ANIL KUMAR GUPTAversusUNION OF INDIA & ORS.

                         [2016] 5 S.C.R. 939



                      ANIL KUMAR GUPTA                                  A
                                  v.
                    UNION OF INDIA & ORS.
               (Writ Peittion (Civil) No.68 of 2011)
                           JULYOS,2016                                  B

     [T.S. THAKUR, CJI AND UDAY UMESH LALIT, J.J
       Constitution •Of India - Art. 32 - Petition under - In public
interest - In respect of a tragedy which ensued pursuant to a
recruitment drive by Indo-Tibetan Border Police (ITBP) where more
than two lakhs aspiring candidates reached Bareilly (U.P.) - In
                                                                        c
view of swelling number, the ITBP authorities postponed the drive -
Thereafter the crowd rushed to railway station - Hundreds of people
climbed the rooftop of a train - At 60 km from Bare illy an accident
took place at Railway over-bridge as the gap between the train
roof and the bridge was not enough - This resulted in around 20         D
deaths and injuries to many - Petitioners sought directions inter
alia for finding out reasons for loss of lives, for grant of
compensation to the victims and for laying down guidelines for
necessary precautions and care to be taken to avoid such tragedy
- Railways in .. its enquiry report stated that the cause of accident
                                                                        E
was not of railway staff - However, in para. 9.2 of the report it was
recommended that Railway must ensure that there are no
infringements to dimensions as per India11 Railways, Schedule of
Dime11sions, Revised 2004 for overhead fixed structures - ITBP in
its affidavit stated that sta11ding Order No. I of 2011dated14.2.2011
and standing Order No. 5 of 2013 dated 26.2.2013 ensuring that          F
only 600 candidates would be called for recruitment in one drive -
Held: Railway administration was responsible for the accident -
Reasonable care was expected from the administration as
administration alone was in a positio11 to know about the
infringement with regard to certain structures and possible
                                                                        G
implications if the trains were to run at a great speed (7 5 km ph)
with large number of people on roof-top - Direction to Railway
Administration to pay due compensatio11 to the kin of the dead and
to the injured - In order to avoid such tragedy, Railway
Administration is directed to have assessment of infringement and
                                                                        H
                                  939
940            SUPREME COURT REPORTS                       [2016] 5 S.C.R.



A     create a road-map to remove them - A Committee is directed to be
      constituted to have assessment of such infringements and chalk out
      action plan to remove such infringements - Further all Central
      Police Organisations are directed to issue guidelines or Standing
      Orders akin to Standing Order Nos. I of 2011 dated 14.2.20111
      and 5 of 2013 dated 26.2.2013 - Compensation.
B
           Disposing of the petition, the Court
            HELD: 1.1 The Report dated 09.09.2011 indicates that
      requests were made by the Railway and Civil Officials to get the
      roof riders come down from the roof and announcements were
c     made in that behalf. Though the roof riders refused to come
      down, in view of the volatile situation, a decision was taken to
      move the train out of Bareilly. According to the Report, the civil
      and police officials insisted for the movement of the train as quickly
      as possible with an idea to disperse the crowd. One may accept
      this as a reasonable and proper exercise, as the crowd had to be
D     dispersed which had congregated in Bareilly. However, this does
      not explain and justify further movement of the train for more
      than 60 K.Ms from Bareilly Station. What is more worrisome is
      that the fact that train was running at a speed of 75 kilometers
      per hour. Those who were in charge of Railway Administration
E     in the concerned Divisions ought to have taken sufficient
      precaution. The Administration can certainly be taken to be aware
      of the fact that the Foot-Over Bridges or any structures on the
      way could possibly be a hindrance and could have caused such
      incident with people in large number on roof top. The
      Administration alone would be in a position to know about the
 F    existence of infringements with regard to certain structures and
      what could be possible implications if the train were to run at a
      great speed with large number of people on roof top. Reasonable
      care would naturally be expected of those incharge of the
      Administration. Therefore, the Court cannot agree with the
G     conclusion in the Report that Railway Administration was not
      responsible. [Para 12-13] (952-F-H; 953-A-C]
            Chairman, Railway Board v. Chandrima Das (2000) 2
            SCC 465: 2000 (1) SCR 480; MS. Grewal v. Deep
            Chand Sood (2001) 8 SCC 151: 2001 (2) Suppl. SCR
H           156 - relied on.
      ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                       941



