Holding

Compassionate appointment is a concession, not a right, and is applicable only when death is proved to be an accident arising out of and in the course of employment, which was not established in the present case.

Summary

The case concerned the death of Bhagirathi Das, a mine employee of Steel Authority of India Ltd., who collapsed while on duty. His son sought a compassionate appointment under Para 8.9.4 of the 1989 Memorandum of Settlement, which provides such appointment only if death is due to an accident arising out of and in the course of employment. The High Court Single Judge dismissed the petition, but the Division Bench allowed it, holding that the death occurred while the employee was at work. The Supreme Court examined whether the death qualified as an accident and whether a compassionate appointment is a statutory right. It held that the phrase ‘accident arising out of and in the course of employment’ must be proved, which was not done here, and that compassionate appointment is a concession, not a right, and can be granted only when the settlement criteria are satisfied. Consequently, the Division Bench order was set aside and the appeal was allowed.

Issues considered

Whether the death of the employee was an accident arising out of and in the course of employment as required by the settlement.
Whether a compassionate appointment under the settlement is a legal right or a concession subject to the employer's rules.
Whether the employer is bound to provide compassionate appointment in every case of employee death.

Legislation cited

Constitution of Indias. Article 12, s. Article 14, s. Article 16
Indian Evidence Act, 1872s. 108
Industrial Disputes Act, 1947s. 12(3)
Workmen's Compensation Act, 1923

Subjects

compassionate appointmentindustrial dispute settlementaccident in employmentservice lawpublic service recruitmentequality clausestatutory interpretation

Judgment

[2008] 14 S.C.R. 824

A STEEL AUTHORITY OF INDIA LTD. J<<
II.
MADHUSUDAN DAS & ORS.
(Civil Appeal No. 6159 of 2008)
OCTOBER 20, 2008
B
[S.8. SINHA AND CYRIAC JOSEPH, JJ.]
\•

?(_ -~
Service law - Appointment - Compassionate appoint-
ment- Claim of, by dependent son of employee dying in har-
c ness - Rejected by employer as a/so Single Judge of High
Court - However, allowed by Division Bench - Sustainability
of - Held: Appointment on compassionate ground is a con-
cession and not a right - As per the terms of Settlement, in
case of death due to accident arising out of and in course of
employment, compassionate appointment was to be provided
D
to one of his/her direct dependents - Division Bench of High
Court erred in holding that employer was bound to provide
compassionate appointment in all cases involving death of --+--·
employee - Parties had not pleaded or proved before the
courts below that death occurred due to an accident or was
E
result of stress in work or work was hazardous in nature - A/so
post mortem report did not suggest that death was due to an
accident - Thus, order of Division Bench of High Court not
sustainable and set aside - Memorandum of Settlement of
Wages and Benefits, 1989.
F
BD was working in the mines belonging to the ap-
pellant. He was on the shift duty and was asked to con-
tinue the morning duty. BO collapsed while working and
died. Respondent no 1-dependent son of BO sought ap-
G pointment on compassionate ground but the same was
rejected. He filed writ petition. The Single Judge of High
Court dismissed the writ petition. However, the Letters ~
Patent Appeal was allowed. Hence the present appeal.

H 824
The question which arose for consideration in this A
appeal was whether employee died in an accident aris-
ing out of and in course of employment.
Allowing the appeal, the Court
HELD: 1.1 The provisions for appointment on com- B
passionate ground is provided in Para 8.9.4 of the Memo-
randum of Settlement of Wages and Benefits, 1989 that in
case of death due to accident arising out of and in course
of employment, employment to one of his/her direct de-
pendents will be provided. [Para 7] [829-C-D] c
1.2 Appellant being a State within the meaning of Ar-
ticle 12 of the Constitution of India, while making recruit-
ments, it is bound to follow the rules framed by it. Appoint-
ment of a dependant of a deceased employee on com-
passionate ground is a matter involving policy decision. D
It may be a part of the service rules. In the instant case, it
would be a part of the settlement having the force of law.
A Memorandum of Settlement entered into by and be-
tween the Management and the employees having regard
to the provisions contained in Section 12(3) of the Indus- E
trial 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 in-
dustrial dispute is to be raised. [Para 14] [832-E-H]
1.3 The Division Bench of the High Court proceeded F
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 was
not correct in its view. The appointment on compassion-
ate ground cannot be claimed as a matter of right. It is a -G
· -~oncession. It must be provided for in the rules. The cri-
teria 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 be- H
826 SUPREME COURT REPORTS (2008] 14 S.C.R.

