Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6159 OF 2008
[Arising out of SLP (Civil) No. 4725 of 2007]
Steel Authority of India Ltd. …Appellant
Versus
Madhusudan Das & Ors. …Respondents
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Interpretation of terms of a tripartite settlement providing for
appointment on compassionate ground is in question in this appeal which
arises out of a judgment and order dated 20.09.2006 passed by a Division
Bench of the High Court of Jharkhand at Ranchi in LPA No. 373 of 2006
allowing an appeal preferred by respondent No. 1 from the judgment and
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order dated 4.07.2006 passed by a learned Single Judge of the said High
Court in W.P. (S) No. 507 of 2002.
3. Bhagirathi Das (deceased) was an employee of Gua Ores Mines, Gua,
District – Singhbhum West belonging to appellant. On 10.02.1996, he was
on C-3 Shift duty. He was asked to continue in the morning duty on
11.02.1996. While working, he suddenly collapsed and declared dead at the
spot. He left behind his two wives, two married daughters, one unmarried
daughter and three sons. Respondent No. 1 herein is son through his second
wife, Mulgi Devi and one Goverdan Dass is the son through his first wife
Savitri Devi.
4. A representation was made by respondent No. 1 for his appointment
on compassionate ground. The same was rejected. He filed a writ petition
marked as Writ Petition (S) No. 507 of 2002 praying inter alia for the
following relief:
“It is, therefore, humbly prayed that your lordships
may graciously be pleased to issue Rule NISI
calling upon the Respondents to show cause as to
why the petitioner be not appointed on
compassionate ground and on return of the rule
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and after hearing the parties further be pleased to
make the rule absolute against the Respondents.”
5. A learned Single Judge of the Jharkhand High Court dismissed the
said writ petition on the ground that it involved disputed questions of fact.
Aggrieved by and dissatisfied therewith, a Letters Patent Appeal was
preferred by him which has been allowed by reason of the impugned
judgment.
6. Mr. Ranjit Kumar, learned Senior Counsel appearing on behalf of
appellant, would submit that the Division Bench of the High Court
committed a serious error in passing the impugned judgment insofar as it
failed to take into consideration that appointment on compassionate ground
was to be made strictly only in terms of Para 8.9.4 of the settlement
providing that the death of the bread earner should have occurred ‘due to an
accident arising out of and in course of employment’, as in this case, the
employee had not died due to an accident.
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7. Indisputably, the provision for appointment on compassionate ground
is provided in Para 8.9.4 of the Memorandum of Settlement of Wages and
Benefits, 1989, which is in the following terms:
“8.9.4 In case of death due to accident
arising out of and in course of employment,
employment to one of his/ her direct dependants
will be provided.”
8. The post mortem report of the deceased did not suggest that he died
out of the ordinary sense of the term ‘accident’. The viscera report reads as
under:
“No metallic, alkaloidal, glycosidal, pesticidal or
volative poison could be detected in the dark-
brown fluid described above.”
9. Indisputably, the settlement was arrived at by and between the
Management and the Workmen on 8.08.1995 in terms of Section 12(3) of
the Industrial Disputes Act, 1947, para 9.2(f) whereof reads as under:
“9.2 The employees covered by this settlement
shall continue to be entitled to the benefits
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admissible under the Workmen’s Compensation
Act, 1923 and the previous settlement as below:
(f) In case of death or permanent total
disablement due to accident arising out of and in
course of employment, employment to one of his/
her direct dependants will be provided.”
10. The core question, which arises for our consideration, is as to whether
Bhagirathi Das died in an accident arising out of and in course of
employment.
11. For the aforementioned purpose, we may notice the following extracts
from the writ petition and the Letters Patent Appeal filed by respondent No.