      1.2 It was expected of the persons concerned to be aware         A
of the inherent danger in allowing the train to run with such speed
having large number of persons travelling on roof top. Though
the people who travelled on roof top also contributed to the
mishap, the Railway Administration, was not free from blame.
Therefore, it is directed that the next of kin of those who died in
                                                                       B
the incident and those who sustained injuries must be duly
compensated by the Railway Administration. Those who died
were obviously very young in age for they had come to compete
for the jobs. Railway Administration is directed to pay: (a)
Compensation of Rs.5 lakhs to the next of kin in case of en~ry
death; (b) Compensation of Rs.1.5 lakhs in every case of               c
permanent disability suffered by anyone in the incident; (c)
Compensation of Rs.75,000/- in case of any grievous injury
suffered by anyone; and (d) Compensation of Rs.25,000/- in case
of simple injury suffered by anyone. [Para 17] (954-H; 955-A-D]
      1.3 In Para 9.2 of the Enquiry Report dated 9.9.2011, it was     D
recommended that Railway must ensure that there are no
infringements to any of the dimensions as per Indian Railways,
Schedule of Dimensions, Revised, 2004 for any of the overhead
fixed structures like FOBs, ROBs, etc. and for this a special
drive should be launched by Railway Administration for removal/
regularization of the infringements. Despite the                       E
recommendations/direction in Paragraph No. 9.2, Railway
Administration has not considered collecting data in Divisions
other than Lucknow Division whether there are any infringements
as per Schedule of Dimensions stated in said Paragraph 9.2.
The Administration must take every care so that such tragedy           F
is not repeated. The first step in that behalf is to have an
assessment if any such infringements exist and then to create a
road-map to remove such infringements. Therefore, the Railway
Administration is directed to implement directions stated in
Paragraph No.9.2. The Committee headed by a senior officer
                                                                       G
and assisted by at least three persons from the administration
having technical knowledge and expertise be constituted to have
an assessment of all such infringements and to chalk out an action
plan to remove such infringements. It is possible that in some
cases road over-bridges may have been built by State
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942           SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A     Governments, Municipal Administrations or such bodies.
      Nonetheless, the action plan must contemplate ways and means
      to deal with and remove such infringements. The Committee as
      aforesaid be constituted within a period of four weeks from the
      date of this order. As regards the infringements pointed in
      Lucknow Division, the aforesaid Committee shall take immediate
B
      steps. If the clearances are specified and stipulated in Schedule
      of Dimensions Rules, 2004 the Committee may do well to ensure
      strict compliance. Every dispensation sought, may be considered
      threadbare and be granted only as a last resort. The Committee
      is directed to complete the work as early as possible so that all
c     infringements could be removed in shortest possible time and,
      in any case, not later than two years. The Committee is further
      directed to file periodic status Reports every six months in this
      Court. [Paras 5, 18, 19 and 20) [948-C-E; 955-D-H; 956-B]
           2. Further, all Central Police Organisations must issue
D     guidelines or Standing Order akin to Standing Orders Nos. 1 of
      2011 and 5 of 2013 of ITBP ensuring that only 600 candidates or
      such number of candidates as could easily be managed or taken
      care of be called in one cycle on a particular day. For compliance
      in that behalf, a copy of this Order be sent by the Registry to the
      Secretary, Ministry of Home Affairs. [Para 22) (956-D]
E
                             Case Law Reference
           2000 (1) SCR 480                relied on            Para 14
           2001 (2) Suppl. SCR 156         relied on           ·Para 15

F          CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 68
      of2011.
           Under Article 32 of the Constituion of India.
           Anil Kumar Gupta (In-person), B. P. Gupta, Adv. for the Petitioner.
           Ms. Pinky Anand, ASG, Rana Mukherj i, Sr. Adv., Ms. Ranjana
G
      Narayan, Ms. Snidha Mehra, Sayeed A. Haseeb, Shalinder Saini, Ms.
      Sushma Suri, Arvind Kumar Sharma, Shreekant N. Terdal, Anuvrat
      Sharma, Advs. for the Respondents.
           The Judgment of the Court was delivered by

H
       ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                              943



       UDAY U. LALIT, J. 1. This petition under Article 32 of the             A
Constitution of Jndia has been filed in public interest by an Advocate
practising in this Court highlighting an incident that occurred on 01.02.
2011 near Mohammadabad Crossing in Shahjahanpur Division in State
ofUttar Pradesh. The petitioner has prayed for directions, inter alia, for
finding out reasons for loss oftives, for assessnient of damage to property
                                                                              B
and for grant of compensation or financial assistance to victims. He has
also prayed for directions for laying down guidelines for necessary
precautions and care to be taken so that such tragedy is not repeated
again.
      2. The incident highlighted in the petition was:-
                                                                               c
      a. In a recruitment drive aimed at filling up 416 posts of Class IV
      employees, lndo Tibetan Border Police (ITBP, for short) had call.ed
      candidates from eleven States at its headquarter located at Bareilly,
      a small town in Uttar Pradesh on 1.2.2011. The aspiring candidates
      for said posts were required to remain present in person and submit
      their forms for registration. In response to said recruitment drive,     D
      aspirants started arriving at Bare illy and by morning of 1.02.2011
      more than two lakh aspirants had arrived. The gathering was
      swelling and increasing in number. The officers of ITBP found
      themselves incapable of managing the situation because of such
      large gathering and as such they suspended and postponed the             E
      drive.
      b. The consequent resentment and shouting of slogans in protest
      by aspirants provoked the higher officers of ITBP to use lathi
      charge to push the crowd. This resulted in a chaotic situation with
      some aspirants resorting to violence. The armed police then had          F
      to use tear gas shells to disperse the crowd. Massive disturbance
      and lawlessness prevailed all over the town causing law and order
      problem. Some buses were burnt and damage was caused to public
      and private property. In the backdrop of such situation the crowd
      of aspiring candidates rushed to rail and road terminals to return
      back to their homes.                                                     G

