Madhya Pradesh High Court
The State Of Madhya Pradesh vs Smt. Bhagwati Bai Bhawel on 10 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 10 th OF MAY, 2024
WRIT APPEAL No. 634 of 2022
BETWEEN:-
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARYTO THE GOVERNMENT
OF MP REVENUE DEPARTMENT VALLABH
BHAWAN DISTRICT BHOPAL (MADHYA PRADESH)
2. RELIEF COMMISSIONER 220 RAJASWA RAHAT
BHAWAN, BHOPAL (MADHYA PRADESH)
3. COLLECTOR, DISTRICT BARWANI BARWANI
(MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE DISTT. BARWANI
(MADHYA PRADESH)
5. CIVIL SURGEON CUM HOSPITAL
SUPERINTENDENT DISTRICT HOSPITAL
BARWANI (MADHYA PRADESH)
.....APPELLANTS
( SHRI ANIKET NAIK - DY. ADVOCATE GENERAL FOR THE
APELLANTS/STATE)
AND
SMT. BHAGWATI BAI BHAWEL W/O LATE SHRI
BABULALJI BHAWEL, AGED ABOUT 52 YEARS,
OCCUPATION: HOMEMAKER R/O NEW DRP LINE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI L. C. PATNE - ADVOCATE FOR THE RESPONDENT)
This appeal coming on for admission this day, Justice Sushrut Arvind
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 14-05-2024
17:38:31
2
Dharmadhikari passed the following:
ORDER
Heard finally with the consent of parties.
The present intra Court appeal u/S 2(1) of the Madhya Pradesh Uccha
Nyayalaya (Khand Nayapeeth Ko Appeal) Adhiniyam, 2005 assails the order
dated 04.04.2002 passed in W.P. No. 1397/2021 whereby the writ petition filed
by the respondent claiming compensation under the 'Chief Minister Covid-19
Warrior Welfare Scheme [referred to as 'Welfare Scheme'] on the ground of
death of her husband has been allowed by the learned Single Judge. The
respondent herein had filed writ petition being aggrieved by the order dated
20.11.2020 issued by the appellant no. 2 rejecting the claim of respondent for
extending the aforesaid benefit on the ground of non-availability of Covid-19
test report (RT-PCR) in respect of the Shri Babulal Bhavel [Head Constable
No. 247] - late husband of appellant, who died in harness while performing
duties as Covid-19 Warrior at Police Post , Barwani situated within the premises
of District Hospital, Barwani which was a designated Covid-19, overlooking to
the recommendations made by the appellant no. 3 and 4, while forwarding the
claim of the respondent for extending the aforesaid benefit.
2. Brief facts of the case are that the respondent is a legally wedded wife
and nominee in service record of her deceased husband Late Shri Babulal
Bhavel. The husband of the respondent was hospitalized in District Hospital,
Barwani on 12.07.2020 on complaint of breathlessness and chest pain.
Considering his health condition, he was immediately shifted to the Intensive
Care Unit(ICU) at the hospital on the same day. He was given primary medical
treatment by the Duty Doctor and advised Covid-19 Test finding all the
symptoms of Covid-19 in him. However, no blood sample for conducting the
RT-PCR test was drawn by the treating doctors in the hospital.Finding
suspected case of Covid-19, he was transferred to Covid-19 Trauma Centre at
District Hospital on the same day. His health condition was getting deteriorated
minute to minute and therefore was advised referral to the Advanced Centre for
COVID-19 i.e. M.Y. Hospital, Indore, but on the very same day at 12:00 noon,
he died. Thereafter , the respondent filed an application seeking compensation
under the Welfare Scheme. By order dated 20.11.2020, the claim of the
respondent was rejected on the ground that no Covid test and post-mortem was
conducted. Being aggrieved, the respondent filed a writ petition challenging the
order dated 20.11.2020.
3. The learned Single Judge allowed the writ petition holding that there is
no doubt that the husband of the respondent died while rendering service for
prevention of Covid-19 Pandemic, therefore he is entitled for compensation
under the Welfare Scheme as extended by the order dated 26.09.2020 upto
31.10.2020. The learned Single Judge also set aside the order dated 20.11.2020
and directed the appellants to extend the benefit under the scheme within a
period of two months. Hence, the present writ appeal is filed.
4. Learned counsel for the appellant/State contended that the conditions
mentioned in the welfare scheme are mandatory in nature and not directory as
held by the learned Single Judge. He further contended that the learned Single
Judge has failed to consider Clause 4 of the Welfare Scheme which provides
that the RT-PCR positive report is a pre-condition for claiming compensation.
He further relied on Clause 7 which provides for procedure to be followed
while processing the claim. In the absence of report, the learned Single Judge
ought to have remanded back the matter to the committee to conduct an inquiry
in respect of the fact that whether husband of the respondent was COVID-19
positive and his death took place on account of he being infected with COVID-
19 virus. The documents which are mandatory were not filed by the respondent.
The learned counsel in support of his above submissions has placed reliance on
the judgment passed in the case of Reepak Kansal Vs. Union of India
reported in 2021(9) SCC 251. Relevant excerpts of the said judgment are
reproduced below for convenience and ready reference:
"45. As observed hereinabove, the Government has to
decide its own priorities and reliefs to the different sectors/for
different reliefs. The Government is required to take various
measures in different fields/sectors, like public health, employment,
providing food and shelter to the common people/migrants,
transportation to migrants etc. The Government is also required to
deal with the effect of the pandemic on the economy. As observed
hereinabove, a huge amount is required to be spent from the
NDRF/SDRF, even while providing minimum standards of relief. It
cannot be disputed that ex gratia assistance would also have
financial implications and which may affect the other minimum
standards of relief to be provided to the persons affected by
disaster. No State or country has unlimited resources. That is why
it only announces the financial reliefs/packages to the extent it is
possible. When the Government forms its policy, it is based on a
number of circumstances, on facts, law including constraint based
governmental resources. As observed by this Court in the case of
Nandlal Jaiswal (supra), the Government, as laid down in
Permian Basin Area Rate Cases, 20 L Ed (2d) 312, is entitled to
make pragmatic adjustments which may be called for by particular
circumstances. As observed by this Court hereinabove, the function
of the Court is to see that lawful authority is not abused but not to
appropriate to itself the task entrusted to that authority.
