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Judgment
B.J. Shethna, J.—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 Ahemad Khan and appellant Nos. 2 to 6
are the minor children of the deceased.
The deceased Ahemad Khan 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 Pandya before the police and the inquest panchnama was also prepared on that very day. Maherunisha, the widow of deceased
Ahemad Khan, 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, 1948 (for short ''the Act''). On behalf of
the applicants following judgments were cited:
(1) Sadgunaben Amrutlal v. Employees'' State Insurance Corporation 1982 ACJ (Supp.) 443 (Gujarat).
(2) Union of India v. Shantaben 1985 ACJ 818 (Gujarat).
(3) Bhagubai Vs. General Manager, Central Railway, V.T., Bombay, .
(4) Varkeyachan v. Thomman 1979 ACJ 319 (Kerala).
And it was urged that the incident took place in the course of 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.
General Manager, Diesel Locomotive, Varanasi 1972 ACJ 489 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
Ahemad Khan died due to the injuries received by him during the course of the employment and, therefore, dismissed the application. Hence this
appeal.
Mrs. A.H. 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 Ahemad Khan 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
Maherunisha, widow of the deceased, on this point. F.I.R. which was lodged immediately after the occurrence, the inquest panchnama prepared
immediately after lodging of F.I.R. and the evidence of eyewitness 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 u/s 2(8) of the Act and the learned Judge ought to have
drawn presumption u/s 51-A 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 Sadgunaben Amrutlal v. Employees'' State Insurance Corporation 1982 ACJ 443, the Division Bench of this Court held
that in order to claim the benefits under the Employees'' State Insurance Act, particularly Sub-section (8) of Section 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 may be regarded as in the course of
employment though he had not actually reached his employment 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 would 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 Section 51-A of the Act a liberal approach is required to be made in regard to case which does not fall within Section 51-C but to
which notional extension theory requires to be applied having regard to law.
Present case is a better case wherein there is direct evidence of Ibrahim Abdulla who has stated that when he and another workman, Ahemad
Khan, were going from the duty, the mob attacked them in which the deceased died. Therefore, I am of the view that the present case was
squarely covered by the judgment of this Court in Sadganuben ''s case 1982 ACJ (Supp.) 443 (Gujarat). In the case of Bhagubai Vs. General
Manager, Central Railway, V.T., Bombay, , the deceased was working as Mukadam on Kurla Railway Station and he was staying in railway
quarters near Kurla Railway Station. When he was going for his duty at that time he was assaulted by some unknown persons and murdered. In
that case the Bombay High Court has held that there must be a casual connection between the accident and the employment in order that the Court
can say that the accident arose out of the employment of the deceased and the cause contemplated is the proximate cause and not any remote
cause. It has been further held that:
It is now well settled that the fact the employee shares that peril with other members of the public is an .irrelevant consideration. It is true that the
peril which he faces must not be something personal to him, the peril must be incidental to the employment. It is also clear that he must not by his
own act add to the peril or extend the peril. But, if the peril which he faces has nothing to do with his own action or his own conduct, but it is a
peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril a causal
connection is established between the employment and the accident.
After observing the aforesaid, the Bombay High Court has held that:
In our opinion, once the applicant has established that the deceased was at a particular place and he was there because he had to be thereby
reason of his employment and he further establishes that because he was there he met with an accident, he has discharged the burden which the
law places upon him. The law does not place an additional burden upon the applicant to prove that the peril which the employee faced and the
accident which arose because of that peril was not personal to him but was shared by all the employees or the members of public.
The facts of present case are almost identical to the case of Bombay High Court. The only difference is that in this case Ahemad Khan was
stabbed when he was returning from duty. Thus, this case is also squarely covered by Bombay High Court decision in Bhagubhai''s case (supra).
Two other decisions are cited, one of this Court Union of India v. Shantaben 1985 ACJ 818 (Gujarat) and another of Kerala High Court
Varkeyachan v. Thomman 1979 ACJ 319 . However, the same are not considered in detail as in those cases the workman died when they were
actually on duty and in the place of employment. However, in my opinion, both the above judgments directly apply to the facts of this case and the
learned Judge ought to have relied upon the same and granted the application.