       c. Because of congestion and crowd in large members, the train
       coaches were all jam packed. Hundreds of young men then
       climbed atop Himgiri Express that was on its way to eastern U.P.
       and Bihar from where large number of aspirants.had come.
                                                                               H
944            SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A           d. When Himgiri Express left Shahjahanpur Railway Station with
            hundreds of men on rooftop and headed towards Rosa town, an
            accident took place at Hathaurda Railway Over Bridge near
            Mohammadabad crossing in Shahajahanpur. The Railway Over
            Bridge was not tall enough and the gap between the roof of the
            coach and the bottom of the over bridge was hardly three feet.
B           The train was speeding fast and by the time the young men on
            rooftop saw the approaching bridge it was too late. At least 14
            young men were crushed there and then with 20 others seriously
            injured having been hit by the Over Bridge and fallen from roof
            top. At this time, some high tension wire broke and fell over the
 c          train as a result of which some received electric shocks. Despite
            this mishap, the train continued running for a while and it finally
            stopped some 3 kms from the place of incident.
            e. The rooftop of coaches was full of blood. The dead bodies and
            injured were brought down. People rushed back to find out those
 D          who had fallen from the roof top. The train driver, guard and
            other employees had run away from the spot.
            f. The incident provoked those young aspirants, some of whom
            torched two coaches of the train. What followed thereafter was
            total chaos putting tremendous pressure on the Administration in
 E          canying out relief work and taking injured to Hospitals for medical
            attention.
           3. With the aforesaid assertions this petition was filed on 7.2.2011.
      In the meantime Railway Administration had ordered an enquiry. By
      interim order passed by this Court the respondents were directed to
 F    submit the Report pursuant to enquiry instituted by them. Consequently,
      Enquiry Report dated 09.09.2011 by Mr. Raj Kumar Kardam,
      Commissioner of Railway Safety, Northern Circle, New Delhi was placed
      on record. The record indicates that this Report was preceded by
      Prelimnary Report dated 23.02.20 I I. The relevant portions of Chapter 7
      of the Report dated 09.09.2011 under heading "Discussion" are as under:-
 G
               "Time of the accident
               ...... As per the statement of loco pilot, assistant loco pilot and
            guard of train no. 12332 Dn Jammu Tawi-Howrah Himgiri Express,
            the train passed Shahjahanpur station at 16:23 hrs. The other
            records also show that this train passed Shahjahanpur station at
 H
ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                                 945
           [UDAY U. LAUT, J.]

16:23 hrs a few passengers travelling on the roofs of the coaches          A
of this train got struck against the Public Foot Over Bridge located
at LKO (East) end in Shahjahanpur Yard near the end of the
platform.
   7.2 Speed of the train at the time of accident:
   Diesel loco No. 11133 WDM-30 LKO of train no. 12332 On                  B
Jammu Tawi-Howrah Himgiri Express was provided with Medha
Speed Time Distance Recording System Type MRT 918. Analysis
of speedometer recording of his loco was made CRSE/CHg/NR
in his technical note on the accident. Copy of the same is enclosed
as Annexure-X. As per the speed and time observations analysis             c
done by CRSE/Chg./NR, the speed of the train no. 12332 On at
the time of passing under the public foot over the bridge located
at LKO (East) end in Shahjahanpur Yard was assessed as 75kmph.
A few passengers travelling on the roofs of the coaches of this
train got struck against the Public Foot Over Bridge located at
LKO (East) end in Shahjahanpur Yard nearthe end of the platform.           D

   From the above, the speed of the train no. 12332 On at the
time of accident is thus considered as 75 kmph.
   7.3 Cause of the Accident:
   From the particulars of injuries suffered by the roof travelers,        E
it was observed that most of the persons injured had been hit in
the upper portion of their heads. It was also evident that injuries
were caused to passengers, who were traveling and sitting/standing
on the roof of the coaches. An incident of hitting of an obstruction
resulting in such type of injuries to the roofriders could be caused,
                                                                           F
in all probabilities by striking against the existing foot over bridge,
road over bridge etc.


