Gujarat High Court
Sureshbhai Somabhai Nayani vs State Of Gujarat Through Secretary on 11 August, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Umesh A. Trivedi
C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021
SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1013 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 945 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy YES
of the judgment ?
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SURESHBHAI SOMABHAI NAYANI
Versus
STATE OF GUJARAT THROUGH SECRETARY
RAJKOT DISTRICT PANCHAYAT
================================================================
Appearance:
MR ANAND B GOGIA(5849) for the Appellant
MR RB GOGIA(5850) for the Appellant
MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent No. 1
MR HS MUNSHAW(495) for the Respondent No. 2
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C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021
SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY
CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 11/08/2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. One Mrs.Rekhaben, daughter of Mr.Rameshchandra Kabira and wife of present Petitioner - Mr.Sureshbhai Somabhai Nayani, a Vidya Sahayak (Teacher) appointed by the Respondent - Rajkot District Panchayat in the Rajkot District Panchayat School on 23.1.2001 lost her life while on duty on 9.8.2007, when for the preparation of 'Viranjali Van Mahotsav' Celebrations in the School in Village Jiyana, she was directed by the concerned School Authorities to come on special duty / assignment on the holiday on 9.8.2007 in village Jiyana where the said School is situated for preparation of 'Viranjali Van Mahotsav.'
2. It was a heavy rainy day and the only way to the said School passed through a culvert which was flowing high on the fateful day of 9.8.2007 and while crossing through that culvert, unfortunately, the said Vidya Sahayak - Mrs.Rekhaben was swept away and drowned and her dead body was recovered only after 2 days on 11.8.2007. She died in harness leaving behind her husband - the present Petitioner (Mr.Sureshbhai Somabhai Nayani) and two minor children (Malvika, Page 2 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY aged 19 years and Paras, aged 14 years now as per the Pedigree prepared by Talati (Group-10), Rajkot City on 1.9.2007 which is produced at Page-
71 of the paper-book) at the time of death of Mrs.Rekhaben on 9.8.2007.
3. The husband - Petitioner (Mr.Sureshbhai Somabhai Nayani) applied for Compassionate Appointment by the Respondents which was, however, denied on the ground that she had not completed 5 years of her regular service after regularization in the regular pay-scale of Rs.4000- 100-6000 on the post of Primary School Teacher which was done only w.e.f. 29.3.2006 and she died on 9.8.2007 within such period of 5 years.
Aggrieved by the said rejection of Application for Compassionate Appointment, the husband - present Petitioner (Mr.Sureshbhai Somabhai Nayani) approached the learned Single Judge of this Court by way of Special Civil Application No.945 of 2011 which was, however, rejected by the learned Single Judge vide order dated 5.7.2016 and being aggrieved by the same, the present Letters Patent Appeal is filed before this Court.
4. The learned counsel for the Appellant, Mr.Anand B. Gogia, urged before us that the entire period of her service right from 25.1.2001 till her death, deserved to be treated as regular service as she had faced the regular selection process and her appointment could not be said to be Page 3 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY irregular or illegal in any manner and, therefore, this aspect of the matter was squarely covered by the decisions of this Court in the case of Sugandhivedi Fakirchand Malaviya v. State of Gujarat & Others, reported in 2020 (2) GLR 1567 as also in the case of Anitkumar Amrutbhai Patel v. State of Gujarat & Others, reported in 2020 (3) GLR 1766. He submitted that the Respondents have unnecessarily taken a negative and reticent attitude in the matter and instead of taking a favourable and sympathetic view in favour of the family of the deceased Government Servant, they have denied not only the Compassionate Appointment to the Petitioner - husband (Mr.Sureshbhai Somabhai Nayani) illegally, but have also not given any amount of compensation to the said family, though she had died while on duty. He also relied upon the Circular of the State Government dated 5.7.2011 regarding payment of lumpsum financial assistance to the dependent family of Class-III and IV employees, who died while in service.
5. On the other hand, learned Assistant Government Pleader, Mr.K. M. Antani for the Respondent No.1 - State as well as learned counsel, Mr.H. S. Munshaw for the Respondent No.2 - Rajkot District Panchayat, have submitted that deceased Rekhaben could not be said to have completed 5 years of her regular service after grant of regular pay-scale w.e.f. 29.3.2006 after completion of 5 years as she was appointed only on Page 4 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY 23.1.2001 and, therefore, the Application for Compassionate Appointment was rightly rejected under the relevant Rules. As far as question of compensation is concerned, the learned counsel for the Respondents only relied upon the same Circular dated 5.7.2011 based on their argument of regular service not being beyond a period of 5 years.