A hind making such a scheme be taken into consideration.
j(-
Articles 14 and 16 of the Constitution of India mandate
that all eligible candidates should be considered for ap-
pointment in the posts which have fallen vacant. Appoint-
ment on compassionate ground offered to a dependant
B of a deceased employee is an exception to the said rule.
It .may be that a provision for appointment on com pas-
sionate ground 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
.c conditions precedent therefor have not been satisfied.
[Paras 14 and 16] [833-A-D; 834-C]
General Manager, State Bank of India and Others v. Anju
Jain (2008) 8 sec .475 - relied on.
Balbir Kaur and Another v. Steel Authority of India Ltd.
D
and Others (2000) 6 SCC 493; Umesh Kumar Nagpal v. State
of Haryana and Others (1994) 4 SCC 138; General Manager
(D&PB) v. Kunti Tiwary and Another (2004) 7 SCC 271; Punjab
'--<r
National Bank and Others v. Ashwini Kumar Taneja (2004) 7
SCC 265; Mohan Mahto v. Central Coal Field Ltd. (2007) 8
E SCC 549; Mackinnon Mackenzie and Co. (P) Ltd. v. Ibrahim
· Mahmmed lssak (1969) 2 SCC 607; Shakuntala Ghandrakant
Shreshti v. Prabhakar Maruti Garvali and Another (2007) 4
SCC 668 and Oriental Insurance Company Limited v. Sorumai
Gogoi and Others (2008) 4 SCC.572 - referred to.
F
1.4 The post mortem report of the deceased did not
suggest that he died out of the ordinary sense of the term ·
'accident'. The averments made in the writ petition did not
suggest that any accident had taken place resulting in
death of the BD. It was also not suggested that he died as
G
a result of stress of work. It has also not been pointed out
that he was employed in a hazardous job which resulted . Ir
.
in his death. It is true that he was asked to work in con-
tinuous shift. The rule covering the subject is that it was
upto the employee concerned to accept the offer of the
H
STEEL AUT. OF INDIA LTD. v. MADHUSUDAN 827
DAS & ORS.
-~-
management or not to accept. Thus, the management A
could not force him to continue to perform his duties in
the morning shift. It was, therefore, necessary for the re-
spondent No. 1 to plead in the writ petition that the death
of BD occurred because of stress in the work or his work
was otherwise hazardous in nature. Even before the Di- B
vision Bench such contention was not raised. It was 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 employ-
ment' has not been defined. Evidently, the said phraseol- c
ogy has been borrowed from the provisions of the
Workmen's Compensation Act. Hence, in view of the rea-
sons stated, the impugned judgment cannot be sustained
and is set aside. [Paras 8, 12, 13 and 18] [829-E; 831-E-H;
832-D-E; 840-F]
D
CASE LAW REFERENCE
(2008) 8 sec 475 Relied on. Para 14
(2000) 6 sec 493 Referred to Para 15
(1994) 4 sec 138 Referred to Para 16 E
(2004) 1 sec 211 Referred to Para 16
(2004) 1 sec 265 Referred to Para 16
(2007) 8 sec 549 Referred to Para 16
(1969) 2 sec 607 Referred to Para 17
i F
c2001) 4 sec 668 Referred to Para 17
c2008) 4 sec 572 Referred to Para 17
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6159
of 2008

... )-
From the final Judgment and Order dated 20.9.2006 of
the High Court of Jharkhand at Ranchi in LpA No. 373 of 2006
G

Ranjit Kumar, Dhruv Mehta, Harshvardhan, Yashraj Singh
Deora and T.S. Sabanish (for Mis. K.L. Mehta & Co.) for the
Appellant. H
828 SUPREME COURT REPORTS [2008) 14 S.C.R.

