1. Petitioner's claim for grant of compassionate appointment, consequent upon death of her husband, in harness, has been rejected, vide order dated 19th May, 2015, reiterated vide order dated 3rd August, 2015 (Annexures-13 and 15 to the writ petition), which are under challenge in the present writ petition.
2. Petitioner claims to have been married with Amit Kumar Goswami, who was employed with respondent Power Grid Corporation of India Ltd. Two children were born out of the wedlock, a son being 5 years' old and daughter, aged 2 years. Petitioner's husband was posted as Assistant (Finance) in the office of the respondent Corporation at Agra since 3.12.2007. It is claimed that on 19.3.2013, upon the direction of Senior Officers, the deceased employee left Agra for New Delhi, in connection with some official work, and while on duty, he fell sick. He was provided treatment at New Delhi, and upon return, was treated at Amit Jaggi Hospital, Agra. The employee concerned was then admitted to Apollo Hospital, New Delhi, where he received treatment upto 14.6.2013. While he was recovering from his sickness, he again fell seriously ill on 20.8.2013, and was taken to Apollo Hospital, New Delhi, where his condition deteriorated, and consequently, he died on 27.8.2013. Petitioner alleges that from 19th March, 2013, when petitioner's husband left for official tour in connection with performance of official duty, he would be treated to have remained on duty till he passed away on 27.8.2013. It is stated that from 19th March, 2013 till 27th August, 2013, petitioner's husband never reported for duty at his office on account of sickness. Petitioner claims that she is a young widow and has two minor children to take care of, and she requires compassionate appointment.
3. Petitioner's claim for grant of compassionate appointment appears to have been examined by the Corporation. Petitioner has been informed upon an information sought under the Right to Information Act, 2005 that her claim was considered, and since death of the employee had been caused due to illness, as such, in terms of the applicable policy, compassionate appointment cannot be granted. Subsequent representations made before various authorities have ultimately led to passing of the order dated 19th May, 2015, rejecting petitioner's claim. The order records that petitioner's husband was also offered compassionate appointment upon the death of his father late N.K. Goswami on the post of Assistant Grade-IV on 3.12.2007. It is then noticed that petitioner's husband died at Apollo Hospital on 27.8.2013 due to illness. It is stated in the order that under different heads, monetary benefits amounting to Rs.12,27,057/- has already been extended to the petitioner, and thereafter monthly pension of Rs.3,340/- as well as powergrid pension, widow and children pension, and EPS 95 scheme is also being provided. The amount of gratuity is awaiting succession certificate. In such circumstances, petitioner's claim for grant of compassionate appointment is not covered in terms of the applicable policy for grant of compassionate appointment, and consequently, petitioner's claim stands rejected. The subsequent order under challenge virtually reiterates the same averments.
4. The orders are challenged on the ground that petitioner's husband was hale and hearty till he left for New Delhi while on duty, and such illness continued till he died on 27.8.2013, and therefore, the deceased employee is liable to be treated on duty. According to petitioner, payment of terminal benefits cannot be a ground to deny benefit of compassionate appointment and for such proposition, a recent decision of the Apex Court in the case of Canera Bank and another Vs. M. Mahesh Kumar, (2015) 7 SCC 412 has been relied upon, wherein it is held that terminal benefits cannot be a substitute for providing compassionate appointment.
