DUDHIBEN DHARAMSHI Vs. NEW JEHANGIR VAKIL MILLS LTD

JUDGEMENT

(1.) THE learned single Judge having upheld the Commissioner's order dismissing the claim of compensation by the dependents of the deceased workman in question, they have come in this appeal. There is no dispute that the deceased was an employee of the respondent mill company getting Rs. 175 per month, and that the compensation amount, if the claim was maintainable, would be of Rs. 7,000. The findings of fact which have been arrived at by the learned single Judge are that this employee who belonged to the second shift the mill working at 3-30 p. m. had in the day in question, i. e. , April 4, 1966, started from his house to go to the mill on that afternoon. The mill had devised a rule in order to see that the second shift start at 3-30 p. m. , that the workers should be inside the mill compound five minutes before the shift commenced. The learned Judge believed the presence of the witness Bhikha Mohan, Ext. 26, a co-worker near the gate of the mill about the time when this deceased was knocked down by a cyclist and he died as a result of this accident. The learned single Judge found by accepting the material evidence of Jamadar Motisinh that no queue had been formed and that the gate was open and the deceased was standing on the road in a group. According to the learned Judge the distance at which the main gate was situate was about 10. 15 ft. away where the deceased was standing and talking possibly with fellow workers at about 3. 20 p. m. when the incident was said to have occurred. It is on these facts that the Commissioner as well as the learned single Judge held that the theory of notional extension of the premises could not be invoked on these facts. Therefore, the claim of compensation having been negatived, the dependents have come in this appeal.

(2.) THE legal position in this connection is well-settled in Saurashtra Salt Manufacturing Company v. Bai Velu Raja. [1958-II L. L. J. 24]; A. I. R. 1958 S. C. 881. Their Lordship in terms laid down that as a rule the 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 the journey to and from the place of employment being excluded. Their Lordships, however, pointed out that it was well-settled that this was subject to the theory of notional extension of the employer's premises so as to include an area which the workman passed and repassed in going to and in leaving the actual place of work. There may be reasonable extension in both time and place and a workman may be retarded as in the course of his employment even though he had not reached or had left his employer's premises. The fact 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 at all times this theory notional extension. Their Lordships pointed out the settled legal position that when a workman was on a public road or a public place or a public transport, he was there as any other member of the public and was not there in the course of his employment, unless the very nature of his employment made it necessary for him to be there. A workman was not in the course of his employment from the moment he left his home and was on his way to his work. He certainly was in the course of his employment if he reached the place of work or a point or an area which came within the theory of notional extension, outside of which the employer was not liable to pay compensation for any accident happening to him : B. E. S. T. Undertaking v. Mrs. Agnes, [1963-II L. L. J. 615]; (1963) 25 F. J. R. 66 at page 77. After following this decision and after considering a host of English authorities their Lordships in terms pointed out that under S. 3 (1) of the Act the injury must be caused to the workman by an accident arising out of and in the cause of his employment. The question when does an employment begin and when does it cease, depends upon facts of each case. The Courts, however, had agreed that the employment, does not necessarily end when the "down tool" signal is given or when the workman leaves the actual workshop where he is working. There was a notional extension at both the entry and the exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case, because employment may end or may begin not only when the employee begins to work or leave his tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employee to use only particular means of transport extends the area of the field of employment to the course of the said transport. Though at the beginning the word, "duty" had been strictly construed, the later decisions have liberalised this concept. At pages 70-71 their lordships have quoted with approval a passage from Lord Wrenbury's judgment in St. Helens Colliery Co Ltd. v. Hewitson, (1924) AC 59, where the learned Lord had observed that he supposed certain cases would fall within "incidents" of the employment in which the journey to and from work may fall within the employment, because by implication but not by express words, the employer has indicated that route; and the man owes the duty to obey. But the mere fact that the man is going to or coming from his work, although it is a necessary incident of his employment, is not enough. Thereafter at page 79, their Lordship considered how zone of employment could be extended because of the facility given in the interest of efficiency of the transport service to the employees or free transport in the bus for coming and going to home. Finally, in Mckinnon Mckenzie v. I. M. Issak, [1970-I L. L. J. 14]; their Lordships in terms construed these two relevant conditions in the Act by pointing out that to come within the Act the injury by accident must arise both out of and in the of employment. The word, "in the course of employment" meant "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 an employment, the claim for compensation must succeed unless of course the workman has exposed himself to an added peril by his own imprudent act. Their Lordships adopted the test laid down in Lancashire and Yorkshire Rly. Co. v. Highly, (1917) AC 352, for determining whether the accident "arose out of the employment". Lord Sumner laid down the following test :

(3.) EVEN as per the learned single Judge's findings, the workman had started from his house on that fatal afternoon and had come at the time at about 3. 20 p. m. at a distance of 10-15 ft. from the mill gate, only because of the rule devised by the employer so that the second shift could punctually start at 3. 30 p. m. The entry by that particular gate had been fixed by the mill company for the orderly, convenient agrees and ingress for such a large number of 1,000 to 1,200 employees when one shift ended and the other shift started. Therefore, if a workman was knocked down a cyclist while he was standing near the main entrance gate only about 10-15 ft. away trying to get access in the mill so that he could attend the second shift starting at 3-30 p. m. it is obvious that there was sufficient proximity both in time and place with his employment. It was only an ordinary incident of his employment that he had at that fatal hour of 3-20 p. m. to come at that fatal place of 10-15 ft. distance from the main gate, so that he could obtain access in the mill for attending punctually the second shift which was to start at 3-30 p. m. As pointed out by their Lordships in Saurashtra Salt Mfg. Co. 's case, (supra) a workman would not be in the course of employment from the moment he left his home and was on his way of work, but certainly, he was in the course of his employment when he reached this particular point or area of only 1015 ft. of the main entrance which was the entry gate specified by the mill company, and had come there to obtain access at 3. 20 p. m. at that particular time at which the mill expected him to come up, so that the second shift may punctually start at 3. 30 p. m. Therefore, the area clearly came as per that decision within the theory of notional extension because of the sufficient proximity both in time and space when the workman was obtaining access through the specified mill gate for the propose. As pointed out in the aforesaid passage of Lord Wrenbury which was approved in the B. E. S. T. case, (supra) this case could clearly come within what is called "incident of employment", because, instead of the entire route being prescribed as in other transit cases in the present case the entry gate and timings had been specified by the employer so that the worker could properly leave and enter from that gate facilitating search by the watchman at that particular time, when there was a change over of the shift. The employee would be under a duty to obey this rule of remaining present five minutes before the shift commences inside the compound and to enter by this specified gate for this purpose. Therefore, clearly he came within the zone of employment when he carried out these incidental orders which facilitated orderly and convenient transit of the workman through the specified gate, ensuring punctual starting of the second shift.