--k- ,
A Braj K. Mishra, Aparna Jha, Abhishek Yadav, Tanushree "
Sinha and Vikram for the Respondents.
The Judgment of the Court was delivered by
5.8. SINHA, J : 1. Leave granted.
B 2 .. Interpretation of terms of a tripartite settlement provid-
ing for appointment on compassionate ground is in question in
this appeal which arises out of a judgment and order dated "*'· 1.::-
~
20.09.2006 passed by a Division Bench of the High Court of
Jharkhand at Ranchi in LPA No. 373 of 2006 allowing an ap-
c peal preferred by respondent No. 1 from the judgment and or-
der 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
D Ores Mines, Gua, District --- Singhbhum West belonging to ap-
pellant. 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
E his second wife, MulHi 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.
F He filed a writ petition marked as Writ Petition (S) No. 507 of
2002 praying inter alia for t_he following relief: -r-
"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
G 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." r

5. A learned Single Judge of the Jharkhand High Court
dismissed the said writ petition on the ground that it involved
H
STEEL AUT. OF INDIA LTD. v. MADHUSUDAN 829
DAS & ORS.
->t
disputed questions of fact. Aggrieved by and dissatisfied there- A
with, 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 im- B
-~ y: pugned 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·ln c
this case, the employee had not died due to an accident.
7. Indisputably, the provision for appointment on compas-
sionate ground is provided in Para 8.9.4 of the Memorandum.
of Settlement of Wages and Benefits, 1989, which is in the fol-
D
lowing 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."
E
8. The post mortem report of the deceased did not sug-
gest that he died out of the ordinary sense of the term 'acci-
dent'. The viscera report reads as under
"No metallic, alkaloidal, glycosidal, pesticidal or volative
poison could be detected in the dark-brown fluid described F
., above."
9. Indisputably, the settlement was arrived at by and be-
tween 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: G
1-
"9.2 The employees covered by this settlement shall
continue to be entitled to the benefits admissible under
the Workmen's Compensation Act, 1923 and the previous
settlement as below:
H
830 SUPREME COURT REPORTS (2008] 14 S.C.R.

A (f) In case of death or permanent total disablement due to
'k-
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,
e is as to whether Bhagirathi Das died in an accident arising out
of and in course of employment. x ...
11. For the aforementioned purpose, we may notice the
following extracts from the writ petition and the Letters Patent
c Appeal filed by respondent No. 1 respectively:
Writ petition
"5. That admittedly Bhagirathi Das father of the petitioner
was shift lncharge in Water Treatment Department and
D 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 8.30A.M. he suddenly fell down on the ground.
E
.. 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.

F 13. That from the perusal of Annexure - 5 it transpires
that the Respondents have not denied about the death of t
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
G
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
H
STEEL AUT. OF INDIA LTD. v. MADHUSUDAN 831
DAS & ORS.
-/* rather submission was that the appellant's father was A
orden~d 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 B
argument by the respondents counsel nor any chemical
__,! j. 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. c
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." D
[Emphasis supplied]
r-
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 E
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 F
f
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 oc-
curred because of stress in the work or his work was otherwise G
1- hazardous in nature.

Even before the Division Bench, such a contention had
not been raised. The Division Bench, despite the same, how-
ever, in its impugned judgment held:
H
832 SUPREME COURT REPORTS [2008] 14 S.C.R.

~-
A "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
B 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 x L

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 ,-:-
c 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
D
accident. It was not even the case of respondent. What would
constitute 'an accident arising out of and in the course of em- ---r-
ployment' has not been defined. Evidently, the said phraseol-
ogy has been borrowed from the provisions of the Workmen's
Compensation Act. We would, however, advert to the said ques-
E tion 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 depen-
.F dant of a deceased employee on compassionate ground is a
matter involving policy decision. It may be a part of the service t
rules. In this case it would be a part of the settlement having the I

force of law. A Memorandum of Settlement entered into by and
between the Management and the employees having regard to
G the provisions contained in Section 12(3) of the Industrial Dis-
putes Act is binding both on the employer and the employee. In -r
Jhe event, any party thereto commits a breach of any of the pro-
visions 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
H
STEEL AUT. OF INDIA LTD. v. MADHUSUDAN 833
DAS & ORS.
-;Ji
Judge opined that the question as to whether there has been a A
breach of t!ie Memorandum of Settlement on the part of the
employer or not involves a disputed question of fact. The Divi-
sion 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 8
an employee. The Division Bench, in our opinion, was not cor-
...( /
rect 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 c
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
D
be considered for appointment in the posts which have fallen
-r- vacant. Appointment on compassionate ground offered to a de-
pendant 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] E