5. Learned counsel for the petitioner submits that expression occurring in the policy 'dies as a result of accident while on duty' has been considered by learned Single Judge of Jammu & Kashmir High Court in Rahul Dogra Vs. State and others, (2011) 2 JKJ 106, as affirmed by the same court in Letters Patent Appeal No.100 of 2011, decided on 6.3.2013, and the decision under challenge is in teeth thereof. Reliance has also been placed upon the judgment of this Court in Rajesh Kumar Vs. State of U.P., 2007 (3) UPLBEC 2855, judgments of the Apex Court in FCI Workers Union Vs. Food Corporation of India Ltd. 2001 (9) SCC 64, Balbir Kaur Vs. Steel Authority of India Ltd. 2000 (6) SCC 493, Sharda Devi Vs. District Magistrate/Collector 2003 (2) UPLBEC 1134, and State Bank of India Vs. Akeel Ahmed Khan 2005(11) SCC 508. Learned counsel has also relied upon a decision of the Apex Court in Sushma Gosain Vs. Union of India 1989 (4) SCC 468, and judgment of this Court in Ajay Kumar Shukla Vs. State of U.P., in Writ Petition No.9783 of 2002, dated 11th January, 2005. Substantiating his submissions, learned counsel contends that the order impugned is a non-reasoned order, and the consideration with regard to payment of retiral benefits was wholly irrelevant in determining petitioner's entitlement to grant of compassionate appointment. It is also contended that in similar circumstances, petitioner's father had also died while travelling but he was rightly offered compassionate appointment. According to learned counsel, "while on duty" cannot be read narrowly so as to restrict death of the employee in the office alone. The policy of the Corporation to restrict compassionate appointment only to the dependent of an employee, while on duty, is otherwise challenge and being arbitrary.
6. Learned counsel appearing for the Union of India has relied upon a decision of the Apex Court in Steel Authority of India Ltd. Vs. Madhusudan Das and others (2008) 15 SCC 560 for disputing submissions advanced on behalf of petitioner.
7. Sri J. Nagar, learned counsel appearing for the Powergrid Corporation of India has relied upon the judgments of the Apex Court in Mackinnon Machenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak 1969 (2) SCC 607, Regional Director, E.S.I. Corporation and another Vs. Frances De Costa and another 1996 (6) SCC 1, Jyothi Ademma Vs. Plant Engineer, Nellore and another (2006) 5 SCC 513, Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and another (2007) 11 SCC 668, Steel Authority of India Ltd. Vs. Madhusudan Das and others (2008) 15 SCC 560, General Manager, State Bank of India and others Vs. Anju Jai (2008) 8 SCC 475, Umesh Kumar Nagpal Vs. State of Haryana and others (1994) 4 SCC 138, General Manager (D&PB) and others Vs. Kunti Tiwary and another (2004) 7 SCC 271, Punjab National Bank and others Vs. Ashwini Kumar Taneja (2004) 7 SCC 265, State Bank of India and another Vs. Somvir Singh (2007) 4 SCC 778, State of Gujarat and others Vs. Arvind Kumar T. Tiwari and another (2012) 9 SCC 545, and Rajasthan State Road Transport Corporation and others Vs. Revat Singh (2015) 11 SCC 802.
8. It is not in dispute that a bipartite settlement has been arrived at between the employees and the Powergrid Corporation on 21st August, 1995, which contains Clause 5.4 providing for grant of compassionate appointment. Clause 5.4 is reproduced:-
"5.4 Employment to one dependent of each workman who is permanently disabled or dies as a result of accident while on duty, will continue to be provided as at present. Dependent for this purpose will mean spouse of the employee, his/her son or daughter or legally adopted son/daughter."
9. Law is settled that grant of compassionate appointment is in the nature of a concession and not a vested right. Compassionate appointment can be made only in accordance with the scheme framed for the purpose. After considering the law on the issue, Apex Court in the judgment in Steel Authority of India Ltd. (supra) has held as under in paragraph-15:-
"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 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] "
10. Similar view has been expressed in recent decision of the Apex Court in Canera Bank (supra). The scheme which is applicable in the facts of the present case is Clause 5.4 of the bipartite settlement. It states that compassionate appointment is to be granted to one dependent of each workman, who dies as a result of accident while on duty, and that dependent for the purpose can be spouse of the employee; his/her son or daughter or legally adopted son of the employee. In the present case, though it is stated that petitioner had gone at official tour on 19th March, 2013 to Delhi, where he fell sick, but no details of illness/sickness has been brought on record. It is admitted in para 9 of the writ petition that the deceased employee came back from Delhi to Agra, where he was treated at Amit Jaggi Hospital, and was thereafter taken to Delhi again after his condition deteriorated. A period of more than five months has expired between the alleged illness and death of the petitioner. It is asserted that the deceased employee became ill while on duty, and as he never joined till his death, as such, the entire period of five months is liable to be treated as a period spent on leave. In order to demonstrate such facts, staff attendance register of the month of March, 2013 has been brought on record. A perusal of it goes to show that petitioner was on paternity leave from 1st March, 2013 to 6th March, 2013. He resumed his duties from 7th March, 2013. Thereafter, the deceased employee is shown to be on tour on 19th March, 2013, and thereafter, he is shown to be on leave.
