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

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:

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“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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