6. Having heard the learned counsels for the parties, we are of the opinion that the present Letters Patent Appeal filed by the Petitioner -
husband (Mr.Sureshbhai Somabhai Nayani) deserves to be partly allowed to the extent of grant of ad-hoc compensation on account of tortious liability of the State and Respondent - Panchayat Samiti. The relief of Compassionate Appointment to the Petitioner - husband, of course now, cannot be granted after 14 years of the unfortunate event of death of his wife - Rekhaben on 9.8.2007, as the very purpose of Compassionate Appointment is to tide over the immediate financial crisis, which happens on account of death of Government Servant while in harness being the bread-winner of the family. As far as her entitlement to be treated as regular in service is concerned, the said issue is no longer res-integra and has been concluded by the Division Bench of this Court in the case of Shree Yogkshem Foundation for Human Dignity v. State of Gujarat, reported in 2012 (5) GLR 4533, in which the Hon'ble Acting Chief Justice (Hon'ble Bhaskar Bhattacharya) writing the judgment on Page 5 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY behalf of the Court in a Public Interest Litigation, held as under :
"1. By this Public Interest Litigation, the writ-petitioner has prayed for issue of appropriate writ, order and direction and thereby to quash and set aside the fixed-pay-condition imposed in the policy framed by the Finance Department by Resolutions KhRCh/2002/57/Z.1 dated February 16, 2006 and April 29, 2010 and to direct the respondent to pay minimum of the pay-scale available in the cadre of the employees who are appointed on regular permanent posts with deemed date effect in the interest of justice; or in the alternative, to direct the respondent to pay minimum wage to the fixed pay employees with corresponding effect of 6th Pay Commission with deemed date effect, i.e. January, 2006 with interest at 12%, in the interest of justice. The writ-petitioner has also prayed for quashing and setting aside the decision taken by the State Government dated February 24, 2011 and to direct the State Government to pay minimum wage to the fixed pay employees with corresponding effect of 6th Pay Commission with deemed date effect, in the interest of justice. 2. The case made out by the writ-petitioner may be summed up thus:
1.1 The Finance Department of the State Government has framed fixed-pay policy by Resolutions no. KhRCh/2002/57/Z.1 dated February 16, 2006 and April 29, 2010 and made recruitment on various permanent posts by giving advertisement and after following complete selection procedure.
1.2 The writ-petitioner, in the past, filed Special Civil Application No. 11810 of 2008 before this Court, wherein this Page 6 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY Court directed the State Government to decide the representation made by the writ-petitioner.
1.3 In spite of the directions given by this Court, the State Government not having taken any decision, a reminder was sent to the respondent and as a last resort, when the representation was not decided, the writ-petitioner filed Special Civil Application No. 2492 of 2009 which was ultimately decided on August 26, 2010. By the said order, the Court, inter alia, passed the following directions:
"5. From the aforesaid, it will be evident that the State Government is not guided by the Minimum Wages Act, and fixed the wages on the basis of recommendations of the Revision Committees, and taking into consideration the minimum pay which is received by regular employee, they have revised the fixed wages which is much more than the minimum pay fixed for the regular scale of pay. However, we find that pay has been revised by the Revision Committee on the basis of recommendations of 5th Pay Commission.
Now, recommendations of 6th Pay Commission have been implemented with effect from January 2006, therefore, it is desirable for the State Government to determine the fixed wages of Class IV and Class III employees, taking into consideration the minimum wages fixed in pursuance of the recommendations of the 6th Pay Commission corresponding to Class IV and Class III regular employees. The Government will also consider to do away with the contractual appointments by making the posts regular, if a fix pay post is continued for more than three years. Such decision should be taken within three months and be communicated to all the establishments with a copy to the Registrar General, High Court of Gujarat. The writ petition and the Civil Application both stand disposed of with the aforesaid observations and directions. No costs."
2. The State Government set up a Cabinet Sub-Committee to take up appropriate decision and the Cabinet Sub-Committee Page 7 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY submitted its report to the government and on consideration of the relevant papers, the government came to the conclusion that there was no need to make any change in the existing policy framed by the Finance Department vide Resolutions no. KhRCh/2002/57/Z.1 dated February 16, 2006 and April 29, 2010.
