Managing Director, SFC and Another vs Saif Din and Others

B.A. Khan, J.—Respondents were awarded compensation of Rs. 6,33,860/- by award dated September 19,1994, passed by the

Commissioner under the Workmen's Compensation Act. This appealis directed against the award and hangs on a very thin thread, raising a border

line case and literally a touch and go affair. All that remains to be seen is whether the injury was caused to the workmen by an accident ""arising out

of and in the course of their employment"" within the meaning of Section 3 of the Workmen's Compensation Act.

The crucial facts are not disputed and it is the common ground that six workmen originally hailing from tehsil Billawar were engaged for

cutting/sawing and carriage of scants in compartment 56 Basantgarh, Udhampur. They were washed away by floods in a nallah on September 25,

1988. Four of them died and two survived who were disabled. All the six were living in sheds within the compartment 56 and drawing rations

provided by their employer.

There are conflicting versions of how it all happened. The claimants maintain that they were going towards their place of work in compartment

56 when they were washed away while crossing the nallah. The other is that they were going towards their residence, which is not specified.

The evidence on record also conceals more than it reveals. There is no clue of the total area covered by compartment 56 and whether the place

of accident was within that area. Some stray statements made by the witnesses indicate that the compartment area was 5/6 kms. and the place of

accident was at a distance of 1/2 kms to 6 kms from the place of work.

It is in this backdrop that the Trial Commissioner found thus :--

The witnesses of the applicant have stated that the injured and the deceased were coming from their sheds (deras) to the place of work for

working, whereas all the witnesses of the non-applicants have stated that because of rains and no work, they were coming to their homes from the

place of work when they met with the accident. Whether they were going to their homes from the place of work or whether they were coming to

the place of work is not important. The point is that they were there in compartment 56 in the forest Basantgarh range in connection with the work

of chiran of the non-applicants! There is definitely a nexus between the accident and their employment. They were going from the place of work or

coining to the place of work proves this nexus. Had they not been in the forest Basantgarh range in connection with their employment, they would

not have got injured and some of them died due to landslide. It is, therefore, proved that Saif Din and Mohd. Hafiz applicants received grievous

personal injuries and Mohd. Salim, Gian Chand, Alla Din and Gh. Rasool died due to accident ""arising out of and in the course of their

employment.

Appellants assail the award on the plea that the workmen were not caught in an accident ""arising out of and in the course of their employment"".

Therefore, all that remains to be seen is whether they had met their fate in an accident arising out of and in the course of their employment.

The point in issue is no longer a virgin field and the two expressions have received attention and interpretation from time to time. It was initially

settled that the employment of a workman would begin and end with his place of employment. A journey from and to the place of employment was

not treated to be the part of employment. But then exceptions were carved out and a liberal interpretation given to the all important expressions

tobring within its fold cases by applying the doctrine of reasonable and notional extension and ""reasonably incidental"".

The first expression ""arising out of employment"" was interpreted to mean that the injury had its origin in the employment and would fit the bill

even if it resulted from some risk incidental to the duty or service. Similarly, the other expression ""in the course of employment"" was also given a

liberal interpretation keeping in regard the beneficial nature of the legislation and it was construed to include doing something which was reasonably

incidental to employee's employment. This is how the doctrine of reasonable notional extension was evolved to broad-base the scope for award of

compensation and to include cases of the workman's means of access and egress to and from the place of employment.

A number of tests were suggested and laid in the process. These included (i) whether a workman was within the sphere of his employment at the

time of accident, (ii) whether there was a nexus between the accident and his employment, (iii) whether the accident had its origin in the

employment and was caused in the employment, and (iv) whether the workman was at the place where the accident occurred by virtue of his

status as a workman or as a member of public and whether he was in a place in which other persons would have no right to be and in which he

himself would have no right to be but for the work on which he was employed.

The first signs of this evolutionary process are traceable in a landmark judgment in Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and

Others, wherein Imam, J. dealt with the concept thus at p 251:--

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. It is now well settled, however, that this is subject

to theory of notional extension of the employer's premises so as to include an area which the workman passes and re-passes in going to and in

leaving the actual place of work. There may be reasonable extension in both time and place and workman may be regarded as in the course of his

employment, even though, he had not reached or had left his employer's premises. The 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 a workman, keeping in view at

all times this theory of notional extension.

This was reiterated in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes, as under at p.622

Under Section 3(1), the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question

when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment

does not necessarily end when the ""down tool"" signal is given or the workman leaves the actual workshop where he is working. There is a notional

extension at both the entry and the exit by time and speed The scope of such extension mustnecessarily depend on the circumstances of a given

case.