   Evidence available reveals that before starting the trains, all
possible efforts were made by the railway and civil officials to get       G
the roofriders come down from roof. Continuous announcements
were made through public address system and loud hailers.
ADRM, Sr. DSC/RPF, SP/Railway and civil authorities were
continuously monitoring the situation. However the roof riders
refused to come down from the roof top of the coaches. They
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946      SUPREME COURT REPORTS                         [201615 S.C.R.



A     were also throwing stones on passengers and officials. Large
      number of "JYREENS" had also gathered at railway station and
      approached ADRM for help and protection. Jn this situation,
      possibilities of taking incidence a tum to communal violence were
      very much there, as this area is a communal sensitive area and
      has passed through communal violence very recently (March 2010
B     and August 2010). In view of above, the situation had become
      highly volatile and had the decision to move the train was not
      taken at that time by the railway; the violent crowd would have
      damaged the station property and trains on the platforms and could
      have resulted in stampede and unmanageable situation at the
c     railway station. OM/BE, JG/BE, DIG/BE, SP/BE and other Civil
      and Police officials were themselves available at Bareilly station
      to watch and control the situation. They also insisted for the
      movement of the trains as quickly as possible and in whatever
      manner. The idea was to disperse the crowd as early as possible.
      The situation was even being watched at Rampur station by OM/
D     Rampur and SP/Rampur who were themselves available at
      Rampur station. At Rosa station also ADM, ASP, Co were present
      themselves to control the situation.


 E        In the above circumstances, when 2332 On Jammu Tawi-
      Howrah Himgiri Exp. Train running at a speed of 75kmph
      approached the Shahjahanpur public foot over bridge at km
      1237.255 km with passengers travelling and sitting/standing on
      the roof of the coaches, few passengers sitting and traveling on
      the roofs of the coaches got struck against the Public Foot Over
 F    Bridge situated at the Lucknow (East) end of Shahjahanpur
      railway station.
          7.5.2 There was an infringement of 55 mm in the vertical
      clearance at the Public Foot Over Bridge, Shahjahapur as per the
      Indian Railways, Schedule of Dimensions, Revised, 2004. CE/
G     P&D/NR prepared a technical note in this connection and a copy
      of the same is enclosed as Annexure-XIV. Details have been
      given in his letter No. 1-W/O/Accident/MB/Pt. IV dated 04.05.2011,
      a copy of which is enclosed as Annexure-XV. Northern Railway
      Administration has given his comments on item No. 2 of my
H     immediate recommendations of Preliminary Report vide CSO/
       ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                              947
                  [UDAY U. LAUT, J.]

      NR's letter No. I OT/Spl./Occurrence/MB/2011dated20.06.2011             A
      (Annexure XXVllI) and as per this railway has to take further
      action in removing/regularizing the infringements.
           Railway must ensure that there are no infringements to any
      of the dimensions as per Indian Railways, Schedule of Dimensions,
      Revised, 2004 for any of the overhead fixed structure like FOBs,         B
      ROBs etc. For this a special drive should be launched by Railway
      Administration for removal/regularization of the infringements.
           7.5.3 On scrutiny of the Steel Structure Register of !OWI
      SPN and Bridge Inspection Register for ROB/FOBs of ADEN/
      SPN, it was seen that though the inspections were being carried          c
      out regularly but the vertical clearances from the rail level to this
      fixed structures like FOB, ROBs were not being measured during
      the inspections as this have not been prescribed in the Proforma
      available for recording the various parameters. Clearance is an
      important item as these may get changed due to track renewals,
      change in ballast cushion or any other reason resulting into the rail    D
      level being raised and may infringe the Schedule of Dimensions.
      Therefore it is very much essential that proper record and upkeep
      of such an important item is kept.
      Railway Administration should issue a standard Profonna for Steel
      Structure Register and Bridge Inspection Register to be maintained       E
      for the inspection of ROB/FOBs which should also include the
      item of measurements to be taken for clearances.
         7.6 Role of Railway officials and others:
      No railway officials were found to be responsible for the accident
      as such this aspect i~ not discussed in the Report.                      F
      The primary responsibility rests with those persons who travelled
      on the roofs of coaches in violation of Section 156 of the Indian
      Railways Act, 1989."
      4. In Chapter 8 titled "Conclusions" it was stated in the Report as
under:-                                                                        G