11. The issue as to what is required to be proved for the death to have occurred in an accident, has been considered in Steel Authority of India Ltd. (supra), relying upon the observations made in Mackinnon Machenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak 1969 (2) SCC 607. Para 17 of the judgment is reproduced in Steel Authority of India Ltd. (supra):-
"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 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:
"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."
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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 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 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"."
12. Though the words used herein are different but the principle laid down would be relevant for the present purposes. For the death to have been caused while on duty, a causal relationship between death and employment would, therefore, have to be demonstrated. In the facts of the present case, the deceased employee is stated to have become sick while on tour to Delhi on 19th March, 2013. He admittedly returned to Agra, although he never resumed his duties. No evidence or material is available on record to even remotely connect death of the deceased employee with his sickness caused while on tour. It has not been shown that death was caused on duty as a result of accident. Even if, it is accepted that he became ill while on tour, it would not amount to an accident much less an accident on duty, unless it could be shown so. It is not proved that death caused was connected with any sickness acquired while on tour. Moreover, no averment with regard to any accident has been made in the writ petition, nor has it been substantiated. Much reliance has been placed by the petitioner upon the judgment in Rahul Dogra (supra). Interpreting same clause 5.4, the learned Single Judge has observed as under in paragraph 5 to 8 of the judgment:-
"5. Briefly stated, the Petitioner's case is that his father died "as a result of accident while on duty" and that the Respondents to decline the Petitioner's claim had given an erroneous interpretation to the expression "as a result of accident while on duty". The Petitioner also alleges discrimination inasmuch as in some other cases, the dependents of the employees of the Corporation who died in accident were appointed on compassionate grounds. The Petitioner has given details of the cases where dependents were appointed on compassionate grounds due to death/permanent disablement of an employee of the Corporation. The financial hardships to which the Petitioner's family has been pushed to, due to sad and untimely death of Petitioner's father is also detailed in the writ petition.
6. The Respondents in their reply while admitting that as per Clause 0.5.4 of the Agreement, employment to one dependent of an employee/workman who is permanently disabled or dies "as a result of accident while on duty" is to be considered insist that no such benefit was extendable to the Petitioner as death of Sh. Bodh Raj, father of the Petitioner, did not occur "as a result of accident while on duty". The Respondents controvert the averments made in the petition as regards hardship and pitiable conditions of the family and have come up with details of the terminal benefits amounting to more than Rs. 14/- lac paid to the Petitioner's family and a monthly pension of Rs. 3421/- sanctioned in their favour.
I have gone through the pleadings and have heard learned Counsel for parties.
7. The provision for appointment to the dependent of disabled or deceased employee in the event of disablement or death "as a result of accident while on duty" is a remedial or welfare provision and does not admit of any hyper technical interpretation. The provision is to be construed with reference to its context and with due regard to the object sought to be achieved. While interpreting a provision like one under discussion, an interpretation that would produce unjust or inconvenient result is to be avoided and an interpretation that advances the object of the provision is to be resorted to. In such cases, the authorities saddled with decision making duty are expected to place a liberal and purposive construction on the provision. The words and phrases are to be construed having regard to the subject and the occasion and the object of the rule/norm. The exact meaning of a word or a phrase in a rule/norm is not to be ascertained by reading such words and phrases in isolation but in overall context of the norm/rule. The Supreme Court in Sant Ram v. Rajinder Lal and others, observed that a welfare legislation must be interpreted in a Third World perspective favouring the weaker and poor class. What is true about legislation is equally true about a clause in an agreement intended to provide relief and succour to the bereaved family of a deceased employee confronted with sudden demise of its only bread earner. In the context of Para 0.5.4 of the Agreement relied upon by the Respondents to deny benefit of appointment on compassionate grounds to the Petitioner, the Respondents were required to have regard to "teleological" purpose and "protective intendment" of the provision. The Respondents, on the other hand, have taken a technical view of the provision and denied benefit to the Petitioner available to him under Clause 0.5.4 of the Agreement, it has entered into with its employees. The Respondents did not realize that interpretation they placed on the provision did not go hand in hand with the purpose and object of the provision. It would be a highly technical view to hold that "as a result of accident while on duty" would not include an accident when an employee proceeds to his official residence, provided by the employer, during the lunch break, to have his lunch. An employee would not cease to be on duty when he goes to a wash room to ease himself or cafeteria/canteen at the work place to have some refreshment or to his residence to have his lunch. In case, the interpretation placed on expression "as a result of accident while on duty" is accepted, then in all such cases i.e. where an employee goes to a wash room or cafeteria/canteen at the work place shall be excluded from the benefit otherwise available under Para 0.5.4 of the Agreement.
