Orissa High Court
Steel Authority Of India Ltd., Rourkela ... vs Smt. Jema on 8 September, 1999
Equivalent citations: (2000)IIILLJ680ORI
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The Employer, the Steel Authority of India Ltd., has filed this appeal under Section 30 of the Workmen's Compensation Act (In short, the "Act") against the decision of the Workmen's Compensation Commissioner, Rourkela (in short, the "Commissioner") awarding a sum of Rs. 58,480/- to the claimant-respondent the widow of late Madhusudan, who is alleged to have expired in an accident arising out of and in course of his employment under the present appellant.
2. The accident occurred on April 7, 1990. The deceased was admittedly employed as a Crane Operator in the Central Store of the appellant. On April 7, 1990, he was in general shift duty from 8.00 a.m. to 5.00 p.m. with lunch break of one hour between, 1.00 p.m. to 2.00 p. m. It is alleged by the claimant that during lunch break the deceased was coming to the house for lunch on his cycle and met with an accident on the way being dashed by a scooterist as a result of which he sustained head injury and was removed to the hospital and succumbed to the injuries in the hospital a few days thereafter.
3. The Employer-appellant in written statement had contended that the deceased had left the place of work even before 1.00 p. m. and it cannot be said that the accident occurred in course of his employment. It was further contended that since the deceased had gone out of the place of work and met with an accident, there was no causal connection between the employment and the accident and the accident did not arise out of the employment of the deceased.
4. The Commissioner found that the deceased had left the premises at 1.00 p. m. and was proceeding to his home for purpose of taking lunch and met with the accident on the way. It was, therefore, concluded relying upon the tripartite settlement (Ext.D) that the accident arose out of and in course of employment and as such, the claimant was entitled to compensation.
5. In view of the provisions contained in Section 3 of the Act, which has been interpreted in several decisions of the Supreme Court, there cannot be any dispute that the order to succeed, the workman/claimant has to prove that the accident arose out of and in course of employment. The learned counsel for the appellant has placed strong reliance upon the decision of the Supreme Court, reported in Regional Director, E.S.I. Corporation v. Francis De Costa. AIR 1997 SC 432 : 1996 (6) SCC 1 : 1997-I-LLJ-34. Though the aforesaid case related to interpretation of relevant provisions of the Employees' State Insurance Act, 1948, there is no dispute that the provisions contained in the said Act are similar to the provisions contained in the Workmen's Compensation Act. In the aforesaid case, the claimant had suffered a personal injury while he was proceeding to his place of work on his own bicycle. Repelling the finding of the High Court to the effect that the accident arose out of and in course of employment, it was observed at para 29, of LLJ:
".... In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a causal connection with the employment, and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any causal connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment."
Though there cannot be any quarrel over the principle recognised in the aforesaid decision, the present case has to be decided on the basis of facts and circumstances available on record.
6. There is no dispute that under Ext. D, a tripartite settlement, some settlement had been effected between the Steel Authority of India and its employees. The main terms of the settlement are available in Ext. B which purports to be "Personnel Policy Circular No. 423, dated February 10, 1984". Clause 1 of the sa'id circular is as follows:
"In pursuance of the Memorandum of Settlement dated June 1, 1983 between the Management of Rourkela Steel Plant and the Rourkela Mazdoor Sabha (Recognised Union), the Workmen's Compensation benefit will be extended to the employees of Rourkela Steel Plant meeting with accident resulting in injury during journey from the residence to place of work and back within one hour of the start or end of their duty hours causing death or permanent/temporary disablement, provided that the accident takes place on the normal route of journey between residence and the place of work."
The aforesaid Circular also contains certain exceptions which are not relevant for the purpose of the present case and as such need not be noticed. Ext. C, a Circular dated June 30, 1975, prescribes the office timings for various shifts including General Shift and it also envisages that the rest interval for General Shift will be from 1.00 p.m. to 2.00 p.m. It is in evidence that during lunch hour the employees working in General Shift were permitted to go to their residence for the purpose of taking food even though they had also the option of taking such food inside the canteen.
7. In the decision reported in 1997-I-LLJ-34 (supra), the Supreme Court had observed at para 14, p. 40:
"14. .... The test of what was reasonably incidental to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his work place in the usual course of his employment. Latham, C. J., in South Maitland Railways Proprietary Limited v. James, 67 CLR. 496, observed that when the workmen on a hot day in course of their employment had to go for a short time to get some cool water to drink to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water....".
The case in hand can be considered to be similar to the aforesaid decision of LATHAM, C. J, In the present case instead of going to get some cool water to drink to enable him to continue the work, the employee had gone out for the purpose of taking lunch without which he could not have otherwise continued.
8. According to the case of the claimant, the deceased met with the accident after 1.00 p.m. while he was returning to his house for the purpose of taking food. The counsel for the appellant has disputed this by drawing attention to some entries in the Ispat General Hospital relating to the time of accident which is stated to be 12.45 p.m. The Commissioner, however, on reference to other evidence on record has come to a conclusion that the accident had taken place after 1.00 p.m. during lunch break. The fact remains that the deceased had purported to go out for the purpose of taking his lunch. It is not the case of the appellant, nor is there any material to show that the deceased was not going on the normal route. It is also apparent from the evidence on record that the accident had occurred on the road belonging to the appellant. The conclusion which has been drawn by the Commissioner on the basis of evidence on record appears to be a possible view not available to be challenged in an appeal under Section 30 of the Act even though the appellate Court may be inclined to take a different view of the evidence on record. The finding is based on discussion of relevant evidence on record and by no stretch of imagination can be characterized as perverse.