3. Being dissatisfied, the present writ-application has been filed.
4. According to the writ-petitioner, the appointments under the fixed-pay-scheme being made on permanent vacant sanctioned posts and the recruitment being made by the selection board, which was duly authorized to make the selection, and the criteria of selection i.e. educational qualifications, age, physical fitness etc. being the same which are followed in regular recruitment and the above process being adopted for recruitment on permanent posts, the policy taken by the State Government for appointment on fixed-pay was unconstitutional, arbitrary, mala fide and violative of Articles 14 and 16 of the Constitution. According to the writ-petitioner, the employment under the fixed-pay-basis on permanent sanctioned posts after following due selection procedure was violative of Article 23 of the Constitution of India. The writ-petitioner further contended that the Bonded Labour System [Abolition] Act, 1976 having prohibited bonded-labour- system and in cases where the private employers are found to be exploiting and engaging the bonded laboures, the said Act casts a duty upon the State to find out the bonded-labourers, which is unlawful, arbitrary, mala fide and violative of Articles 13, 14, 16 and 23 of the Constitution of India; but the State as an employer is acting contrary to the said principles. The writpetitioner further Page 8 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY contends that the duty which the fixed-payemployees are discharging is the same which is discharged by the regular-pay- employees and not only that, but the working hours, the nature of work, responsibility and accountability are the same except the scale of pay and that is nothing but discrimination without legal nexus and hence, the same is violative of Articles 14 and 16 of the Constitution of India.
xxx xxx xxx
37. We, therefore, find that this Public Interest Litigation should be allowed. The newly appointed employees, before getting the benefit of the regular scale on being found to be suitable on completion of the fixed period, should get at least, the total amount payable to an employee in the lowest grade of pay scale for that post from the date of their appointment. Similarly, the period during which employees would remain in the fixed scale before completion of the period of probation should be treated to be part of their service-period for all future benefits including the retiral ones once they are found to be suitable on completion of probation period. The writ-application is thus allowed to the aforesaid extent. The State Government is directed to modify the aforesaid scheme and issue modified resolution in terms of this order within a period of one month."
7. In the case of Anitkumar Amrutbhai Patel (Supra), the learned Single Judge of this Court also held that the ad-hoc teachers can also fall within the definition of 'Regular Teacher' upon completion of 5 years of Page 9 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY their service as Ad-hoc Teachers and such period of 5 years cannot be counted when they are granted regular pay-scales only and thereafter.
Relevant Para.16 of the said judgment is also quoted below for ready reference :
"16. In the considered opinion of this Court, there lies fallacy in the interpretation given by the State Authority to the expression "regular teacher" incorporated in the definition of "old teacher". The respondents are interpreting the same as if the expression "regular teacher" applies to only those teachers who are conferred the regular pay scale after completion of five years. In fact the petitioners are confirmed on the post after rendering the service of five years. No provision of law is pointed out to this Court which bars ad hoc teachers from the definition of "regular teacher". In absence of such stipulation in the Rules, the respondent authorities cannot supply their own interpretation by excluding the petitioners from the definition and bar them from participating in the recruitment process. The confirmation of regular pay scale is not sine qua non for deciding the status of such teachers. The appointments of the petitioners were conferred by undertaking a regular selection process and after completion of 5 years of services as ad hoc they are placed in the regular pay scale. Once, they are confirmed and are placed in the regular pay such confirmation relates back to their original date of appointment. Their earlier services do not get washed away, and they cannot be treated as if they are fresh appointees. Hence, on completion of satisfactory service of five years and on their confirmation, the petitioners get encompassed within the Page 10 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY definition of "old teachers".
8. The same learned Single Judge in the case of Sugandhivedi Fakirchand Malaviya (Supra) also granted pensionary benefits to the petitioner wherein considering her total service from the date of appointment itself, as pensionable service rendered by her. Relevant Para.14 and 15 of the said judgment are also quoted below for ready reference.
"14. Thus, the petitioner cannot be made to suffer on two counts (1) she is not granted any regular salary and she is appointed on ad hoc basis on fixed wages and (2) thereafter she is also denied the pensionary benefits for the aforesaid period. The State Authorities are benefitted by her service and it is not the case that she was appointed as a back door entry. The respondent department, in which she was serving is also a pensionable establishment. Once the service of the petitioner has been regularized, her earlier service cannot be ignored for the purpose of pension, as the continuity of service is counted from the date of initial appointment not from the date, she is placed in the regular pay scale.
