Negligence of public servants resulting a massive catastrophe
JP Dubey
(Querist) 03 July 2013
This query is : Resolved
Loss of life, limbs and property would have in Kedarnath disaster would been much much less if the public servants responsible for safety and care of the pilgrims - the biggest source of revenue to the state of Uttarakhand had taken the warning of the meteorological department - about very heavy rainfall - which is rarest of rare- seriously and acted promptly. Its own met deptt has been sending advisories since 12 th June and had warned of very heavy rains on 16th. all concerned to delay the chardham yatra and move the pilgrims to safer places. Yet nothing was done. Then for 2 days -17 & 18 nothing was done. Relief and rescue began only after the forces were deployed.
Can the public servants of the government including Ministers and bureaucrats be tried for mass homicide due to negligence, inaction and delay in discharge of their duties? Under what sections of IPC?
R.K Nanda
(Expert) 03 July 2013
NO COMMENTS FOR IT.
JP Dubey
(Querist) 03 July 2013
Trust some other advocate would like to enlighten us in the matter.
Sudhir Kumar, Advocate
(Expert) 03 July 2013
Collect proofs that it was their negligence only. See movie "OMG".
JP Dubey
(Querist) 04 July 2013
It has been widely reported in the papers-like top of TOI that state met deptt had actually issued such warning and ET today says that those heeded Dept's Anand Sharma's advice were saved. It is a larger question of making public servants ( they are paid from tax payers money )accountable for extremely costly negligence.
Sudhir Kumar, Advocate
(Expert) 04 July 2013
Collect proofs that it was their negligence only. See movie "OMG".
Newspaper reporting are not proof enough. The reporters are not eye witness to any event you believe as a crime.
JP Dubey
(Querist) 05 July 2013
Thanks and I really appreciate your reply. This ONLY is the problem otherwise met deptt. records are good evidence. Dehradun center had recorded 370 mms ( half of Delhi's annual precipitation) in one day - on 16th. June. Tv footage show Police now going around warning people of very heavy rainfall and to move to safer places. This was not done on 16 & 17 June. Records of TV, FM and police will show this negligence. I have OMG cd but didn't see it beyond a few minutes.
I repeat that we must do some thing to make the machinery more accountable not only for malafide action but also for delay and negligence. Could you kindly suggest what kind of proof will be needed and if this ONLY thing can be dealt with. I have already sent a prayer to Hon'ble SC.
Raj Kumar Makkad
(Expert) 05 July 2013
Negligence on the part of public administration is a crime and it is also dereliction from official duty. A suffer is fully entitled to demand the due punishment and compensation from such corrupt officials and Governments as held by Hon'ble Apex Court in many judgments.
Evidence of negligence depends upon situation to situation.
prabhakar singh
(Expert) 05 July 2013
It's good that you have already sent prayer
to Supreme Court.If it proceeds all required evidence would be at it's doors.
JP Dubey
(Querist) 05 July 2013
Thank you sir. I sent it per email and speed post on 1 July. If it is not improper I may forward a copy of the same to you or who ever may desire to have one.
Raj Kumar Makkad
(Expert) 05 July 2013
You can take help of the experts in this matter as and when required.
JP Dubey
(Querist) 05 July 2013
Being a lay man I have made a simple prayer. But I am wonder whether such negligence does not fall under s 299 of IPC (iii) with the knowledge that such act is likely to cause death. Every public servants is expected to know the consequences of torrential rains on people climbing or resting on 14 kms of a steep slop. And causing death by inaction by a paid servant who was responsible and expected to act swiftly is as bad as causing it by action.
What about 304A?
Raj Kumar Makkad
(Expert) 05 July 2013
Unfortunately neither section 299 or 304A can be plied against such 'criminal'administration and the State machinery working (not) there.
JP Dubey
(Querist) 05 July 2013
Is there any exemption? Protection against harassment is one thing, so is inadvertent damage or loss due to vagaries of decision taking- but to not act even when such act would have saved 4 thousand lives is different. I believe Hon'ble SC can always interpret IPC sections in proper perspective.If not u/s 299 & 304A then under what section will such negligence and delay causing death of four thousand citizens and grievous injuries to thousand of others will fall?