9. From the finding of the Commissioner, it is apparent that the deceased had gone out during lunch hour and while he was proceeding towards his house, he met with the accident. The provisions contained in the Circular are definitely applicable to the employees of the Steel Authority of India. In the decision of the Supreme Court reported in 1997-I-LLJ-34 (SC) (supra), there was no such corresponding circular governing the employees in that case. As observed by the Supreme Court in the decision reported in Mackinnon Mackenzie and Company Private Ltd, v. Ibrahim Mohommad Issak, AIR 1970 SC 1906 : 1969 (2) SCC 607 : 1970-I-LLJ-16 at Para 5, p. 19 of LLJ:
"5. .... 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 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 the decision of the Supreme Court reported in Saurashtra Salt Manufacturing Company v. Bai Valu Raja AIR 1958 SC 881 : 1958-II-LLJ-249 which had been expressly followed by the Supreme Court in the decision reported in 1997-I-LLJ-34 (supra) at para 13 p. 39 it had been indicated:
".....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 the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a 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 the employment of a workman, keeping in view at all times this theory of notional extension ....."
In the decision reported in General Manager, B. E. S. T. Undertaking. Bombay v. Mrs. Agnes AIR 1964 SC 193 : 1963-II-LLJ-615 it as observed at p. 622 of LLJ:
"..... The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Court has 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 is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily, depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and agrees to and from the place of employment....."
From a reading of the aforesaid decisions of the Supreme Court, there is no room for doubt that there can be notional extension of the concept relating to "in course of employment" even when the employee had not reached or had left his employer's premises. The Circular issued by the appellant is only a recognition of such principle under which there is notional extension of the employment. Therefore, applying the principles recognised in the aforesaid decisions of the Supreme Court and applying the Circular (Ext. B) can be said that the accident was "in course of employment" of the deceased.
10. The question also arises as to whether the accident arose out of the employment. Applying the principles recognised by some of the decisions of our Courts as well as Courts in Great Britain, in the peculiar facts and circumstances of the present case, it can be said that the accident arose out of the employment. The most appropriate decision is that of the Bombay High Court reported in Bhagubai v. Central Railway, Bombay (supra). That was a case where the workman was killed while he was on his way to place of work. There was no evidence to show that the murder was due to motive against the deceased workman. The deceased was employed by the Central Railway at Kurla Railway Station and he lived in the railway quarters adjoining the railway station and while on his way, he was stabbed by some unknown culprits. Chief Justice CHAGLA, while emphasising that there must be a causal connection between the accident and death before it could be said that the accident arose out of employment, found in favour of the employee and upheld the claim for payment of compensation. It is worthwhile to notice that the aforesaid Division Bench decision of the Bombay High Court has been cited with approval in many subsequent decisions of the Supreme Court. As a matter of fact, in the decision, reported in 1997-I-LLJ-34 (supra), the aforesaid Division Bench decision was merely sought to be distinguished. But the principle laid down was not disapproved. The accident in the said Bombay case was considered by the Supreme Court to be an "occupational hazard" of the employee.
11. In HALSBURVS LAWS OF ENGLAND (Vol. 34, page 837), the term "arise out of employment" has been explained thus:
"Injuries directly due to the operation of natural forces for example, stroke of lightning do not arise out of the employment unless by reason of his employment workman was specially exposed to such risk. Where, however, the injury is directly due to street or locality risk, the fact that the risk itself arose from the operation of natural force is immaterial and it is not necessary to prove special exposure to such risks."
12. In the present case, the deceased had left his place of work for the purpose of taking lunch and the accident had taken place on a road which was, though within the factory premises, being maintained by the Steel Authority of India. Of course, it was accessible to other members of the public, but it was also meant to be used by the employees of the Steel Plant for the purpose of their ingress and egress from the factory premises. Since the road was also accessible to members of the public, definitely there was some possibility of accident being caused by them and this risk can be said to be incidental to the employment of the employee. Thus, it can be visualised that there was a causal connection between the employment and the accident. Moreover, in view of the principle contained in the Circular which has received judicial recognition of this Court in the decision reported in Steel Authority of India Ltd. Rourkela v. Kanchanbala Mohanty, 1994-II-LLJ-1167 (Ori) it can be held that not only the accident was in course of employment, it also arose out of employment. There was sufficient causal connection between the employment and the accident.
13. The counsel for the appellant has contended that the workman by going out before 1.00 p.m. has violated the condition and as such in view of Section 3(1)(b)(ii) of the Workmen's Compensation Act, the claimant cannot claim any compensation. Apart from the fact that there is some dispute as to whether the deceased had, in fact, gone after 1.00 p.m. or before 1.00 p.m., and even assuming that he had gone before 1.00 p.m., the provisions contained in Section 3(1)(b)(ii) of the Act are not at all applicable. Even assuming that the employee in violation had gone out before time, it cannot be said that he had violated any condition laid down for the purpose of safety of the workmen. As such, Section 3(1)(b)(ii) can have no application.
14. For the aforesaid reasons, I am unable to accept the contentions of the appellant. The Misc. Appeal is accordingly dismissed. There will be no order as to costs.