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Covid-19 deaths due to election duty: Allahabad HC directs UP govt to pay dependents Rs 30 lakh each, imposes cost

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The Allahabad High Court has ordered the Uttar Pradesh Government to release the ex-gratia payment to dependents of individuals who died due to Covid in and around their election duty during the second Covid-19 wave.

The Division Bench of Justice Attau Rahman Masoodi and Justice Vikram D. Chauhan passed this order while hearing a petition filed by Kusum Lata Yadav.

The petitioners have questioned the legality of Clause 12 of the Government Order dated June 1, 2021, which was issued in modification of the earlier Government Orders dated April 6, 2021 and May 4, 2021. By means of the impugned government order, the State of Uttar Pradesh raised the amount of ex-gratia payment to dependents of a deceased employee dying on election duty due to Covid-19 from Rs 15 lakh to Rs 30 lakh subject to the fulfillment of conditions in Clause-12.

In usual course, the National Disaster Management Authority by virtue of Section 12 of the Disaster Management Act, 2005 is empowered to recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster.

The Court observed,

It is evident from the above quoted provision that ex-gratia assistance on account of loss of life is one of the measures for restoration of the means of livelihood to the members of an aggrieved family. The State Government is also empowered under Section 38 of the Act of 2005 to take measures defined under Section 38 (2) which include the financial help in the nature of ex-gratia payment under Section 38 (2)(l) and this is how the aforesaid government orders have come to be issued for compensating the loss of lives to the dependents of those who were deputed for election duties during the UP Panchayat Elections 2021, contracted Covid-19 and died.

A person having contracted Covid-19 while on election duty became a matter of consideration in the light of recommendations made by the Election Commission of India as well as the National Authority. Therefore, to avoid litigation as against the claims which may have arisen on account of the death of a person discharging election duty by his dependents, the ex-gratia payment to the tune of Rs 30 lakh was a measure evolved by the State Government to compensate the dependents of any such loss of life, whose death occurred on account of Covid-19 having been contracted while on election duty. The Election Commission of India for the purpose of ex-gratia payment is said to have defined election duty to mean the performance of such duty by leaving one’s house on a scheduled day till a person returned back home. The election duty included training, polling duty, counting duty or any other duty relating to election. It implies that contracting Covid-19 while on election duty after leaving one’s place of residence till reaching back home was the range of movement to which every case has to be corroborated.

The Court noted,

In the case, the UP Panchayat Election was notified in March 2021, thereafter the schedule of election duty in various capacities came to be issued on April 6, 2021.

Taking into account the fatal impact of Covid-19, it was for this reason that the State Government by a Government Order dated April 6, 2021 decided to compensate for the loss of life of any employee sent on election duty to the dependents with the payment of Rs 15 lakh which was enhanced to Rs 30 lakh.

The definition of election duty specified by the Election Commission of India adopted of the Government Order dated June 1, 2021 of which Clause 12 has been impugned herein remained para materia. The hardship in the matter of implementation of the ex-gratia payment to the dependents of pandemic victims was experienced on account of relating the Covid-19 deaths during election duty which fell for consideration before the State Government and the matter was considered in the background of published opinions in Lancet journal which were relied upon by the State Advisory Board of Covid-19/Director, SGPGI, Lucknow.

The Government Order issued by the State of UP on June 1, 2021 dispelled many confusions as regards contracting Covid-19 and broader principles were adopted to ameliorate the implementation of the compensatory scheme evolved by the State.

For any death on account of Covid-19, it is essential for a claimant to establish that the deceased had attended the election duty prior to his death which he contracted while on election duty.

The difficulty certainly arises in the determination of the fact of contracting Covid infection but where it is definite that a person prior to diagnosis or death had performed election duty, it is to be assumed that Covid -19 was contracted while on election duty unless proved otherwise.

The State Government in order to mitigate the technical hardship considered the entire issue with the assistance of experts and it was found that a Covid-19 patient from the date of disease onset had mortality expectancy within 28 days. There is however, no scientifically proven assessment of time, after the disease onset, within which a person may be diagnosed as Covid positive during the range of mortality expectancy period as derived from experimentation or data.

The Court further noted,

In these circumstances, the State Government in order to have a broader application of the policy decision proceeded to lay down the parameters for entitlement of ex-gratia payment.