15. Under the circumstances and looking to the facts of the case, the action of the respondent- authorities denying the benefits of pension is required to be deprecated. The respondents are hereby directed to pay the pensionary benefits to the petitioner by considering her total service from 18.08.2004 till she retired on reaching the age of superannuation on 31.10.2014.Page 11 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022
C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY Her pension shall be fixed accordingly. Necessary orders in terms of the directions of this Court shall be passed within a period of one month from the date of receipt of the writ of this order."
9. Thus, as far as the period of service of the deceased Rekhaben to be considered as regular service as Vidya Sahayak right from 25.1.2001 is concerned, it can be held to be so as there is no dispute before us that the deceased Rekhaben was appointed after facing due selection process and merely grant of her regular pay-scale at a later point of time will not exclude the previous period of 5 years for the purposes of compute her benefits available under the law.
10. Unfortunately, therefore, even though the case could fall within the four corners of the relevant Rules for grant of Compassionate Appointment to the husband, merely because it has not been done so for a long period of time by now, we are not inclined to grant that relief to the Petitioner - husband at this belated stage. But, nonetheless, we are of the opinion that certainly the Respondents ought to have considered the case for grant of ad-hoc compensation to the family as Rekhaben had died admittedly while in service and going on duty and in an unfortunate accident being swept away by over-flowing culvert while crossing the same for reaching the school while on special duty assigned to her on 9.8.2007.
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11. In regard to the grant of compensation, not only the Circular dated 5.7.2011 is found to be to relevant but, certain Case Laws including some foreign jurisdiction cases and Indian Courts are helpful in this regard.
12. The Circular dated 5.7.2011 is quoted below in extenso for ready reference.
"Payment of Lump-sum Financial Assistance to the dependent fam.
Of Class III and Class IV employees who die while in service regarding.
Government of Gujarat General Administration Departments Resolution No.RHN/102009/1651/K Sachivalaya, Gandhinagar Date : 5/7/2011 Read :
(1) Govt. Resolution, General Administration Deptt.
No:BHARAT/ 2197/K, dated 10/3/2000.
(2) Govt. Resolution,, General Administration Deptt.
No:BHARAT/ 1201/910(2) K, dated 7/9/2002.
(3) Govt. Resolution, General Administration Deptt.
No:BHARAT/1201/910(3)/ K, dated 7/9/2002.
(4) Govt. Resolution, G. A. D. No: BHARAT/102004/385/K dated 15/6/2004.
(5) Govt. Resolution, G. A. D. No:BHARAT/102004/385/K, dated 30/9/2004, Page 13 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY RESOLUTION Vide Government Resolution, General Administration Department dated 10.3.2000 referred to at Sr. No.(1) above, the revised scheme of giving compassionate appointment to a member of the dependent family of those Class III and Class-IV employees who die in harness, has been pronounced. Thereafter certain amendments have been made in the scheme vide other Government Resolutions referred to above.
2. Taking into consideration the provisions of the existing scheme of giving compassionate appointment to the dependent of the deceased employees who die while in service, the difficulties being experienced while implementing these provisions, the court cases filed in the wake of rejection of compassionate appointment, the report for introducing a scheme of paying lump-sum financial package in lieu of compassionate appointment to the dependent of the decease employees, submitted earlier by the committee chaired by Smt. Nethra Shenoy, the then Principal Secretary (Planning), General Administration Department, constituted for reviewing the existing scheme of compassionate appointment and also the representation now submitted by "The Gujarat State Employees Co-ordination Committee" and "The Gujarat Sachivalaya Federation" to provide lump-sum financial assistance in lieu of giving compassionate appointment to the dependent of the deceased employees, the matter of introducing a scheme of paying lump-sum financial assistance to the dependent family of such deceased employees in lieu of compassionate appointment, was under
consideration of the Government for quite some time.Page 14 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022
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3. After careful consideration of this entire matter, in supersession of the existing scheme of giving compassionate appointments to the members of dependent families of those Class III and Class IV employees, who die while in service, a scheme for payment of lump-sum financial assistance to such families, is hereby introduced as under :
(1) Dependent family of Class II and Class IV employees who die while in service, shall be paid lump-sum financial assistance as follows -
Sr. The remaining period of service of the Amount of No. deceased employee. lump-sum financial assistance
1. The period of remaining service is 20 Rs.6 lakh years or more
2. The period of remaining service is less Rs.5 lakh than 20 years but more than 10 or more.
3. The period of remaining service is less Rs.4 lakh than 10 years.
(2) Lump-sum financial assistance as mentioned above shall be admissible to the dependent families of the deceased Class-III and Class-IV employees who are appointed on regular basis through the prescribed recruitment process and who have put in at least five years of service as well as to the deceased class III and class IV employees who are on work-charge establishment.