However, Mr. Kaushal Thaker for the Corporation vehemently submitted that the learned Judge has rightly rejected the application and not
relied upon the aforesaid two cases of this Court as well as of Bombay High Court. He referred to the Full Bench judgment of the Allahabad High
Court in Abida Khatun''s case 1972 ACJ 489 and submitted that Allahabad High Court has relied upon the judgment of the Supreme Court in the
case of Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak 1969 ACJ 422 , for dismissing the application of the appellant. It is
a majority decision. In that case, it has been held that, ""There was absolutely no evidence as to who caused the murder and what was the motive
behind it."" In that case it was not known that there was any risk which was ordinarily inherent in the discharge of the duties of the deceased and it
was also not established that the workman was exposed to some special risk at the place where the accident took place. It is also true that for
arriving at the aforesaid conclusion they relied upon the judgment of the Supreme Court in the case of Mackinnon Mackenzie (supra). That was the
case of missing seaman employed as a deck-hand. There was nothing on record to show that the man was in fact dead, that the death, if any, was
not caused in the course of the employment, that in any event the death could not be said to have been caused by an accident which arose out of
employment and that the probabilities were more consistent with a suicidal death than with an accidental death. On facts and evidence of that case,
the learned trial Judge held that the applicant failed to prove that the deceased died or that his death was due to an accident arising out of his
employment, which was challenged in appeal before the High Court. The High Court allowed the appeal and reversed the judgment of the learned
trial Judge and granted the application for compensation. That judgment of the High Court was challenged before the Supreme Court in appeal by
special leave. The Supreme Court held that the trial Judge did not commit any error in law in reaching the conclusion and the High Court was not
justified in reversing it and, therefore, allowed the appeal and set aside the judgment of the High Court.
Thus, the facts stated above are totally different. In that case before the Supreme Court, there was no evidence either regarding the death of the
workman or the death of the workman due to an accident arising out of his employment. In the present case, there is voluminous evidence, which
has been discussed above, regarding the death and also regarding the death which took place due to accident arising out of the employment.
Therefore, the submission made by Mr. Thaker cannot be accepted. In fact, in Mackenzie''s case 1969 ACJ 422 , the Supreme Court has
observed as under:
To come within the Act the injury by accident must arise both out of and in the course of employment. The words ''in the course of the
employment'' mean ''in the course of the work which the workman is employed to do and which is incidental to it''. The words ''arising out of
employment'' are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the
service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. There
must be a causal relationship between the accident and the employment. If the accident had occurred on account of a risk which is an incident of
the employment, the claim for compensation must succeed, unless, of course, the workman has exposed himself to an added peril by his own
imprudent act.
In that case the Supreme Court has further observed that:
In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as
in the course of employment. But this does not mean that a workman who comes to Court for relief must necessarily prove it by direct evidence. It
may be inferred when the facts proved justify the inference. On the one hand, the Commissioner must not surmise, conjecture or guess, on the
other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is, of course, impossible to lay down any rule
as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to
draw it.
It is very strange that though the learned Judge has referred to and also discussed the aforesaid two judgments of this Court as well as Bombay
High Court in his judgment and also discussed the judgment of Allahabad High Court in para 18 of his judgment, he found that deceased Ahemad
Khan died in communal riots. He was not beaten by any employee of the mill and he was not died inside the mill, but he died on the public road.
Therefore, he came to the conclusion that it cannot be said that Ahemad Khan died in the course of his employment, and on this he rejected the
application. Unfortunately, though the present case is squarely covered by two aforesaid judgments of this Court as well as Bombay High Court,
the learned Judge has not relied upon the same and thus committed an error in dismissing the application for compensation of the applicants-
appellants. Therefore, the impugned judgment and order passed by the learned Judge has to be set aside.
In view of the above discussion, this appeal is allowed. The impugned judgment and order passed by the Trial Court is set aside. E.S.I.
Application No. 45 of 1990 filed by the applicants-appellants before the Employees'' Insurance Court at Ahmedabad is allowed. The applicants-
appellants are declared to be entitled for the dependency benefits under the Employees'' State Insurance Act and the respondent- Corporation
shall make the payment to the appellants accordingly, within three months from the date of the receipt of this order. There shall be no order as to
costs.
Copy of this writ to be sent to the respondent-Corporation forthwith.