         "8.1 Cause of the accident:
                            '\
          8.1.1 Having carefully considered the factual, material and
      circumstantial evidences available at my disposal, I have come to
      the conclusion that unusual occurrence to a few passengers
                                                                               H
948            SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A           travelling on the roofs of the coaches of train no. 12332 Dn Jammu
            Tawi-Howrah Himgiri Express at km 1237.255 in Shahjahanpur
            Yard between Shahjahanpur and Rosa railway stations on
            Moradabad-Shahjahanpur-Lucknow, Broad Gauge, Double Line,
            non-electrified Section ofMoradabad Division ofNorthern Railway
            on 1.02.2011 occurred due to a few passengers sitting and travelling
B
            on the roof of the coaches got struck against the Public Foot
            Over Bridge situated at the Lucknow (East) end ofShahjahanpur
            railway station.
              The accident is classified under the heading of "FAILURE
            OF PERSONS OTHER THAN RAILWAY STAFF".
c
           5. In Chapter 9 titled "Remarks and Recommendations"
      Paragraphs 9.2 and 9.3 of the Report were as under:-
            "9.2 Rai Iway must ensure that there are no infringements to any
            of the dimensions as per Indian Railways, Schedule of Dimensions,
o           Revised, 2004 for any of the overhead fixed structures like FOBs,
            ROBs, etc. For this a special drive should be launched by Railway
            Administration for removal/regularization of the infringements.
            9.3 Railway Administration should issue a standard Proforma for
            steel structure register and bridge inspection register to be
E           maintained for the inspection of ROB/FOBs which should also
            include the item of measurements to be taken for clearances."
            6. After hearing the counsel and considering the aforesaid Report
      and other documents on record, while reserving the matter for orders,
      this Court passed following order on 17.2.2016:-
 F          "Arguments heard.
            Judgment reserved.
            Learned counsel for the respondents-Union oflndia and Railways
            shall within three weeks from today file an additional affidavit
            along with the relevant documents indicating the following:
G
            I. Names and particulars of the persons who died or were injured
            in the incident that took place on !st February, 2011 involving
            Train No.12332 On. Jammu Tawi-Howarh Himgiri Express in
            Shahjahanpur Yard.
H           2. Whether any ex-gratia payment has been made to the next of
       ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                              949
                  [UDAY U. LAUT, J.]

      kin to those dead or to the persons who sustained injury, 'if so, the   A
      amount paid to them.
      3. The steps that have been taken by the Railways to remove
      infringement of Foot Over-Bridges (FOB) in Lucknow Division
      as set out in Annexure XXVlll/2 to Report dated 9th September,
      2011 submitted by Mr. Raj Kumar Kardam, Commissioner of                 B
      Railway Safety, in regard to the incident mentioned above.
      4. Whether the Railways are aware that there are similar other
      infringements, FOB or ROB, in regard to the other railway divisions,
      if so, whether any steps have been taken to identify such
      infringements and to rectify the same, in particular, whether the       c
      Rai Iways have taken any steps in regard to Recommendation 9 .2,
      made by the Commissioner of Railway Safety in the Report
      mentioned above. Ifno steps have been taken the reasons for the
      omission a11d the time-frame within which the Railways shall do
      the needful.
                                                                               D
      5. The steps that have been taken or proposed to be taken by the
      Government to avoid sifoations like the one referred to in the writ
      petition where lakhs of people descended simultaneously in the
      town ofBareilly in connection with the proposed recruitment for
      l.T.B.P., in the matter of streamlining/rationalising the method of
      recruitments and procedures to avoid the unmanageably large              E
      crowds who came to participate in such recruitment rallies.
      6. Circulars/orders/notifications, if any, issued to regulate such
      recruitment process, rail ies and crowds that assemble in connection
      with the same shall also be placed on record.
                                                                               F
           Needful be done within a period of three weeks."
      7. In compliance of the aforesaid Order dated 17.2.2016, an affidavit
has been filed by J.N.Meena, Div. Commercial Manager, Northern
Railway, Moradabad. With regard to directions I to 4 above-named.
The affidavit states that following 20 persons died as a result of the
                                                                               G
incident in question:-
      " I. Deepak s/o Mohit, Age 22 years, Rio Village. Mohva Bujurg
      PS Choori Choora Distt. Gorakhpur.
      2. Ram Asrey S/o Masaipal, Age 20 years, Rio Khemapur Jansa,
      Varanasi.                                                                H
950     SUPREME COURT REPORTS                         [2016] 5 S.C.R.