This scheme shall not apply to daily wage workers, casual workers. apprentices and those who are appointed on ad-hoc Page 15 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY basis, contract or re-employment basis.
(3) The lump-sum financial assistance shall be paid only to the legitimate wife or husband or son or unmarried daughter (including legally adopted child under 'the Hindu Adoption Act, 1956' in case of childless employee during his/her existence), who is fully dependent on the concerned employee at the time of his/her death and in whose name the family pension is admissible has been granted.
(4) If husband and wife are both Government employees and one of them dies while in service, in that case, this assistance shall not be admissible to the family of such deceased employee.
(5) If husband/wife of the Government employee who died while in service, is serving in Government of India, Government of Gujarat or other State Government, semi-Government Institutions, Board / Corporation undertaking by the State /Central Government, Grant-in-aid Institutions, Local Self-Governing Institutions, Taluka District Panchayat, Nationalized Banks, Co-operative Institutions (e.g. Nagrik Co-operative Banks, District Milk Producing Federations, GUJCOMASOL, Agricultural Produce Marketing Committee of the State, District Central Banks etc. and any Institutions formed under the Act of the State Government or Central Government, this assistance shall not be admissible to the family of such deceased employees.
4. Sanction to pay such lump-sum financial assistance to the dependent families of the deceased Class-III and Class-IV employees shall be granted by the concerned Heads of Department.
Page 16 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY If such cases fall under Sachivalaya Departments, the concerned Sachivalaya Department shall grant sanction for paying such lump- sum financial assistance.
It should be ensured that the amount of such lump-sum financial assistance is paid within three months from the date of the demise of the employee, to the person in the family of the deceased employee, who is entitled for / has been granted the family pension as mentioned in para 3(3) above, by completing the procedure of sanctioning such amount at the earliest, after verifying the death certificate and other necessary documents.
5. All the pending applications of giving compassionate appointments to the members of the dependent families of such deceased Class-III and Class-IV employees shall be disposed of as per this new scheme.
6. Cases of giving compassionate appointments to the members of the dependent families of the deceased Class-III and Class-IV employees which have already been rejected, shall not be reconsidered under this scheme.
7. This scheme shall apply uniformly in the cases of the dependent families of those deceased Class III and Class IV employees serving under State services, Panchayat services and Grant-in-aid Institutions, who die while in service.
8. This issues with the concurrence of Finance Department vide the note on this department file of even number, dated 18/4/2011.
By order and in the name of the Governor of Gujarat.
Sd/-
(J. M. Joshi) Page 17 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY Under Secretary General Administration Departments"
Government of Gujarat"
13. Let's now have a look at some of the cases where a tortious liability was fixed on the Employer, in some English Cases and some cases decided in India.
14. In Lancashire and Yorkshire Railway Co. v. Highley [1917] UKHL 509 , 1917 AC 352, Lord Sumner of the Court of Appeal -
England held as under :
"In my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute and it is generally of some real assistance. It is this--Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury."Page 18 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022
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15. In Chappel v. Hart (MANU/AUSH/0051/1998), the House of Lords developed the 'but for' test. Meaning thereby that tortious liability would not have occurred as a cause for compensation but for the negligence of the defendants. In the present case, the accident by drowning of the deceased Government servant apparently would not have happened 'but for' she being called on a special duty on 9.8.2007 for preparation of 'Viranjali Van Mahotsav'. That is why this responsibility to pay compensation is fixed on the tortfeasor i.e. the State Panchayat Samiti. The relevant portion of the said judgment is also quoted below for ready reference.
"In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense (Fitzgerald v Penn MANU/AUSH/0067/1954 : [1954] HCA 74; (1954) 91 CLR 268 at 277- 278 per Dixon CJ, Fullagar and Kitto JJ; March v Stramare (E & MH) Pty Ltd MANU/AUSH/0003/1991 : [1991] HCA 12; (1991) 171 CLR 506 at 515 per Mason CJ, 522-523 per Deane J). In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude (March v Stramare (E & MH) Pty Ltd)."]. Consequently, value judgments and policy as well as our "experience of the 'constant conjunction' or 'regular sequence' of pairs of events in nature" [ Hart and Honoré, Causation in the Law, 2nd ed Page 19 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY (1985) at 14.] are regarded as central to the common law's conception of causation.