1 respectively:
Writ petition
“5. That admittedly Bhagirathi Das father of the
petitioner was shift Incharge in Water Treatment
Department and subsequently he became Foreman
in the said Department. As per schedule he joined
in C-3 Shift duty on 10.2.1996. After completion
of the aforesaid C-3 Shift he was ordered to
continue the morning duty i.e. ‘A’ shift on
11.2.1996 and as such he continued his ‘A’ Shift
duty but at about 8.30 A.M. he suddenly fell down
on the ground. Consequently thereto he was
declared dead at the spot during the working hours
in course of employment. He died in harness
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leaving behind his widow, two sons including
petitioner and one major unmarried daughter.
13. That from the perusal of Annexure – 5 it
transpires that the Respondents have not denied
about the death of Bhagirathi Das, father of the
petitioner in course of employment though the
death was alleged natural. It also transpires that
the Respondents have not stated about the
payment of the amount of Group Insurance to the
Petitioner or his mother.”
Letters Patent Appeal
“32…It was never submitted that the death of
employee took place due to accident while
working in the mines rather submission was that
the appellant’s father was ordered to continue the
morning duty i.e. “A” shift on 11.2.1996 and as
such he continued his “A” shift duty which was
neither refuted in counter affidavit of the
respondents nor it was refuted at the time of
argument nor postmortem report was produced at
the time of argument by the respondents counsel
nor any chemical analysis report was produced,
but the Hon’ble Single Judge has erred in
recording submission which is contrary to the
pleading of the petitioner and respondents and as
such finding is erroneous.
35. That the Hon’ble Single Judge failed to
consider the simple fact that whether the
appellant’s /petitioner’s father died in course of
discharging duty in the mines even if normal death
the dependent of the deceased employee should be
provided employment by the respondents.”
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[Emphasis supplied]
12. The averments made in the writ petition, therefore, did not suggest
that any accident had taken place resulting in death of the said Bhagirathi
Das. It was also not suggested that he died as a result of stress of work. It
has also not been pointed out that he was employed in a hazardous job
which resulted in his death.
It is true that he was asked to work in continuous shift. We are
informed at the bar that the rule covering the subject is that it was upto the
employee concerned to accept the offer of the management or not to accept.
The management, thus, could not force him to continue to perform his
duties in the morning shift. It was, therefore, necessary for the respondent
No. 1 to plead in the writ petition that the death of Bhagirathi Das occurred
because of stress in the work or his work was otherwise hazardous in nature.
Even before the Division Bench, such a contention had not been
raised. The Division Bench, despite the same, however, in its impugned
judgment held:
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“The learned Single Judge has not come to a
conclusion that the death was due to the accident,
while the deceased was working in mines.
In our view, there is no dispute of the fact that the
deceased died while he was working in the mines
and initially the department had sent a letter to the
doctor asking for cause of death. So, at that stage,
it was not known as to how he died. But the fact
remains that during the course of employment
when he was working in the mines he died.
Therefore, the petitioner/ appellant, who is the
elder son of the deceased, in our view, is entitled
for the compassionate appointment. The
impugned order dated 4.7.2006 passed in W.P. (S)
No. 507 of 2002 is set aside and the appeal is
accordingly, allowed.”
13. It was, thus, not held that the death occurred due to an accident. It
was not even the case of respondent. What would constitute ‘an accident
arising out of and in the course of employment’ has not been defined.
Evidently, the said phraseology has been borrowed from the provisions of
the Workmen’s Compensation Act. We would, however, advert to the said
question a little later.
14. Appellant being a State within the meaning of Article 12 of the
Constitution of India, while making recruitments, it is bound to follow the
rules framed by it. Appointment of a dependant of a deceased employee on
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compassionate ground is a matter involving policy decision. It may be a
part of the service rules. In this case it would be a part of the settlement
having the force of law. A Memorandum of Settlement entered into by and
between the Management and the employees having regard to the provisions
contained in Section 12(3) of the Industrial Disputes Act is binding both on
the employer and the employee. In the event, any party thereto commits a
breach of any of the provisions thereof, ordinarily, an industrial dispute is to
be raised. We would, however, assume that a writ petition therefor was
maintainable. It is in that sense of the term, the learned Single Judge opined
that the question as to whether there has been a breach of the Memorandum
of Settlement on the part of the employer or not involves a disputed
question of fact. The Division Bench of the High Court, however,
proceeded on the premise that the employer was bound to provide
appointment on compassionate appointment in all cases involving death of
an employee. The Division Bench, in our opinion, was not correct in its
view. This Court in a large number of decisions has held that the
appointment on compassionate ground cannot be claimed as a matter of
right. It must be provided for in the rules. The criteria laid down therefor,
viz., that the death of the sole bread earner of the family, must be
established. It is meant to provide for a minimum relief. When such
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contentions are raised, the constitutional philosophy of equality behind
making such a scheme be taken into consideration. Articles 14 and 16 of
the Constitution of India mandate that all eligible candidates should be
considered for appointment in the posts which have fallen vacant.