15. Mr. Braj K. Mishra, learned counsel appearing on be-
half 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 F
i 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 G
... r 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 H
834 SUPREME COURT REPORTS [2008]14 S.C.R.

A to the justice 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
B 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 mea-
sure of social benefit but it does not lay down a legal principle
C 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
D [(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 -r-
and merit. No other mode of appointment nor any other
consideration is permissible. Neither the Governments
E 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
F 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
G
make both ends meet, a provision is made in the rules to -t
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.
H
STEEL AUT. OF INDIA LTD. v. MADHUSUDAN 835
DAS & ORS.

The object is not to give a member of such family a post A
-* 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 B
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 c
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 of livelihood was provided a family
would not be able to make both ends meet."
D
[See also Punjab National Bank and Others v. Ashwini
Kumar Taneja (2004) 7 SCC 265]
--r-
In Mohan Mahto v. Central Coal Field Ltd. [(2007) 8 SCC
549], this Court observed:
E
"14. In l.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 F
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, G
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 lndia4. H
836 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 7. Public employment is considered to be a wealth. It in
terms of the constitutional scheme cannot be given on
des~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
B 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.
C 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
D
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
E
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.' "
F
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
G 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
H traceable only to the scheme, executive instructions, rules,
STEEL AUT. OF INDIA LTD. v. MADHUSUDAN 837
DAS & ORS.

etc. framed by the employer in the matter of providing A
-* employment on compassionate grounds. There is no right
of whatsoever nature to clairn compassionate appointment
on any ground other than the one, if any, conferred by the
employer by way of scheme or instructions as the case
may be." B
17. Reverting back to the question as to whether in a case
_., ;>I- 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.
c
This Court in Mackinnon Mackenzie and Co. (P) Ltd. v.
Ibrahim Mahmmed /ssak [(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 D
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 E
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 F
of the employment. The expression applies to employment
1 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
G
put it differently if the accident had occurred on account of
j 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. .. "
H
'~

838 SUPREME COURT REPORTS [2008] 14 S.C.R.

A It was furthermore held:
-k-
I ~

"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
B 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
c 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
D 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 Shakunta/a '-t--··
Ghandrakant Shreshti v. Prabhakar Maruti Garvali and An-
other [(2007) 4 sec 668], (wherein one of us was a member),
E 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)
F "Nothing could be simpler than the words 'arising out of
l

and in the course of the .employment'. It is clear that there
1-
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
G 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 /1".
indirectly engaged on what he is employed to do-gives
a claim to compensation, unless it also arises out of the
H employment. Hence the section imports a distinction which
STEEL AUT. OF INDIA LTD. v. MADHUSUDAN 839
DAS & ORS.
-,~
it does not define. The language is simple and unqualified." A
*** *** ***

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 B
,4 >- 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. c
(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 D
a 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."
E
Yet again, recently in Oriental Insurance Company Lim-
ited 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) F
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 G
~
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 H
840 SUPREME COURT REPORTS [2008] 14 S.C.R.
}-,-

A 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 ;.___
B observed that the e~:pression '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,
c A.C. in Trim Joint District School Board of Management ,,
v

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.' "
D
.,_,._ l·
22. Furthermore, the rights of the parties were required to
F
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 t
I-
E Section 108 ·of the Evidence Act can give rise to t

fructification 'of claim, save and except in very exceptional
cases."
18. For the reasons aforementioned, the impugned judg-
ment cannot be sustained which is set aside accordingly.
F ~
19. The appeal is allowed. However, in the facts and cir-
cumstances of the case, there shall be no order as to costs.
/
N.J. Appeal allowed.

A:_
.--