The rejection of the "but for" test as the sole determinant of causation means that the plaintiff in this case cannot succeed merely because she would not have suffered injury but for the defendant's failure to warn her of the risk of injury. However, his failure to warn her of the risk was one of the events that in combination with others led to the perforation of her oesophagus and damage to the right recurrent laryngeal nerve. Without that failure, the injury would not have occurred when it did and, statistically, the chance of it occurring during an operation on another occasion was very small. Moreover, that failure was the very breach of duty which the plaintiff alleges caused her injury. The defendant's failure to warn, therefore, must be regarded as a cause of the plaintiff's injury unless either common sense or legal policy requires the conclusion that, for the purposes of this action, the failure is not to be regarded as a cause of the plaintiff's injury.
Underlying the rejection of the "but for" test as the determinant of legal causation is the instinctive belief that a person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury that befell the plaintiff. As Mason CJ emphasised in March [MANU/AUSH/0003/1991 :
[1991] HCA 12; (1991) 171 CLR 506 at 509.], causation for legal purposes is concerned with allocating responsibility for harm or damage that has occurred. So the mere fact that injury would not have occurred but for the defendant's act or omission is Page 20 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY often not enough to establish a causal connection for legal purposes. Thus, in Leask Timber and Hardware Pty Ltd v Thorne [MANU/AUSH/0066/1961 : [1961] HCA 73; (1961) 106 CLR
33.], members of this Court accepted that the driving of a crane by an uncertificated driver was not causally related to the death of the plaintiff's husband, notwithstanding that driving a crane without a certificate was a breach of the law and that the death would not have occurred but for that breach."
16. In Tame v. New South Wales (2002) 191 ALR 449, it was also held that where a tort of negligence is non-intentional, the compensation in such cases can be granted. Para.179 of the said judgment is quoted below for ready reference :
"179. This was said at a time when it was thought that the tort of negligence was confined to deeds and did not extend to careless words, and Derry v Peek decided that in an action in deceit the plaintiff must prove "actual fraud". Earlier, in 1885, the New South Wales Full Court, in denying liability for the mis-delivery of a telegram which caused "nervous shock", had said that "no erroneous statement is actionable unless it be intentionally false... For mere negligence no action will lie." This foreshadowed the decision in Wilkinson v Downton which permitted recovery in respect of "nervous shock" deliberately inflicted by a false statement made with intent that it be believed. The subsequent development of the modern tort of negligence saw the extraction of this rule from what today would be identified as a species of Page 21 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY malicious falsehood and its application by incremental steps to the field of non-intentional harm. At each step, attempts were made to posit limitations which it was expected would minimise false claims and avoid indeterminate liability."
17. The Supreme Court in the case of State of Rajasthan v. Ram Prasad and Another, reported in (2001) 9 SCC 385, held that the claimant was entitled to compensation under the provisions of the Workmen's Compensation Act, if the death had taken place on account of lightning. The defense taken by the employer that it was on account of act of God was rejected by the Supreme Court. The short order made by the Hon'ble Court in that case is quoted below for ready reference :
"1. A claim was made under the Workmen's Compensation Act, 1923 for compensation in respect of death of Smt Gita who died on account of an accident that took place while she was engaged in doing work for the appellant.
2. The accident, it is stated, took place on account of lightning. The contention put forth on behalf of the appellant is that the mishap of death of Smt Gita due to lightning is an act of God and, therefore, it is not liable to pay compensation. This contention has been rejected not only by the Commissioner for Workmen's Compensation but also by the learned Single c Judge in appeal and thereafter by a Division Bench in a further appeal. The view taken is that the concept of the liability under the Act is wide enough to cover a case of this nature inasmuch as death had Page 22 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY taken place arising as a result of accident in the course of employment. It is, no doubt true that accident must have a casual connection with the employment and arise out of it. If the workman is injured as a result of natural force such as lightning though in itself has no connection with employment, she can recover compensation by showing that such employment exposed her to such injury. In this case the finding is that the said Smt Gita was working on the site and would not have been exposed to such hazard of lightning striking her had she not been working so.