Appointment on compassionate ground offered to a dependant of a deceased
employee is an exception to the said rule. It is a concession, not a right.
[See General Manager, State Bank of India and Others v. Anju Jain (2008) 8
SCC 475, para 33]
15. Mr. Braj K. Mishra, learned counsel appearing on behalf of the
respondent No. 1, however, placed strong reliance on a decision of this
Court in Balbir Kaur and Another v. Steel Authority of India Ltd. and
Others [(2000) 6 SCC 493], wherein it was opined:
“19. Mr Bhasme further contended that family
members of a large number of the employees have
already availed of the Family Benefit Scheme and
as such it would be taken to be otherwise more
beneficial to the employee concerned. We are not
called upon to assess the situation but the fact
remains that having due regard to the
constitutional philosophy to decry a
compassionate employment opportunity would
neither be fair nor reasonable. The concept of
social justice is the yardstick to the justice
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administration system or the legal justice and as
Roscoe Pound pointed out the greatest virtue of
law is in its adaptability and flexibility and thus it
would be otherwise an obligation for the law
courts also to apply the law depending upon the
situation since the law is made for the society and
whatever is beneficial for the society, the
endeavour of the law court would be to administer
justice having due regard in that direction.”
16. It may be that such a provision was made as a measure of social
benefit but it does not lay down a legal principle that the court shall pass an
order to that effect despite the fact that the conditions precedent therefor
have not been satisfied.
This aspect of the matter has been considered by this Court in Umesh
Kumar Nagpal v. State of Haryana and Others [(1994) 4 SCC 138] in the
following terms:
“As a rule, appointments in the public services
should be made strictly on the basis of open
invitation of applications and merit. No other
mode of appointment nor any other consideration
is permissible. Neither the Governments nor the
public authorities are at liberty to follow any other
procedure or relax the qualifications laid down by
the rules for the post. However, to this general rule
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which is to be followed strictly in every case, there
are some exceptions carved out in the interests of
justice and to meet certain contingencies. One
such exception is in favour of the dependants of an
employee dying in harness and leaving his family
in penury and without any means of livelihood. In
such cases, out of pure humanitarian consideration
taking into consideration the fact that unless some
source of livelihood is provided, the family would
not be able to make both ends meet, a provision is
made in the rules to provide gainful employment
to one of the dependants of the deceased who may
be eligible for such employment. The whole object
of granting compassionate employment is thus to
enable the family to tide over the sudden crisis.
The object is not to give a member of such family
a post much less a post for post held by the
deceased.”
Yet again in General Manager (D&PB) v. Kunti Tiwary and Another
[(2004) 7 SCC 271], this Court noticed:
“6. The policy in question was framed by the
appellant Bank pursuant to the decision of this
Court in Umesh Kumar Nagpal v. State of
Haryana 1 where this Court has said that
appointment by way of compassionate
appointment is an exception carved out of the
general rule for appointment on the basis of open
invitation of application and merit. This exception
was to be resorted to in cases of penury where the
dependants of an employee are left without any
means of livelihood and that unless some source
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of livelihood was provided a family would not be
able to make both ends meet.”
