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TMI Blog2008 (10) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 neitherm refuted in counter affidavit of the respondents nor it was refuted at the time of argument nor post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 therefore was maintainable. It is in that sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 therefore have not been satisfied. This aspect of the matter has been considered by this Court in Umesh Kumar Nagpal v. State of Haryana and Ors. [1994]3SCR893 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 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 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 meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. AIR2007SC248, (wherein one of us was a member), stating: 20. This Court in ESI Corpn. referred to, with approval, the decision of Lord Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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