Raj Kumar Makkad
(Expert) 05 July 2013
Unfortunately the interpretation of the circumstances is molded to such an extent that none has any role in such tragedy and thus the incident is called as HAADSA,
JP Dubey
(Querist) 06 July 2013
Yes it was a Haadsa or unpredictable natural disaster. But Disaster Management is for preventing and managing such haadsa. So is the DM and CM. Despite advance warning- rarest of rare- they not only failed to warn the people or move them to safer places in time, they failed miserably in providing them the relief like drinking water or food or first aid for the first 2 days in which so many died due to thirst, hunger and injuries. This failure is very glaring. There has to be enough evidence of their apathy and negligence in records of their movements before and after the haadsa.
Guest
(Expert) 06 July 2013
Mr. Dubey,
It is quite simple to criticise than to act positively or to help the victims of disasters.
I don't know from which department you had retired, but I can only say that you would also have failed to handle some critical situation some time or the other during your service period having had failed to anticipate the nature and volume of any disaster, as a part of your duty.
You can't anticipate the nature and volume of natural disasters any time. Even the most advanced country, like USA, having the most sophisticated and powerful means to handle disasters fails every year to handle disasters created by several powerful cyclones in that country. Earlier the whole of the very busy bridge of USA sank in a river causing falling of several of vehicles in the river endangering several lives. Even recently a road sank 10 ft. deep in that country creating a very wide gap as a sink hole. Was not that country capable to avoid sinking of road.
So, instead of being emotional on wide publicity by the media and the political parties trying to take political milage of such events, it is better to think about and use the effective means of help to the needy victims of disaster.
If you want to legally try the public servants of the government including Ministers and bureaucrats for mass homicide due to alleged negligence, inaction and delay in discharge of their duties, would you be able to identify the negligent officials, bureaucrats, ministers, etc., out of thousands of such persons and also can you with certainty say that they failed in their duties and responsibilities?
No doubt, if you are litigation saavy, you can try anybody and everybody for any trivial matter also. But, one thing would be sure that neither those people would be available for service to the public, as on labelling them as criminals, they would first be suspended without substitutes to serve public and also would get subsistence allowance to unenessarily burden the exchequer to the misuse of public fund, besides burdening more with the heavy workload on the already overloaded courts.
Better be positive in your thinkings and try to help those who are volunteering their services and throwing open their lives to danger in helping the victims, rather than thinking to enhance the troubles of the country at this difficult juncture of time.
When you have a CD of OMG, better see that in full to realise what is what in the worldly affairs vis-a-vis the natural calamities.
JP Dubey
(Querist) 06 July 2013
Dear Mr. Dhingra,
Thanks for elaborating your thoughts. Please view that I have already said that errors happening due to vagaries of decision making are not being questioned. But not acting on a dire threat that you know may endanger lives of thousands who believed that the government will ensure their safety, is different. By the way how many people died in the recent disaster in USA ( considered equivalent of thousands of nuclear bombs)- 5 or 10?. Why it should be a thousand times as many in our country?
If you can't question administration for such lapses than what do you question it for? Administration being public servant has to be accountable for taking prompt action where ever required. You track call records for petty crimes- whether the police has acted as it should or not then why not here ?
JP Dubey
(Querist) 06 July 2013
By the way Mr. Dhingra this is the first time I have approached any court.Have no political connection and don't watch much TV. And I do my duty by thinking positive. But as a citizen I am hugely pained to see so many deaths of innocent pilgrims who could have been saved or spared the trauma by timely warning and some assistance- which was not there. Setting up of NDMA has not helped. Perhaps some legal action may avert such huge loss in the event of a Natural Disaster or God's act in future.
Guest
(Expert) 06 July 2013
Dear Mr. Dubey,
If you understand that the disaster was thousands times more than those disasters in USA, it is mere exxaggeration of facts due to your ignorance about the worldly happenings by the natural disasteras. Better make such studies first to compare present disaster. Noreover, you are also underestimating the capability of nuclear bonb, when you compare the disasters in USA as "considered equivalent of thousands of nuclear bombs". Even those disasters are not equivalent to a single nuclear bomb, what to say of thousands of nuclear bombs. You should be aware that thousands of nuclear bombs would have totally destroyed America.