[See also Punjab National Bank and Others v. Ashwini Kumar Taneja
(2004) 7 SCC 265]
In Mohan Mahto v. Central Coal Field Ltd. [(2007) 8 SCC 549], this
Court observed:
“14. In I.G. (Karmik) v. Prahalad Mani Tripathi
this Court observed: (SCC p. 165, paras 6-8)
“6. An employee of a State enjoys a status.
Recruitment of employees of the State is governed
by the rules framed under a statute or the proviso
appended to Article 309 of the Constitution of
India. In the matter of appointment, the State is
obligated to give effect to the constitutional
scheme of equality as adumbrated under Articles
14 and 16 of the Constitution of India. All
appointments, therefore, must conform to the said
constitutional scheme. This Court, however, while
laying emphasis on the said proposition carved out
an exception in favour of the children or other
relatives of the officer who dies or who becomes
incapacitated while rendering services in the
Police Department. See Yogender Pal Singh v.
Union of India4.
7. Public employment is considered to be a
wealth. It in terms of the constitutional scheme
cannot be given on descent. When such an
exception has been carved out by this Court, the
same must be strictly complied with. Appointment
on compassionate ground is given only for
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meeting the immediate hardship which is faced by
the family by reason of the death of the
breadearner. When an appointment is made on
compassionate ground, it should be kept confined
only to the purpose it seeks to achieve, the idea
being not to provide for endless compassion.
8. In National Institute of Technology v. Niraj
Kumar Singh this Court has stated the law in the
following terms: (SCC p. 487, para 16)
‘16. All public appointments must be in
consonance with Article 16 of the Constitution of
India. Exceptions carved out therefore are the
cases where appointments are to be given to the
widow or the dependent children of the employee
who died in harness. Such an exception is carved
out with a view to see that the family of the
deceased employee who has died in harness does
not become a destitute. No appointment, therefore,
on compassionate ground can be granted to a
person other than those for whose benefit the
exception has been carved out. Other family
members of the deceased employee would not
derive any benefit thereunder.’ ”
15. In State Bank of India v. Somvir Singh this
Court held: (SCC p. 783, para 10)
“10. There is no dispute whatsoever that the
appellant Bank is required to consider the request
for compassionate appointment only in accordance
with the scheme framed by it and no discretion as
such is left with any of the authorities to make
compassionate appointment dehors the scheme. In
our considered opinion the claim for
compassionate appointment and the right, if any, is
traceable only to the scheme, executive
instructions, rules, etc. framed by the employer in
the matter of providing employment on
compassionate grounds. There is no right of
whatsoever nature to claim compassionate
appointment on any ground other than the one, if
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any, conferred by the employer by way of scheme
or instructions as the case may be.”
17. Reverting back to the question as to whether in a case of this nature,
it was required to be pleaded and proved that the death occurred in an
accident, we must advert to the meaning of the term accident.
This Court in Mackinnon Mackenzie and Co. (P) Ltd. v. Ibrahim
Mahmmed Issak [(1969) 2 SCC 607], held:
“5. To come within the Act the injury by
accident must arise both out of and in the course
of employment. The words “in the course of the
employment” mean “in the course of the work
which the workman is employed to do and which
is incidental to it.” The words “arising out of
employment” are understood to mean that “during
the course of the employment, injury has resulted
from some risk incidental to the duties of the
service, which, unless engaged in the duty owing
to the master, it is reasonable to believe the
workman would not otherwise have suffered.” In
other words there must be a causal relationship
between the accident and the employment. The
expression “arising out of employment” is again
not confined to the mere nature of the
employment. The expression applies to
employment as such — to its nature, its
conditions, its obligations and its incidents. If by
reason of any of those factors the workman is
brought within the zone of special danger the
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injury would be one which arises ‘out of
employment’. To put it differently if the accident
had occurred on account of a risk which is an
incident of the employment, the claim for
compensation must succeed, unless of course the
workman has exposed himself to an added peril by
his own imprudent act…”
It was furthermore held:
“6. In the case of death caused by accident the
burden of proof rests upon the workman to prove
that the accident arose out of employment as well
as in the course of employment. But this does not
mean that a workman who comes to Court for
relief must necessarily prove it by direct evidence.