A     3. Anil Kumar, S/o Sh. Ameer Chandr Bathora, Age 25 years, RI
      o Ps. Dhanapur Chandauli.
      4. Rahul Kumar, S/o Vedehi Saran, Age 25 years, Rio Hiroosa Ps
      Rohan Jhansi.
      5. Sarvoday Kumar, S/o UdayKumar Singh, Age 20 years, Rio
B     Village Bansekhan Tola Ps Aurangabad.
      6. Shayam Sundar Yadav. S/o Bhola Nath Yadav, Age 26years, RI
      o Village Yuvrajpur PS. Shoej, Gajipur.
      7. Sukh Ram, Age 30 years, Rio Unknown
c     8. Arun Kumar Pandey, S/o Ram Chandra Pandey, Age 20 years,
      R/o Village Bhanhi Pandeypurva, P/S Munshiganj Garuriganj
      Sultanpur.
      9. Sunil Kumar Yadav, S/o Ved Prakash Yadev, Age 22 years, RI
      o Laxhmanpur, P/S Choori Choora Gorakhpur.
D     10. Devendra, S/o Bhasol Singh, age 20 years, Rio Viii Lahara,
      P.S. Kotwali Dehat, Distt. Aita.
      11. Ram Pravesh, S/o Ramaserey, Rio Mahuava Ps. Choori
      Choora, Gorakhpur.
E     12. Ajay Kumar, S/o Sukhraj, Rio VilJ Seepur Rakva, Post Raipur
      Rakwa P/S Choori Choora Gorakhpur.
      13~ Ravi Kher, S/o Prakash Kher, Rio Singar P.S Gursaray Jhansh

      14. Shailesh, S/o Mithailal, Rio MaupurChota Tola, Choori C110ora
      Gorakhpur.
 F
      15. Purushottam, S/o Gayalal Yadav, Rio Maupur Chota Tola P.s
      Choori Choora Gorakhpur.
      16. Angad Avdhesh Chauhan, S/o Jiut Chauhan Rio Maupur Chota
      Tola, P.S Choori Choora Gorakhpur.
G     17. Raj iv Jaiswal, S/o G.N. Jaisural, Rio Devmoov PS Gauribaja,
      Distt. Devariya.
      18. Satish Kumar, S/o Pawan Kumar, Age 24 years, Rio Village
      Mahuani, P/S Avtar Nagar Chhapra Bihar.
      19. Soun Kumar Gupta, S/o Bayag Bapu Prasad, Age 21 years,
H
       ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                            951
                  [UDAY U. LAUT, J.]

      R/o Village Mahuani, P/S Avtar Nagar Distt. Chhapra Bihar.             A
      20. Saleam Ansari, S/o Barkhu Ansari, R/o Village Aurai Kalan,
      P/S Bheampra, Distt. Baliya."
      8. The affidavit further stated that no ex-gratia payment was made
to any injured or relative of any person who died in the incident. As
                                                                             B
regards direction No.3 regarding Lucknow Division it was stated:-
            '"Steps taken by Railways to remove infringement of Foot
      Over Bridge in Lucknow Division. In this respect it is submitted~·
      that the action plan for the removal of infringement ofFOBs in
      Lucknow Division submitted by Sr. DEV/C Northern Railways
      Lucknow vide letter no. DRM/LKO/Engg/ FOB/15 dated                     c
      29.02.2016 is annexed with this affidavit."
      A tabular chart giving details regarding required clearances and
actual available clearances as well as the nature and extent of
infringement in respect of 17 cases from Lucknow Division was also
appended to the affidavit.                                                   D
       9. With respect to direction No. 4 what has been placed on record
are communications dated 17.03.2011and28.5.2012 which were issued
after the Preliminary Report dated 23 .02.2011 and the aforesaid Report
dated 09.09.2011 respectively. These communications quoted relevant
paragraphs of the respective Reports and stated that a special drive be      E
undertaken. We also have on record a letter dated 04.03.2016 from
Railway Board addressed to Chief Claim Officer, Headquarter Office,
New Delhi, saying that a special drive was launched vide letter dated
17.03.2011. What happened as a result of such special drive has however
not been placed on record. Nothing has been placed on record if similar
                                                                             F
infringements are found present in Divisions other than Lucknow Division
and if so what safety measures are undertaken or are to be undertaken
and what is the road map for removing such infringements. It appears
that despite Paragraph 9 .2 of the Report dated 09.09.2011 no assessment
of any kind has been undertaken in Divisions other than Lucknow Division
and consequently nothing has been placed on record.                          G

      10. An affidavit has also been filed by Harendra Kumar, Senior
Administrative Officer, Directorate General, Indo Tibet Border Police
Force, Ministry of Home Affairs, Government of India dealing with
Direction Nos.5 and 6. In response to Direction No.5 the affidavit states
as under:                                                                    H
952            SUPREME COURT REPORTS                            [2016] 5 S.C.R.



