.12.1991 i.e. even after 5 months of the accident there was pus and blood discharge from the mandible evidenced by the unit doctor recommending Waleesh Ahmed to be referred to a specialist noting that not only was there continuous pus discharge from the incised wound of the right arm but there was chronic ostiomycetitin i.e. infection in the bone of the right mandible.

12. Thus, we find ample justification in the action of the respondents in dispensing, by way of terminating, services of Waleesh Ahmed for the reason such power existed in the authorities by virtue of Rule 6 of the CCS (Temporary Service) Rules 1965.

13. The claim of Waleesh Ahmed to be rehabilitated is without any justification for the reason the Welfare Scheme is ex-facie applicable to permanent employees and not those who have yet to attain the status of a permanent employee.

14. But, Waleesh Ahmed cannot be left high and dry. It is settled law that on admitted facts, such relief as is permissible by law can always be granted by a Writ Court.

15. The claim of Waleesh Ahmed that he suffered the injury at an accident while on duty may not be correct for

the reason we have no reason to disbelieve the respondents who claim that Waleesh Ahmed and a few other trainee constables were travelling in a CRPF vehicle on payment for personal work, but the fact of the matter remains that Waleesh Ahmed received grievous injuries which rendered him incapacitated for life when he was a passenger in a CRPF vehicle, driver whereof was a CRPF employee, and thus the organization would be vicariously liable to recompense Waleesh Ahmed.

16. In the decision reported as 79 (1999) DLT 342 Darshan & Ors. vs. UOI & Ors. on account of the untimely death of one Sakattur Singh who died due to falling in a sewer due to an uncovered manhole, monetary compensation was granted to his dependents under Article 226 of the Constitution of India. We need not note a catena of authorities holding that on undisputed facts where the State would be vicariously liable, compensation can be paid under Article 226 of the Constitution of India.

17. The claim of the respondents that Waleesh Ahmed was rendered so incapacitated that he could not even perform light duties is proof enough for the benefit of the legal heirs of Waleesh Ahmed, who as we have noted herein above died on 4.2.2007, that Waleesh Ahmed could earn no money to either support himself or his family.

18. Schedule-I to the CCS Extraordinary Pension Rules lists injuries deemed to result in permanent total disability and vide serial No.5 under Part-I is the injury: 'Very Severe Facial Disfigurement'.

19. Now, there is evidence before us, in the form of

Waleesh Ahmed's right mandible being badly shattered to support the conclusion that Waleesh Ahmed's face was severely disfigured. Thus, we have good material before us to opine and conclude that the disability suffered by Waleesh Ahmed was 100% and thus Waleesh Ahmed would be entitled to be compensated 100% of loss of earning capacity.

20. It was the year 1991 when Waleesh Ahmed suffered the injury and we note that consequent to the injury sustained by him, being rendered totally disabled and unfit even for light duties, services of Waleesh Ahmed were terminated on 12.1.1993 and till then he was paid the wages. The claim has to be satisfied thereafter. Waleesh Ahmed was aged around 25 years when he lost his job.

21. The basic salary drawn by Waleesh Ahmed in the year 1993 was `975/- per month, as told to us during arguments in the writ petition. He was receiving allowances in the form of dearness allowance etc. and counsel conceded that the gross emoluments which he was receiving would be at least double the same i.e. approximately `1,800/- per month. The current gross emoluments of a constable under CRPF are around `15,000/- per month.

22. Even if we are to be guided by the law of compensation under the Motor Vehicles Act, since the job which Waleesh Ahmed had was a government job, one could safely treat Waleesh Ahmed's mean average monthly income to be `3,000 per month i.e. `36,000 per annum and upon the multiplier 18 the loss of wages would be `6,48,000/- and this would be the amount to be

recompensed as of the year 1993. Invested in a nationalized bank interest would have enured to the benefit of Waleesh Ahmed and since we are deciding his claim after 18 years, we are of the opinion that interest of justice requires the legal heirs of Waleesh Ahmed to be compensated a sum of `10,00,000.00 (Rupees Ten Lakhs only) as of today.

23. We dispose of the writ petition directing the respondents to pay `10,00,000.00 (Rupees Ten Lakhs only) to the four legal heirs of Waleesh Ahmed with a further direction that the said sum would be disbursed as under:-

      (a)    Mst.Shahida (wife)     :     `5,00,000.00
      (b)    Tabish (son)           :     `1,50,000.00
      (c)    Nazish (son)           :     `1,50,000.00
      (d)    Tabisha (daughter)     :     `2,00,000.00

24. As of today, save and except Nazish, all other claimants are major and thus we direct that money to be received by Nazish would be paid to him under the guardianship of his mother who shall invest the money in a fixed deposit for the benefit of Nazish till he attains the age of 20 years.

25. The money would be paid by means of cheques drawn in the name of the four persons named in para 23 above within a period of 12 weeks from today.

26. No costs.

PRADEEP NANDRAJOG, J.

April 26, 2011                      SURESH KAIT, J.
rk / dk