The impugned Government Order lays down three parameters. Firstly, Covid-19 deaths which occur within 30 days of the election duty would entitle a claim. Secondly, the test reports Antigen/RT PCR positive, blood report or CT Scan would be a sufficient proof to prove the death having occurred on account of Covid-19 and thirdly, an asymptomatic case meeting with the death on account of Covid-19 within 30 days of election duty was also covered under the scheme.

In this background, three types of cases have emerged before the Court. In first category, the asymptomatic deaths having occurred within 30 days from the date of election duty on account of Covid-19 and in the second category, where symptoms were detected within a gap of 30 days from the date of election duty but the actual death occurred beyond 30 days from the date of election duty and, thirdly, where symptoms were detected beyond 30 days of election duty and death occurred within 30 days of detection of symptoms or later.

The case put forth by the State in response to the above situations is two fold. It is urged that the first category cases are not entitled to the ex-gratia payment as there is no proof of a deceased having contracting Covid-19 while on election duty and to deny the claim of second and third category, it is submitted that any death that has occurred beyond a period of 30 days from the date of election duty is not relatable to the election duty, hence the claim is liable to rejection.

Counsel for the State has also laid emphasis on the point that the controversy involves a policy decision of the State based on the opinion of experts, therefore, the Court has no option of reading down the scope of Government Order other than the manner in which it is supported by its scientific understanding.

The submission put forth is to the effect that any irrational or layman’s understanding of the Government Order would bring in a heterogeneous classification or class within the class which shall offend the mandate of Article 14 of the Constitution of India.

The Court said,

It is a well known fact that Covid-19 was witnessed no less than a largest precedent catastrophe leading to mortality of human lives on a very high scale. The scientific establishment was almost bent on its knees to acknowledge helplessness, yet, somehow the preventive measures sensitised by the State coupled with medical aid overcame the threat to human life for restoration of normalcy. It is not to forget that the behavioural obedience i.e. use of mask and following guidelines on free movement was as significant as the medicinal values and much was attributed to the superstitions as well. In the general perception of the people, the asymptomatic and symptomatic cases of Covid-19 were marginally distinct and in both the type of cases, the common cause was Covid infection.

It is not the case before us that the deaths have not occurred because of Covid-19 but what is disputed is that the deaths having taken place beyond 30 days from the date of election duty would not entitle the dependents for the ex-gratia payment. This defence is based on Clause-12 of the Government Order dated June 1, 2021 impugned herein this bunch of writ petitions.

In the background stated above, the question that crops up for consideration is as to whether a Covid-19 death for the purposes of ex-gratia payment is rightly regulated and understood by the executive as per Clause-12 of the Government Order, if not, whether the defence put forth is violative of the object of equality read with the purpose of Section 12(iii) of the Act of 2005.

The Court noted that life and its dignified protection is the first and foremost duty of the welfare state. During the course of disaster management, certain duties on the part of the State assume more significance.

Thus, the court opined that the field of compensation beyond the scope of Section 12 (iii) of the Disaster Management Act, 2003 is well protected as against negligence or things not done in good faith irrespective of any measure such as ex-gratia but in the case it is the claim of ex-gratia payment which we are concerned with.

The Court found that deaths having taken place in the hospitals on account of Covid-19 fully stand the test of certification. The argument that the medical reports mentioning cardiac failure or otherwise may not be attributed to Covid-19 does not impress the Court for the reason that Covid-19 is an infection that may result in the mortality of a person affecting any organ be it lungs or heart etc. Once the admission of deceased persons was on account of Covid-19, the resulting cause being heart failure or dysfunction of any other organ leading to death is immaterial and would nevertheless be treated as Covid-19 death.

No other argument was advanced for our consideration, therefore, having given our anxious consideration, we allow the claims in terms of our observations made hereinabove, the Court observed.

“As a result, all the writ petitions except Writ-C No. 3276 of 2022 (Smt. Khushboo v. State of U.P. and others) are allowed and the opposite parties are directed to release the ex-gratia payment to the dependents entitled thereto within a period of one month failing which the claims so allowed shall be made good inclusive of simple interest @ 9% p.m from the date of judgement upto the date of actual payment.

Each of the petitioners, whose claims are allowed shall be entitled to a cost of Rs 25000 in each case,” the Court ordered.

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