A           "Reply to Direction No.5 - It is respectfully submitted that after
            this incident the respondent/ITBP has not conducted open rally
            based recruitments. The candidates are now being called for
            physical efficiency test and physical standard test by post only
            under the supervision ofa Nodal Officer in a limited and controlled
            manner. State administrative authorities at district and higher levels
B
            are being informed well in advance regarding, the time venue,
            date and timing of recruitments and are requested to ensure
            adequate arrangements to maintain law and order outside the ITBP
            recruitment venues. The Presiding Officers ofrecruitment boards
            and Nodal Officer have been directed to maintain close liaison
c           with district administration. A provision has been made in the
            Standard Operating Procedure of the recruitment that not more
            than 600 candidates will be called at one recruitment center at a
            time for recruitment test of physical efficiency test and physical
            standard test etc. In the case of Constable (Tradesmen) recruitment,
            600 candidates are being called in two days cycle at each centre."
D
            11. As regards Direction No.6, the Affidavit goes on to state that
      Standing Order No. I of201 l dated 14.02.2011 and Standing OrderNo.S
      of2013 dated 26.02.2013 were issued ensuring that only 600 candidates
      would hereafter be called in one cycle on a particular day. To similar
      effect is the Standing Order dated 26.02.2013. However these Standing
 E    Orders pertain to ITBP alone and it is not clear whether similar Standing
      Orders are issued and are in operation as regards other Central Police
      Organisations.
             12. The Report dated 09.09.2011 indicates that requests were made
      by the Railway and Civil Officials to get the roofriders come down from
 F    the roof and announcements were made in that behalf. Though the roof
      riders refused to come down, in view of the volatile situation, a decision
      was taken to move the train out ofBareilly. According to the Report, the
      civil and pol ice officials insisted for the movement of the train as quickly
      as possible·with an idea to disperse the crowd. One may accept this as
 G    a reasonable and proper exercise as the crowd had to be dispersed
      which had congregated in Bareilly. However, this does not explain and
      justify further movement of the train for more than 60 KMs from Bareilly
      Station. What is more worrisome is that the fact that train was running
      at a speed of 75 kilometers per hour.

H           13. Those who were in charge of Railway Administration in the
         ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                              953
                    [UDAY U. LAUT, J.]

concerned Divisions ought to have taken sufficient precaution. The               A
Administration can certainly be taken to be aware of the fact that the
Foot-Over Bridges or any structures on the way could possibly be a
hindrance and could have caused such incident with people in large
number on rooftop. The Administration alone would be in a position to
know about the existence of infringements with regard to certain
                                                                                 B
structures and what could be possible implications ifthe train were to
run at a great speed with large number of people on rooftop. Reasonable
care would naturally be expected of those incharge of the Administration.
We therefore do not agree with the conclusion in the Report that Railway
Administration was not responsible.
      14. In Clwirnum, Railway Board v. Cluuulrima Das while        1
                                                                        ,
                                                                                 c
considering the liability of Railways when some of the employees had
taken a lady from Bangladesh to Rail Yatri Niwas and subjected her to
rape, it was observed by this Court,
         "42. Running of the Railways is a commercial activity. Establishing
         the Yatri Niwas at various railway stations to provide lodging and      D
         boarding facilities to passengers on payment of charges is a part
         of the commercial activity of the Union of India and this activity
         cannot be equated with the exercise of sovereign power. The
         employees of the Union of India who are deputed to run the
         Railways and to manage the establishment, including the railway         E
         stations and the Yatri Niwas, are essential components of the
         government machinery which carries on the commercial activity.
         If any of such.employees commits an act of tort, the Union
         Government, of which they are the employees, can, subject to
         other legal requirements being satisfied, be held vicariously liable
         in damages to the person wronged by those employees."                   F

      15. In M.S. Grewal v. Deep Cit and Sooll- this Court considered
the concept, "Duty of care" in a fact situation where teachers who had
accompanied school children for a picnic on the bank of a river when
the mishap happened and stated as under:-
                                                                                 G
         "16. Duty of care varies from situation to situation - whereas it
         would be the duty of the teacher to supervise the children in the
         playground but the supervision, as the children leave the school,
1
    (2000) 2 sec 465
2
    (ZOOIJ s sec 151                                                             H
954            SUPREME COURT REPORTS                             [2016] 5 S.C.R.



A           may not be requi·red in the same degree as is in the playfield.
            While it is true that if the students are taken to another school
            building for participation in certain games, it is sufficient exercise
            of diligence to know that the premises are otherwise safe and
            secure but undoubtedly ifthe students are taken out to a playground
            near a river for fun and a swim, the degree of care required stands
B           at a much higher degree and no deviation therefrom can be had
            on any count whatsoever. Mere satisfaction that the river is
            otherwise safe for a swim by reason of popular sayings will not
            be a sufficient compliance. As a matter of fact the degree of care
            required to be taken, especially against the minor children, stands
c           at a much higher level than adults: children need much stricter
            care.