About your question, "If you can't question administration for such lapses than what do you question it for," I would prefer to question the general public, who fail to give absolute majority to any single party and the parties are making khichdi Governments to serve their own vested interests leaving aside the common people's interests. So, only you and me should question our acts of putting the selfish people to govern our and decide out futures. It is our own fault if we are helping making khichdi Governments with the parties always busy in fighting with each other and settling scores with the opposite parties by not concentrating on the public interest issues at any time and making the bureaucrats their individual service providers.
Just try your level best, if you are successful to avoid happening of any natural disaster in future through any of your legal action.
JP Dubey
(Querist) 06 July 2013
I am sorry we are going beyond the legal aspects. If you wish to read pl peruse about disasters in USA. Also read about Moore Tornado. winds at 340kms /hr. It had hit only one place not the whole of USA. 24 people had died. It is not natural disaster that I can or wish to prevent, it is the loss therefrom, we are talking about.
prabhakar singh
(Expert) 06 July 2013
Since Origin of TORTIOUS LIABILITY 'ACT of GOD' has been an all time defence to any claim of damages in tort by any kind of defendant.
But the query is certainly some thing different.It pertains to in action of executive machinary and incoherence amongst
it's different organs.
Going through various enactments i have found sections often providing immunity clauses(say insulators of undue protection)
to executive classes of governance.It is same thing as there happened to be once during KINGSHIP TIME that 'KING CAN DO NO WRONG'
Then the question arises have we really departed from KINGSHIP ?
Are we really DEMOCRAT ?
Should laws enacted to rule SLAVE INDIA still have relevance?
Is not it so that though we made a CONSTITUTION to adopt democracy for FREE INDIA but in practice GOVERNANCE continued to be more tricky and more exploiting than those who handed over freedom?
Intentionally GOVERNANCE did not promote education.Let it as it was while adequate reforms were desired as per social need of the country but it was deliberately avoided.The intention has been the same ,rather more dangerous "how to exploit free people of India".
Technically one may be correct that for all this it is "people of free India"who are responsible for these kind of exploitation"
BUT PRACTICALLY WE NEED TO THINK are "people of free India" really FREE?
It is not strange that once any one think denovo he is opposed by the mass of system because to break a preoccupation is somewhat like to struggle with your genes and that is a rarest instinct which not everybody can be blessed with.
JP Dubey
(Querist) 06 July 2013
Thank you Mr Singh. We have seen how an active Hon'ble SC has upheld justice in this country. If we do not question the administration or the KING for not being vigilant, not acting in time and with all his resources to save people under his protege, in the event of an act of GOD, then what do we need the King for? Since there is no legal threat to him he can go about taking his work lightly protecting his self interest in a variety of ways. We question some organs like police for lapses affecting one or a few individuals. Why not others when thousands suffer?
Guest
(Expert) 06 July 2013
Mr. Dubey,
I really wonder on your information of a single tornado to have occured in a single state of USA.
As per my information, in USA, leaving aside other disasters and epidemics, there were:
66 tornados only during a single year of 1999 in four states, Oklahoma, Kansas, Texas, Tennessee of USA.
7 tornadoes during the year 2005 in four states, Missouri, Indiana, Kentucky, Ohio, of USA.
162 tornadoes only during a single year of 2011 in sixteen states, Oklahoma, Texas, Kansas, Arkansas, Mississippi, Alabama, Missouri, Louisiana, Illinois, Kentucky, Georgia, North Carolina, South Carolina, Virginia, Maryland and Pennsylvania, of the USA.
I wish you make some more research before putting your half baked replies.
So far as legal aspects are concerned, aspects of human services and fulfillment of their crisis need are of much more vital importance for me than unnecessary trials in the courts of law. If you think, you can serve the humanity merely by desisting the available official manpower on dragging them to courts of law, I find myself unable to contribute even slightly to your views.
Raj Kumar Makkad
(Expert) 06 July 2013
We endorse your sincere views meant for the welfare of common person but we are unfortunate to intimate you as as on day, there is is no such mechanism available in India but the demand is genuine and a public opinion should be got evolved in the support of this legitimate demand so that our urlers may frame such law and rules.
