The Orissa High Court recently ordered the state government to pay Rs 10 lakh each to the parents of two 4-year-old girls playing at an anganwadi centre who drowned in a pit on September 7, 2012. It ruled that their death was a violation of their constitutional right to life.
The division bench, headed by Chief Justice S Muralidhar, said the tragic deaths were entirely avoidable and would not have occurred if barricades had been erected around the excavated pit. A petition was filed by the fathers of the two children.
Monalisa Naik, the daughter of Jambeswar Naik, and Priyanka Das, the daughter of Pitabas Das, went to the anganwadi operating in Tentulihata Project Upper Primary School in Angul District on September 7, 2012. When the children failed to return after the anganwadi was closed, the fathers searched for them. The bodies of both children were found by the students in waterlogged pits in the school and sent to the local nursing home where they were declared dead.
The petitioners said the pits were left unbarricaded by the school authorities. They had been excavated for laying the foundation for new classrooms. Invoking Article 21 of the Constitution for violation of the right to life of the two children, their parents filed the petition.
The Court observed that apart from a sum of Rs 20,000 paid to each family by the district administration, no other relief had been granted to the petitioners who belonged to the Scheduled Caste. In response to the petition, the district social welfare officer (DSWO) filed a counter affidavit. The fact that both children died due to drowning in the school was not denied. Work had been halted due to heavy rainfall and both pits had filled with rain water up to a depth of 4.5 feet.
In a weak attempt at shifting blame, the DSWO suggested that the incident occurred beyond the working hours of the anganwadi which was from 9 am to 12.30 pm, and during that time, the children were in the custody of their respective parents. Their bodies were recovered around 2.30 pm. Further, it was alleged that there was a footpath to move from the house to the main road, but the family and the girls normally walked through the school campus to reach the main road. This way, the parents were blamed for negligence. However, the Bench refused to accept this.
The DSWO stated that the headmaster of the school had been placed under suspension on September 11, 2012. Instructions had been communicated to all concerned on September 7 itself for taking appropriate measures to prevent such incidents.
The Court noted that PK Das, the counsel for the petitioners, had relied on its own decision in Prabir Kumar Das vs State of Odisha (2013). The case dealt with the death of seven children below five years due to the collapse of a wall of an anganwadi. The Court directed the State to pay Rs 5 lakh to the parents of each of the deceased children and issued a set of directions. Das pointed out that the said judgment was delivered on November 20, 2012, around two months after the tragic incident of death of two little children.
The Court observed that the lack of barricading of the pits or any warning sign appears to be the reason why they had a tragic death. There can be no doubt, therefore, that there was gross negligence on the part of the school management and the district administration for not barricading the pits, it said. The school authorities owed a duty of care to all those who were likely to visit its premises, and with the anganwadi being located therein, it was expected that they would be conscious that young children were bound to visit it.
As part of the right to education of young children, it is within the ambit of Article 45, which requires the State to “endeavour to provide early childhood care and education for all children until they complete the age of six years”, that a safe and secure environment is provided even to children attending anganwadis. On a conjoint reading of Article 21, 39(f) and Article 45 read with Section 11 of the Right to Education Act, it appears that the right to life and the right to education of children encompasses all elements that lead to a healthy and safe environment.
There is also a corresponding duty of the State to make necessary arrangements for early childhood care and education for all children till six years and to prepare children above three years for elementary education.
The Court held that in Nilabati Behera vs State of Orissa, the Supreme Court explained the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in action on tort. The Court said: “It may be mentioned straightway that award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defense in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings.”
Lastly, the Court found that the death of the two little children was entirely avoidable and would not have occurred if barricades had been erected around the excavated pits. A clear case was made out for grant of compensation for violation of the constitutional right to life of the two children. The Court directed that Rs 10,00,000 be paid to each of the petitioners for the deaths of their children. The amount shall be paid by the district administration within four weeks and compliance affidavits shall be filed in the Court on or before November 1, 2021.
—By Adarsh Kumar and India Legal News Service