MAHERUNISHA AHEMADKHAN PATHAN WD O AHEMADKHAN SAHEBKHAN PATHAN Vs. EMPLOYEES STATE INSURANCE CORPORATION

JUDGEMENT

(1.) The appellants have challenged in this Appeal the impugned judgment and order dated 13-7-1993 passed by the E. S. I. Court, Ahmedabad dismissing the Application (E.S.I) No. 45 of 1990. Appellant No. 1 is the widow of Ahemadkhan and appellants Nos. 2 to 6 are the minor children of the deceased.

(2.) The deceased Ahemadkhan was working as a Labourer in New Manekchowk Textile Mills Ltd. On 4-4-1990 he attended the duty at 3-30 p.m. to 12 midnight. While returning from his duty in the midnight hours he was assaulted by the mob during the communal riots, which took place in Ahmedabad on that day and he was stabbed and because of that he died there and then. Ibrahim Abdulla Exh. 12, co-worker of the deceased was also going with him. He witnessed the incident but he managed to escape. F.I.R. was lodged on that very day of the incident by unarmed Head Constable Mr. Pandya before the police and the inquest Panchnama was also prepared on that very day. Maherunisha, widow of deceased Ahemadkhan is examined at Exh. 11, She has also stated in her evidence that while returning from duty her husband was stabbed at about 12-20 hours of the midnight and died. On 18-6-1990 Labour Officer of the Mill-Company addressed a letter to the Manager of respondent E.S.I. Corporation in which also it has been stated that while the deceased was going home after completing his duty in the 2nd shift on the way of his house he was stabbed by the mob, for which the complaint was also lodged. Prior to this also, the Mill-Company reported to the E.S.I. Corporation on 29-5-1990 about the incident. On the incident report received by the Manager of the Local Office of Ahmedabad City, its Manager submitted a report on 25-6-1990 and recommended the case for acceptance of employment injury in the light of the facts mentioned in his report. Inspite of this recommendation, the respondent-Corporation did not accept the case and refused to grant compensation to the widow and the minor children of the deceased. Hence they have filed Application (E.S.I.) No. 45 of 1990 before the E.S.I. Court, Ahmedabad on 12-7-1990 for getting the benefit for which they are entitled under the Employees' State Insurance Act, 1949 (for short 'the Act'). On behalf of the applicants following judgments were cited : (1) Sadgunaben v. E.S.I. Corporation, 1981 GLR 773. (2) Union of India v. Shantaben, 1985 ACJ (Guj.) 818. (3) Bhagubhai v. General Manager, Central Railway, Bombay, 1954(2) LLJ (Bom.) 403: AIR 1955 Bom. 105. (4) Varkeyachan v. Thomman, 1979 ACJ (Kerala) 319. And it was urged that the incident took place in the course of the employment and, therefore, the applicants are entitled for the benefit under the Act. As against this, the respondent-Corporation has relied upon the Full Bench judgment of the Allahabad High Court in the case of Abida Khatun v. G. M. D. L., Varanasi, reported in 1973 0 LIC 666 and it was submitted that there was no evidence that the deceased workman was murdered while returning from duty and, therefore, the applicants are not entitled to get any damages under the Act. After appreciating the oral as well as documentary evidence on record, the learned trial Judge has come to the conclusion that the applicants failed to prove that the deceased Ahemadkhan died due to the injuries received by him during the course of the employment and, therefore, dismissed the Application. Hence this Appeal.

(3.) Mrs. Gupta for the appellants vehemently urged that the learned Judge committed a grave error in dismissing the Application of the appellants on totally erroneous grounds, which are narrated in para 18 of the Judgment. She submitted that the learned Judge has wrongly not relied upon the direct binding decision of this Court as well as of the Bombay High Court, which are directly in favour of the appellants. She submitted that it was not in dispute that the deceased Ahemadkhan died while he was returning from his duty due to the injuries received by him on that night in the assault made by the mob in the communal riots. There is ample evidence on the record to support the oral evidence of Maherunishawidow of the deceased on this point. F.I.R. which was lodged immediately after the occurrence, the Inquest Panchanama prepared immediately after lodging of F.I.R. and the evidence of eye witness Ibrahim Abdulla, Exh. 12 would go to show that the deceased was on his way to home and while returning from his duty he was stabbed by the mob and died just at a short distance from the Mill. She, therefore, submitted that the present case clearly falls under the definition of Employment Injury, which is defined under Sec. 2(8) of the Act and the learned Judge ought to have drawn presumption under Sec. 51A of the Act that the incident took place during the course of employment. There is lot of substance in the submission made by Mrs. Gupta. In the case of Sadgunaben (supra) the Division Bench of this Court held that, "In order to claim the benefits under the Employees' State Insurance Act, particularly sub-sec. (6A) of Sec. 2 it is not considered essential to establish that the accident occurred on the very precincts of the factory premises. The place of accident need not necessarily be located within the limits of the factory premises so long as the place of accident falls within a zone which can be notionally deemed to be the zone of the factory for the purpose of the Act by recourse to the theory of notional extension which evidently has been evolved in order to do social justice as also to do substantial justice to the workman for whose amelioration the benevolent legislation partaking of the character of social insurance has been enacted. (i) As a rule, employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment (ii) Notwithstanding the aforesaid rule, it is now well settled position in law that the said proposition (i) is subject to a rider, namely, that it is subject to the theory of notional extension of the employers' premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work; (iii) notional extension theory can be made recourse to in order to extend in both 'time' and 'place', in a reasonable manner, in order to ascertain whether an accident to a workman be regarded as in the course of employment though he had not actually reached his employers' premises; (iv) Facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of employment of the workman keeping in view the theory of notional extension. Once the theory of notional extension is properly applied to the fact situation pertaining to a particular accident in the peculiar facts and circumstances of that case and it is held that the accident occurred within the area falling within the notional extension theory, dependents of the employee should be entitled to succeed." In that case the employee concerned had left his house 40 minutes before reporting time in order to report for work at the factory. He was actually waiting at the bus stop from where the bus should have carried him to the factory. It was not known exactly what was the distance between the bus stop and the factory. But the formula regarding whether or not the place where the accident occurred is located within the notional extension zone or not is an elastic and flexible formula and accordingly the same was applied in a purposeful manner. Therefore, this Court held that in view of Sec. 51A of the Act a liberal approach is required to be made in regard to case which do not fall within Sec. 51C but to which notional extension theory requires to be applied having regard to law.