8. The case set up by the Respondents that the Petitioner's family has been given terminal benefits after the tragic death of Petitioner's father is of no avail and does not help the Respondents to wash their hands of their responsibilities under Para 0.5.4 of the Agreement. The Respondents at their own choice have made the aforesaid Para independent of the payment of terminal benefits to the family of the diseased employee and the benefit under Para 0.5.4 is in no way contingent upon payment of terminal benefits to the dependents of a permanently disabled/deceased employee.
So viewed, the Respondents have wrongly denied the benefit of appointment on compassionate grounds to the Petitioner by placing hyper technical and unwarranted interpretation on Para 0.5.4 of the Agreement.
Resultantly, the writ petition succeeds and is hereby allowed. The Respondents are directed to accord consideration afresh to appointment of the Petitioner on compassionate grounds in terms of Para 0.5.4, of course, in accordance with rules and regulations.
Disposed of along with connected CM Ps, if any."
13. This view has been affirmed by the Division Bench of the Jammu & Kashmir High Court. The term 'on duty' has been given a liberal interpretation by the learned Single Judge, so as to include any accident caused to the employee, while he goes to his official residence during lunch break to have his lunch, or if he goes to washroom to have refreshment etc. In the case of Rahul Dogra (supra), the employee concerned had left for his official residence to have lunch, and on reaching his residence, developed severe chest pain, whereafter he died. The facts in the case of Rahul Dogra are quite distinct, and therefore, the ratio laid down does not appear to have any applicability upon the facts of the present case. In the present case, death of the deceased employee has taken place after a period of five months of his having gone for official duty. The factum of death has not been shown to have been connected with discharge of official duty, or that it has anything to do with employment of the deceased employee. Petitioner does not appear to have adduced any material before the respondent Corporation to demonstrate that her husband had died in an accident while on duty. This Court is not inclined to accept the submissions advanced at the bar that sickness acquired during the tour would continue to exist for a period of more than five months. There is no causal relationship pleaded or proved between the death of workman and his employment. The view taken by the authorities, therefore, holding that claim of petitioner is not covered under the scheme for grant of compassionate appointment does not suffer from any infirmity in the eyes of law. This Court, in the facts of the present case, can only express sympathies for the petitioner, but no compassionate appointment can be directed.
14. So far as the judgment of this Court in Rajesh Kumar (supra) is concerned, the same has no applicability as the words occurring in the present policy were not required to be interpreted. Similarly, the judgment in FCI Workers Union (supra) related to extension of benefit to those, who were entitled in law, to be reinstated, but had been denied such benefit. In Balbir Kaur (supra), it was held that other benefits granted under the Scheme cannot be a substitute for grant of compassionate appointment, and to similar effect is the law laid down in Canera Bank (supra). However, petitioner's case for grant of compassionate appointment is not correct under the Scheme of the Corporation, and as such, no benefit could be extended on the basis of these authorities. Other judgments relied upon by the petitioner does not entitle her to grant of compassionate appointment either. The contention that reasons have not been assigned, or that no application of mind is reflected in the order, is also not liable to be considered, since sufficient reasons have been put forth in the order to hold that petitioner's claim is not covered in the Scheme.
15. The writ petition, consequently, fails, and is dismissed. There shall, however, be no order as to costs.
Order Date :- 3.5.2016 Anil