JP Dubey
(Querist) 06 July 2013
Mr Dhingra I gave just one ex. of the worst in 2013. Lots of material is available on disasters due to various reasons in the USA and elsewhere. So pl don't distort or unnecessarily use terms like half baked. I am sorry not being able to communicate to you properly. As an advocate one takes one side - not necessarily that which one thinks is on the right.
Guest
(Expert) 06 July 2013
Dear Shri Prabhakar ji,
I wholeheartedly endorese your views. In fact, after gaining independence of India, the real independence has gone to the politicians and slavery still remained with the common people of India.
Even if we review the legal system, we still follow the old age British Rule laws, as made in 1800s or so before independence, instead of revising our Acts of law on democratic norms. In fact all those Acts made prior to independence were required to be revised to fit within the framework of the democracy.
Even where the Constitution of India provides some rights to the citizens of India, the subsidiary departmental rules tend to snatch the same from them in certain cases.
Constitution provides for socialism and equality, but still there is a unsocialistic class discrimination in official and public lives. While there is a ban in creation of lower cadre posts, UPSC continues to recruit Class-I (Group-A) posts directly. Even highly talented and much more qualified,even MBAs, in lower grade posts are made to work under those Group-A Officers, out of whom several of them are even simple graduates. Talented departmental officials are not allowed to take the exams of Group-A Officers, as conducted by the UPSC or the State Service Commissions.
I saw even an MA qualified employee was working at the lowest post under some matric pass officials in some organisation. Some organisations have framed dual recruitment rules to discriminate between the different officers of the same rank & position. The irony of fate is that the DOPT of the Government of India approves the different set of rules for the same cadre post without asking for the existing rules or any other set of rules. For example, I noticed two different sets of recruitment rules being in use of the Bharat Sanchar Nigam Ltd (BSNL) for the posts of DGM in that organisation. There are plenty examples of discrimination with one class and the other in this democratic country, as against the constitutional provisions.
JP Dubey
(Querist) 06 July 2013
Mr Makkad and Mr. Singh
As you say there is no remedy for this in IPC. What about adequate compensation to the dead( or missing) or seriously injured?
Is there no remedy there also - no claims only the doles? The issues are alreaduy clear to you:
You invite me through big publicity to visit Dev Bhumi. I accept and visit your place with my family and friends. Then you are informed by your own people that the place has suddenly and temporarily become unsafe and dangerous- a warning they say rarest of rare. You know fully well that the danger may cause death and serious injuries.
But you do not care to inform me in time although you had the means like TV, FM, sms or by public address systems. It would have cost you very little, only a small fraction of what you spend on ad invites or what you collect from me. Then I with all your guests are struck by the act of God and die or are badly traumatized.
Do I legally deserve to be compensated by you?
Raj Kumar Makkad
(Expert) 06 July 2013
Your logic is acceptable but all this is required to be agitated before Supreme court of India under a writ. Only doles are distributed after loss and the distribution system is also on political liking and political benefits.
Guest
(Expert) 06 July 2013
Mr Dubey,
With reference to your post, "I gave just one ex. of the worst in 2013," I don't find in the post if you stated anywhere that the figure was quoted just an example and that was merely for the year 2013. Contrary to that your statement "disasterS" AND "hit only one place not the whole of USA" is very clear to be interpreted any anyone and everyone. Even in 2013, there was not only one fierce Moore tornado in USA, another fierce tornado, named "El Reno" also hit in Oklahamam which revealed extreme winds in excess of 295 mph (475 km/h).
Also, with reference to your allegation, "pl don't distort," just imagine who is trying distort by contradictory statements? You may better review your own post, "if you wish to read pl peruse about disasterS in USA. Also read about Moore Tornado. winds at 340kms /hr. It had hit only one place not the whole of USA."
In my views, you are just passing your time of retired life and trying to waste others time unnecessarily.
However, if you are so serious about trial of the whole of the official machinery including bureaucrats and politicians instead of using some positive actions and remedies, better identify those culprits and place the list here for our knowledge indicating on what count they failed to discharge their prescribed duties and responsibilities. I would be much obliged to you if you publish that list in these pages in support of your query and intention to sue them.