3. The learned counsel for the appellant relied upon a decision of this Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Mahmmed Issak The view taken by the courts below is not inconsistent with the view taken by this Court. The appeal is therefore dismissed."
18. The Supreme Court in the case of Union of India and Another v.
Surendra Pandey, reported in (2015) 13 SCC 625, has held and observed as under :
"2. The respondent was serving as a Sepoy in the Indian Army's Air Defence Corps. Having served for nearly 17 years he was discharged from service on 1-7-2004 upon completion of the tenure. It is not in dispute that service pension admissible to him has been released in his favour. Since, however, the respondent had suffered a disability while in service he appears to have claimed disability pension also which was declined by the Page 23 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY appellants on the ground that the disability was neither attributable nor aggravated by military service.
xxx xxx xxx
4. The respondent's case in the writ petition and so also before us is that while posted in a field area in the State of Jammu and Kashmir he was authorised to go on annual leave for a period of two months. His further case is that having started his homeward journey from Jammu on 25-3-1997 he travelled to Hajipur, ahead of Sewan in the State of Bihar, by train. On 27-3-1997 while boarding a bus from Hajipur to reach Patna to join his family he met with an accident that resulted in a disability, assessed at 20% by the Medical Board concerned. A court of inquiry ordered into the incident recorded a finding that the accident and the resultant injury suffered by the respondent were not attributable to military service. The claim for payment of disability pension was on that finding declined by the appellants, according to whom the respondent was authorised to travel up to Gopalganj, his home station via Lucknow, Gorakhpur and Sewan. Any accident involving the respondent at Hajipur was, according to the appellants, in no way related to military service or the time requisite for completing the homeward journey which the respondent was authorised to undertake.
xxx xxx xxx
17. In Jujhar Singh case [(2011) 7 SCC 735 : (2011) 2 SCC (L&S) 274] this Court was dealing with the question whether the Page 24 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY respondent who had met with a road accident in his native place and sustained grievous injury resulting in permanent disability was entitled to disability pension. The respondent in that case had upon recovery from the injury continued in military service and superannuated with normal service pension. Disability pension was however declined to him despite representation although it was admitted that during his tenure in the army he had suffered a permanent disability. This Court held that although the respondent was entitled to claim service pension he would not be entitled to any disability pension in the absence of a nexus between the disability and the act of omission or commission resulting in the injury suffered by him. Inasmuch as the respondent had sustained the injury and consequent disability when he was on annual leave that too in his hometown in a road accident, he was not entitled to any disability pension as the disability was not attributable to military service, observed this Court. What is important to note is that the Court declined relief of disability pension in that case in the absence of any causal connection between the "injury/disability" and "military service". That, however, is not the position in the case at hand. There is a reasonable nexus and causal connection between the disability and the military service of the respondent at the relevant time. He was authorised to perform a journey commencing 25-3-1997 and the accident that led to his disability occurred within two days from the commencement of the journey from Jammu on 25-3-1997. The proximity in point of time between the homeward journey that started from Jammu and the date when he met with the accident as also the distance between the place from where the journey was started and the Page 25 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY place to which he was travelling would give rise to a reasonable inference that the authorised journey had not ended when he met with the incident. The case may have been different if the respondent had reached the destination engaged in some activity, unrelated to military service and in the course of such activity met with an accident resulting in a disability.
18. In Jujhar Singh case [(2011) 7 SCC 735 : (2011) 2 SCC (L&S) 274] the accident occurred in his hometown causing a disability having no causal connection with the military service of the claimant. The present is not a case of that type. We are inclined in the present case to accept the respondent's version that he had not reached the destination when he on 27-3-1997 met with the accident that caused a disability to him. We therefore see no reason to interfere with the order passed by the Tribunal, no matter for reasons different from those recorded by the Tribunal."
19. The Supreme Court in the case of Poonam Devi and Others v.
Oriental Insurance Company Limited, reported in (2020) 4 SCC 55, has held and observed as under :
"2. The deceased was aged 21 years, in the employment of Respondent 2 (since deleted), and was driving her TATA 407 vehicle bearing registration No. UP 15P 1689 on 11-6-2003 from Ambala to Meerut, a distance of approximately 200 km. At about 12.30 p.m., when he approached the bridge near Village Fatehpur, the deceased went to the Yamuna canal to fetch water Page 26 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY and also to have a bath. Unfortunately, he slipped into the canal and died. The vehicle was insured with the respondent Insurance Company. PW 2, who was standing near the bridge, deposed that the deceased had gone to fetch water in a can along with the cleaner who tried to save him, but both slipped into the canal. The Workmen's Compensation Commissioner by order dated 12- 12-2005 allowed the claim as aforesaid.