            "23. Turning attention, however, on to the issue of vicarious liability,
            one redeeming feature that ought to be noticed at this juncture is
D           that to escort the children was the duty assigned to the two
            teachers and till such time thus the period of escorting stands
            over, one cannot but ascribe it to be in the course of employment
            - the two teachers were assigned to escort the students: the
            reason obviously being- the children should otherwise be safe
E           and secure and it is the act ofutter negligence of the two teachers
            which has resulted in this unfortunate tragedy and thus it is no
            gainsaying that the teachers were on their own frolic and the
            School had done all that was possible to be done in the matter -
            safety of the children obviously was of prime concern so far as
            the school authorities are concerned and till such time the children
 F          returned to school, safe and secure after the picnic, the course of
            employment, in our view continued and thus resultantly, the liability
            of the School
           .16. In Chandrima Das (supra) compensation of Rs. I 0 lakhs as
      awared by the High Court was upheld while in M.S. Grewal (supra) this
G     Court sustained the order awarding compensation of Rs.5 lakhs in case
      of death.
         · 17. Jn the backdrop of the aforesaid precedents, in our view, it
      must be expected of the persons concerned to be aware of the inherent
      danger in allowing the train to run with such speed having large number
H
       ANIL KUMAR GUPTA v. UNION OF INDIA & ORS.                             955
                  [UDAY U. LAUT, J.]

of persons travelling on rooftop. Though the people who travelled on         A
rooftop also contributed to the mishap, the Railway Administration, in
our view, was not free from blame. Concluding so, we direct that the
next of kin of those who died in the incident and those who sustained
injuries ~ust be duly compensated by the Railway Administration. Those
who died were obvio1.1sly very young in age for they had come to compete
                                                                              8
for the jobs. Taking all these factors in consideration we direct Railway
Administration to pay:
      (a) Compensation ofRs.5 lakhs to the next of kin in case of every
      death;
      (b) Compensation of Rs.1.5 lakhs in every case of permanent             c
      disability suffered by anyone in the incident;
      (c) Compensation ofRs.75,000/- in case of any grievous injury
      suffered by anyone; and
      (d) Compensation ofRs.25,000/- in case of simple injury suffered
      by anyone.                                                              D
       18. lt is distressing that despite Paragraph No.9.2 of the Report,
the Railway Administration has not considered collecting data in Divisions
other than Lucknow Division whether there are any infringements as
per Schedule of Dimensions stated in said Paragraph 9.2. The
Administration must take every care so that such tragedy is not repeated.     E
The first step in that behalf is to have an assessment if any such
infringements exist and then to create a road-map to remove such
infringements. We, therefore, direct the Railway Administration to
implement directions stated in Paragraph No.9.2 of the Report dated
09.09.2011. The Committee headed by a senior officer and assisted by
                                                                              F
at least three persons from the administration having technical knowledge
and expertise be constituted to have an assessment of all such
infringements and to chalk out an action plan to remove such
infringements. It is possible that in some cases road over bridges may
have been built by State Governments, Municipal Administrations or such
bodies. Nonetheless, the action plan must contemplate ways and means          G
to deal with and remove such infringements. We direct that the Committee
as aforesaid be constituted within a period of four weeks from the date
of this order. We hope and trust that the Committee shall take appropriate
steps in collecting data as stated above and creating road map or action
plan to remove such infringements, in the shortest possible time.
                                                                              H
956             SUPREME COURT REPORTS                            [20 l 6] 5 S.C.R.


A           19. As regards the infringements pointed in Lucknow Division,
      the aforesaid Committee shall take immediate steps. If the clearances
      are specified and stipulated in Schedule of Dimensions Rules, 2004 the
      Committee may do well to ensure strict compliance. Every dispensation
      sought, may be considered threadbare and be granted only as a last
      resort.
B
             20. We direct the Committee to complete the work as early as
      possible so that all infringements could be removed in shortest possible
      time and, in any case, not later than two years. We direct the Committee
      to file periodic status Reports every six months in this Court.
c            21 . We also direct that copies of th is Order be sent by the Registry
      to the Minister, Railways and Secretary, Railways who are requested to
      ensure compliance of the directions as aforesaid.
            22. Further, all Central Police Organisations must issue guidelines
      or Standing Order akin to Standing Orders Nos. I of2011 and 5 of2013
D     ofITBP ensuring that only 600 candidates or such number of candidates
      as could easily be managed or taken care of be called in one cycle on a
      particular day. For compliance in that behalf; a copy of this Order be
      sent by the Registry to the Secretary, Ministry of Home Affairs.
            23. With these directions, the petition stands disposed of.
 E    Kalpana K. Tripathy                                  Writ Petition disposed ot'.