This should have clinched the issue depending upon whether the doctrine of notional extension could be applied to the present case. But

learned counsel for appellants Mr. Bhardwaj would not give in. He came out with a trump card by citing the latest judgment of the Supreme Court

in Regional Director, E.S.I. Corporation and another Vs. Francis De Costa and another, in a bid to demolish the impugned award on the plea that

the workmen had met the accident away from their place of work and, therefore, it could not be said to be arising out of and in the course of their

employment.

In this judgment, the Apex Court dealt with the identical expressions ""arising out of and ""in the course of employment"" as occurring in Section

2(8) of the Employees' State Insurance Act of 1948 and the position enunciated requires to be extracted extensively (paras 6 and 8 of LLJ)

In our judgment, by using the words ""arising out of his employment"", the Legislature gave a restricted meaning to ""employment injury"". Injury must

be of such an extent as can be attributed to an accident or an occupation disease arising out of his employment. Of course, the phrase ""out of has

an exclusive meaning also. But in the context of Section 2(8), the words ""out of indicate that the injury must be caused by an accident which had its

origin in the employment. A mere road accident, while an employee is on his way to his place of employment cannot be said to have its origin in the

employment in the factory. The words ""accident arising out of his employment"" indicate that any accident which occurred while going to the place

of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the

accident and the employment"".

Dealing with the expression, ""in the course of his employment"", the Court observed:

The dictionary meaning of ""in the course of is ""during"", ""while doing"". The dictionary meaning indicates that the accident must take place within or

during the period of employment. If the employee's work shift begins at 4.30 p.m., any accident before that time will not be in the course of his

employment. The journey to the factory may have been undertaken for working at the factory at 4.30 p.m. But this journey was certainly not in the

course of employment. If employment begins from the moment the employee sets out from his house for the factory, then even if the employee

stumbles and falls down at the doorstep of his house, the accident will have to be treated as to have taken place in the course of his employment.

This interpretation leads to absurdity and has to be avoided. Construing the meaning of the phrase ""in the course of his employment"", it was noted

by Lord Denning that the meaning of the phrase has gradually been widened over the last 30 years to include doing something which was

reasonably incidental to the employee's employment. The test of ""reasonably incidental"" was applied in a large number of English decisions. But

Lord Denning pointed out that in all those cases, the workman was at the premises where he or she worked and was injured while a visit to the

canteen or other place for a break. Lord Denning, however, cautioned that words ""reasonably incidental"" should be read in that context and should

be limited to the cases of that kind.

Reading between the lines, it does not seem to me that the Apex Court had made any radical departure in this judgment from the legal position

enunciated earlier. The tests suggested remain to be the same like whether the accident had its origin in the employment and whether there was a

causal connection between it and the employment and whether the workmen were doing something which was reasonably incidental to their

employment apart from whether the accident occurred within the ""premises"".

Therefore, it is back to square one and it all depends upon the facts and circumstances of each case. Even as the evidence in the present case

is somewhat hazy, it does not present any difficulty in applying the settled principles.

Applying all this to the case, it firstly requires to be borne in mind that the workmen were working away from their homes in a forest and not in

any factory premises to invite Lord Denning's restrictive application of the doctrine of ""reasonably incidental"". They were engaged through the

Forest contractor for cutting/sawing and carriage of scants in compartment 56 and were provided sheds for living and a ration depot to draw their

ration and other necessities within the forest. As such, their sphere of employment extended to the whole forest area comprising compartment 56

including the nallah which they were crossing when they were washed away. There is nothing to show that this nallah was outside the forest area of

Basantgarh range or that the workmen were going out of the boundaries of the compartment 56 to reach their homes in Billawar. The exact place

of work/or of operations becomes irrelevant because it would shift from place to place in the forest. Therefore, the whole forest area would be

their place of work including the nallah which disabled them or took away their lives. It would be their ""premises of employment"" and passing

through and re-passing through it would surely be incidental to their employment. In that view of the matter, the accident satisfies the twin test. It

had its origin in the employment and a causal connection too. That is all what was needed to constitute a basis for award of compensation u/s 3(1)

of the Workmen's Compensation Act.

In the result, I hold that the workmen had received the injury in an accident both ""arising out of and in the course of employment"" within the

meaning of Section 3 of Workmen's Compensation Act. The award of the Commissioner is both valid and justified.

This appeal accordingly fails and is dismissed. The amount deposited with the Commissioner is ordered to be released to the complainants on

their being identified by the counsel and in presence of Deputy Commissioner, Udhampur. The concerned Commissioner to take steps accordingly

to ensure compliance.