xxx xxx xxx
11. Coming to the facts of the present case, the deceased was driving the truck of Respondent 2 from Ambala to Meerut. Indisputably he was in the course of his employment. We can take judicial notice of the fact that considering the manufacturer's specification, the cabin of the truck was not air-conditioned and would have been a baking oven in the middle of the afternoon in the sultry monsoon heat of June 2003, when the temperature was touching 42.6° C in Yamunagar (Haryana) (source :
weatheronline.in). It was a compulsion for the deceased to stay fresh and alert not only to protect the truck of Respondent 2 from damage but also to ensure a smooth journey and protect his own life by safe driving. We can also take judicial notice of the fact that the possibility of the truck also requiring water to prevent overheating cannot be completely ruled out. In these circumstances, can it be said that the act of the deceased in going to the canal to fetch water in a can for the truck and to refresh himself by a bath before continuing the journey was not incidental to the employment? Every action of the driver of a truck to ensure the safety of the truck belonging to the employer and to ensure his own safety by a safe journey for himself has to Page 27 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY be considered as incidental to the employment by extension of the notional employment theory. A truck driver who would not keep himself fresh to drive in such heat would be a potential danger to others on the road by reason of any bona fide errors of judgment by reason of the heat. The theory of notional extension noticed in the Agnes [BEST Undertaking v. Agnes, AIR 1964 SC 193] and followed in Leela Bai [Leela Bai v. Seema Chouhan, (2019) 4 SCC 325 : (2019) 2 SCC (Civ) 334 : (2019) 1 SCC (L&S) 661] is extracted hereunder : (Leela Bai case [Leela Bai v. Seema Chouhan, (2019) 4 SCC 325 : (2019) 2 SCC (Civ) 334 : (2019) 1 SCC (L&S) 661] , SCC pp. 327-28, para 9).."
20. On the basis of the aforesaid analysis of facts and law including the compensation Circular applicable dated 5.7.2011, we are of the opinion that grant of ad-hoc lumpsum compensation for the benefit of Petitioner -
husband of the deceased Government Servant - Rekhaben and her two minor children, namely, Malvika, aged 20 years and Paras, aged 14 years, would be lawful and necessary to meet the ends of justice and would be in the fitness of the things.
21. Accordingly, we partly allow this Letters Patent Appeal and direct the Respondents to award a cash compensation of Rs.5 lakhs to the Petitioner for the benefit of all the 3 members of the family left behind by deceased Rekhaben. The said compensation may be paid partly in cash and partly in the form of a Fixed Deposit in the Nationalized Bank, namely State Bank of India for a period of 5 years in the joint names of Page 28 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022 C/LPA/1013/2016 CAV JUDGMENT DATED: 11/08/2021 SURESHBHAI SOMABHAI NAYANI v STATE OF GUJARAT THROUGH SECRETARY the Petitioner - Mr.Sureshbhai Somabhai Nayani and two children of the deceased Government Servant, namely, Malvika, aged 19 years and Paras, aged 14 years. Out of the said sum of Rs.5 Lakhs, a sum of Rs.2 Lakhs will be paid by cheque in favour of present Petitioner -
Mr.Sureshbhai Somabhai Nayani immediately and the Fixed Deposit of remaining Rs.3 Lakhs will be taken in the joint names of aforesaid 3 persons. The maturity value of the FDR with interest will be divided in the equal three half portions to be paid by cheques to the Petitioner -
Mr.Sureshbhai Somabhai Nayani and two children, namely, Malvika, aged 19 years and Paras, aged 14 years.
22. The District Collector, Rajkot shall disburse the said compensation in the form of cheque of Rs.2 Lakhs and Fixed Deposit of Rs.3 Lakhs within a period of 3 months from today and the funds for this purpose will be made available by the Respondent No.2 - Rajkot District Panchayat to the District Collector, Rajkot. The Compliance Report of the same may be submitted before this Court on or before 31.12.2021, failing which both the Respondents will remain present in the Court. No costs.
(DR. VINEET KOTHARI,J) (UMESH A. TRIVEDI, J) V.J. SATWARA Page 29 of 29 Downloaded on : Sun Jan 16 07:56:55 IST 2022