46. Therefore, the Courts would be very slow to interfere with
priorities fixed by the government in providing reliefs, unless it is
patently arbitrary and/or not in the larger public interest at all.
The Government should be free to take policy decisions/decide
priorities (of course to achieve the ultimate goal of DMA 2005,
government should be free to take its own decisions/priorities while
providing minimum standards of relief and even towards
preparedness, mitigation, prevention and recovery), subject to the
availability of the resources/funds and the amount to be spent
towards other reliefs on the aid and advice of the experts and
looking to the circumstances from time to time. Therefore, no relief
can be granted to direct the National Authority/Central
Government/State Governments to pay a particular amount
towards ex gratia assistance on account of loss of life to the family
members of the persons who have died due to Covid-19. It should
be left to the wisdom of National Authority while considering the
guidelines/recommendations of the Finance Commission in its
XVth Finance Commission Report and the funds required for other
reliefs/priorities. The recommendations of the Finance commission
provide sufficient guidelines. However, at the same time, as
observed hereinabove, while recommending guidelines for the
minimum standards of relief to be provided to persons affected by
disaster/Covid-19 pandemic, the authority has to consider
issuing/recommend guidelines on ex gratia assistance on account
of loss of life. As observed hereinabove, ex-gratia assistance on
account of loss of life is part of minimum standards of relief, which
must be considered by the National Authority while providing for
the minimum standards of relief to be provided to the persons
affected by disaster - in the present case Covid-19 pandemic."
5 . The learned Single Judge has erred in allowing the claim of the
respondent by passing the order impugned and as such the same deserves to
be set aside.
6. Per contra, learned counsel for the respondent vehemently opposed
the prayer and submitted that the Welfare Legislation floated by the State of
M.P. to give some respite to the members of family who were effected by the
death of their bread earners during COVID-19 Pandemic. The said Welfare
Scheme has not been framed under any statutory provision and, therefore, on
account of some technicalities, the claim of the respondent cannot be rejected.
In the present case, admittedly, the husband of the respondent was COVID-19
positive. The Welfare Scheme came into force w.e.f. 17.04.2020 and as per
Clause 7 of the Scheme, the Collector is the competent authority to decide the
compensation. In the present case, the Collector as well as the Medical Officer
who treated the husband of the respondent for COVID - 19 have
recommended that for some reasons, the RT-PCR test could not be
conducted looking to the emergent situation at that point of time. It was the
duty of the medical staff to take the blood sample of the respondent's husband
for conducting RT-PCR Test. Even, the treating doctors have initially
recommended to conduct the COVID-19 test, but the same was not conducted
for which, respondent cannot be deprived from her right to claim
compensation under the Welfare Scheme.
7. From perusal of the documents filed alongwith the writ petition, it is
seen that the administrative authorities as well as the medical authorities have
positively recommended the claim of the respondent. However, merely on
technical grounds, the same has been rejected. The learned Single Judge has
rightly arrived at the conclusion that stipulation as regards availability of RT-
PCR test report for proving loss of life as a result of being tested COVID-19
positive is only directory and not mandatory in nature.
8. Learned counsel further submitted that the arguments of the learned
counsel for appellant/State have no legs to stand, in as much as, even if the
matter is referred back to the committee, they are not the medical experts who
can find out the reason of death. In such a situation, the conclusion arrived at
by learned Single Judge need not to be disturbed. Hence, the present appeal is
liable to be dismissed.
9. Heard, learned counsel for both the parties and perused the record.
10. There is no manner of doubt that the welfare schemes makes it clear
that the same have been framed for those employees which were rendering their
services as warriors for prevention during the COVID-19 Pandemic. Clause 4
of the Welfare Scheme covers such persons who suffer loss of life due to
COVID-19. Even though there is a stipulation that a COVID-19 positive report
is a must, but the same has to be construed in the context of which the patient
was admitted and the gravity of medical condition has to be ascertained.
COVID-19 being a very deadly and contagious disease and the emergency in
which the respondent's husband was admitted, inspite of opinion to take the
sample, the treating doctors or the para-medical staff were not in a position to
draw the sample. Moreover, no one knew with regard to floating of this welfare
scheme at that time and what would be the requirement to claim compensation.
In such a situation, the learned Single Judge has not committed any error while
passing the impugned order. He has properly considered the available record.
The provisional diagnosis with regards to the deceased husband itself was of
COVID-19 suspect. All the family members of the deceased including hospital
staff were COVID-19 positive. No RT-PCR test was conducted upon him.
Even the FIR lodged u/S 174 of the Cr.P.C. is on the same lines of husband of
respondent having been a COVID-19 suspect. It is not in dispute that the
deceased died while serving as COVID-19 warrior. Even, the Administrative
authorities and the Medical authorities have specifically suggested that late
husband of the respondent died due to COVID-19 Pandemic. In such a
situation, the intent of Welfare Scheme was to extend financial assistance to
the families of those employees who died while discharging public duty of
COVID-19 warrior.
11. On perusal of the entire record as well as appeal, we do not find
that any error has been committed by the learned Single Judge warranting
interference by this Court.
12. Consequently, appeal fails and is hereby dismissed. No order as to
cost.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
sh