Although the onus of proving that the injury by
accident arose both out of and in the course of
employment rests upon the applicant these
essentials may be inferred when the facts proved
justify the inference. On the one hand the
Commissioner must not surmise, conjecture or
guess; on the other hand, he may draw an
inference from the proved facts so long as it is a
legitimate inference. It is of course impossible to
lay down any rule as to the degree of proof which
is sufficient to justify an inference being drawn,
but the evidence must be such as would induce a
reasonable man to draw it.”
The said principle was followed by this Court in Shakuntala
Ghandrakant Shreshti v. Prabhakar Maruti Garvali and Another [(2007) 4
SCC 668], (wherein one of us was a member), stating:
17
“20. This Court in ESI Corpn. referred to, with
approval, the decision of Lord Wright in Dover
Navigation Co. Ltd. v. Isabella Craig wherein it
was held: (All ER p. 563 G-H)
“Nothing could be simpler than the words
‘arising out of and in the course of the
employment’. It is clear that there are two
conditions to be fulfilled. What arises ‘in the
course’ of the employment is to be distinguished
from what arises ‘out of the employment’. The
former words relate to time conditioned by
reference to the man’s service, the latter to
causality. Not every accident which occurs to a
man during the time when he is on his
employment—that is, directly or indirectly
engaged on what he is employed to do—gives a
claim to compensation, unless it also arises out of
the employment. Hence the section imports a
distinction which it does not define. The language
is simple and unqualified.”
*
22. There are a large number of English and
American decisions, some of which have been
taken note of in ESI Corpn. in regard to essential
ingredients for such finding and the tests attracting
the provisions of Section 3 of the Act. The
principles are:
(1) There must be a causal connection between
the injury and the accident and the accident and
the work done in the course of employment.
(2) The onus is upon the applicant to show that
it was the work and the resulting strain which
contributed to or aggravated the injury.
(3) If the evidence brought on records
establishes a greater probability which satisfies a
reasonable man that the work contributed to the
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causing of the personal injury, it would be enough
for the workman to succeed, but the same would
depend upon the fact of each case.”
Yet again, recently in Oriental Insurance Company Limited v.
Sorumai Gogoi and Others [(2008) 4 SCC 572], this Court observed:
“21. In Jyothi Ademma v. Plant Engineer also
this Court held: (SCC pp. 514-15, paras 6-7)
“6. Under Section 3(1) it has to be established
that there was some causal connection between the
death of the workman and his employment. If the
workman dies as a natural result of the disease
which he was suffering or while suffering from a
particular disease he dies of that disease as a result
of wear and tear of the employment, no liability
would be fixed upon the employer. But if the
employment is a contributory cause or has
accelerated the death, or if the death was due not
only to the disease but also the disease coupled
with the employment, then it can be said that the
death arose out of the employment and the
employer would be liable.
7. The expression ‘accident’ means an
untoward mishap which is not expected or
designed. ‘Injury’ means physiological injury. In
Fenton v. Thorley & Co. Ltd.3 it was observed
that the expression ‘accident’ is used in the
popular and ordinary sense of the word as
denoting an unlooked for mishap or an untoward
event which is not expected or designed. The
above view of Lord Macnaghten was qualified by
the speech of Lord Haldane, A.C. in Trim Joint
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District School Board of Management v. Kelly as
follows:
‘I think that the context shows that in using the
word “designed” Lord Macnaghten was referring
to designed by the sufferer.’ ”
22. Furthermore, the rights of the parties were
required to be determined as on the date of the
incident, namely, 9-10-1996. It is, therefore,
difficult to hold that a subsequent event and that
too by raising a presumption in terms of Section
108 of the Evidence Act can give rise to
fructification of claim, save and except in very
exceptional cases.”
18. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly.
19. The appeal is allowed. However, in the facts and circumstances of
the case, there shall be no order as to costs.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Cyriac Joseph]
New Delhi;
October 20, 2008
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