Guest
(Expert) 06 July 2013
You are welcome Prabhakar ji.
JP Dubey
(Querist) 06 July 2013
I'd rather not engage you by point wise reply to further waste your time on this Mr. Dhingra. It can go on and on. So far I am concerned I feel that at this juncture this is what I should have done. Experts had the choice of just ignoring it rather than making it personal.
Thank you Mr Makkad for the clarification.I believe some experts in torts are listening.
prabhakar singh
(Expert) 06 July 2013
A proper step has already been taken by you.
Why are you exploring possibilities of a lawsuit of damages or criminal complaint.
It is govt. concern to see who failed individually in discharging duty.Our
concern is to show that Governance has failed.
JP Dubey
(Querist) 06 July 2013
Thanks Mr. Singh:
The Govt. is yet to bring out the list of dead and injured in the tragedy. There is no announcement of compensation to them. A recent UK Govt ad had shown that they have raised the compensation for death from Rs.3 lakhs to Rs 5 lakhs but will that be paid to all the 4000 and odd persons (including the missing)reported dead is not clear. The amount by current cost of living is very inadequate.
I sincerely believe that something needs to be done to make the Government accountable not just for wrongdoings but also for not being vigilant and taking prompt action in situation like this. Since it is a systemic defect- no real action is expected.Only court orders may perhaps bring about the desired change.
prabhakar singh
(Expert) 06 July 2013
Look Mr.Dubey!
It is true that these calamities can not be stopped and no one can be held liable for them.But when we have some system to foresee or expect them we should also have some system to guard lives before the happening of casualties(properties we can not).So when it was foreseen by government(by it's some functionary) then it was possible for government not to allow people to enter in danger zone (by it's other functionary)and even to take out residing people from the danger zones.
JP Dubey
(Querist) 06 July 2013
Very well said Mr. Singh, precisely. But what are the civil and criminal remedies? Is it possible for an organisation of legal experts of the country to find time for this. Their will be rewards for this, viz.
1.If Court orders can bring about greater sense of accountability,responsibility- and in such cases urgency- it will in itself be a great reward for those who work for it.
2.If the place is made safer for pilgrimage you will have Gods blessings.
3.If bereaved and traumatized families get adequate compensation- look to what is paid in other countries and what we expected from Union Carbide, you get their heartfelt thanks and may on their own then afford and pay your fees. It can be a certain % of compensation. Compensation should be adequate to provide reasonable living to the survivors over a reasonable period of time.
Guest
(Expert) 06 July 2013
Mr. Dubey,
I am sure, you would not engage ne by point wise reply, as you don't have pointwise replies, as usual as have always tried to avoid reply on my points.
Anyway, what remedies you would like to suggest to the government with proposed duties and responsibilities for different categories of Government employees, bureaucrats, ministers, etc., and for what types of different natural calamities, if they happen to occur in future?
I would like to see what arrangements you propose from your side and how those would prove to be effective at different types of situations. If not, it is definitely easy said than done.
prabhakar singh
(Expert) 06 July 2013
Q. But what are the civil and criminal remedies?
A.NONE AT ALL.
This all has been already explored.There is no legislation to claim compensation and in TORT there would be defence 'an act of GOD' Even if some suit in tort is framed with finer distinction whose fate would depend upon what evidence victims dependant's would be able to adduce and what view courts would take and by what time the final outcome would come are the great concerns besides the fact that to initiate such suit cost of suit in name of court fees
would be around 10% of the amount of compensation claimed whose basis would be the earning victim was making before death.It would be NOT that easy to move on this path as being thought by you rather it would prove to be an other calamity on victims dependents.
Nor are there laws where criminal liabilities can be fixed on particular persons.Mr.Makkad has already demonstrated aptly about it.
JP Dubey
(Querist) 06 July 2013
So frustrating. Are there some states where the court fee is less? Filing a few test cases there by somewhat better off victim families may not cost so much and if it succeeds, others may follow citing those cases. But time is a big constraint and there is that big if about the fate of test cases.
Thank you so much for sparing your time.
JP Dubey
(Querist) 12 July 2013
Thanks Sudhir ji. Having already submitted my prayer to Hon'ble SC, I don't know if it will be proper to file a PIL.
