Womens Compensation Act

[Cites 145, Cited by 0]

Law Commission Report

Womens Compensation Act

LAW COMMISSION OF INDIA

SIXTY-SECOND REPORT

THE WORKMEN'S COMPENSATION
ACT, 1923

October, 1974

I 8 M o1'Lawf?4»-«1

Chapter

1.
1A.

1B.

10.

CONTENTS

Introduction
Hietory :md .-'vlain Features

Section 1 and E.v<ir:1-Tr.-rritaw-ial Application of the Act.
Deﬁnitions.

Right to Cmnpensation .
Computation of Compensation . . . .

Distribution of Compensation. . . . .
Notices and Reports

Protection of Cznnipensation and other Provisions Regarding

Enforcameait

Cornmiasirmers. their Jurisdiction and Procedure.

Reference, Registration ofAgrc'::n21t;, Apgea'. a'1.l Rec:wer_-.«'
Rules.

Schedules

D.O. No. F. 2(7)/73-LC.
P. B. Gajendragadkar

'A' Wing, 7th Floor,
Shastri Bhavran,

New Delhi~1

October 15, 1974

My Dear Minister,

I have great pleasure in forwarding herewith the 62nd
Report of the Commission on the Worl<men's Compensa-
tion Act, 1923. The circumstances in which the subject
was undertaken for study are dealt with in the opening
paragraph of the Report.

Having regard to the nature of the subject and its
importance, the Commission first made a preliminary study
of the subject, and framed a Questionnaire in order t.o
elicit views. This Questionnaire was sent to the Ministries
concerned, the State Governments, the High Courts, Bar
Associations, and other interested persons and bodies,
including associations of employers and workmen. The
replies received in response to this Questionnaire were
then duly considered by the Commission, and a draft
Report on the subject was prepared by the Member-
Secretary, Shri Bakshi, and discussed by the Commission
at length. After discussion, the Report was ﬁnalised.

However, the ﬁnal draft, as approved, was being
typed and the typing work could not be completed
before the lst of October, 1974, when the Commission
was re--c:onstituted with the addition of Mr. B. C. Mitra.
That is why, Mr. Mitra has not signed the Report.

Incidentally, I may mention that this Report is the
first Report of the present Commission since its reconsti-
tution.

With warm personal regards,

Yours Sincerely,
Sdf"
(P. B. Gajendragadlnar)

Hon'ble

Shri H. R. Gokhale,

Minister of Law, Justice & Company Affairs,
Government of India,

New Delhi.

Encl. : As above.

CHAPTER 1
INTRODUCTION

1.1. Revision of the Workmen's Compensation Act has been
taken up by the Law Commission on a reference from the Gov-
ernment. Before we took up this subject, we had, of our own.
taken up the question of extension of the Act to emp_loyment_1n
agriculture, and prepared a draft Report on that subiect, Which
we had circulated for comments. In the meantime, at the re-
quest of the Government, the entire Act has been taken up for
revision.

1.2. It is not disputed that the Act is one of the most im-
portant legislative measures of socio-economic justice.

It is an oft-repeated slogan: "The cost of the product should
bear the blood of the worlcman.1"

This objective may not have been realised fully. But it gives
us, in striking language, a clue to the governing principle of the
Act, and its socio-economic importance.

it is well-known that since the adoption of the Constitution.
our country has been committed to justice----social, economic and
political, and that has introduced radical change in outlook.
This radical change is reﬂected in the directive principles in the
Constitution to which we shall presently refer.

1.3. Under the Constitution, it is the duty of the State to
promote the welfare of the people by securing and protecting,
as effectively as it ma , a social order in which justice, social,
economic and political}: shall inform all the institutions of the
national life.'-' It cannot be denied that legislation in favour of

the economically weaker elements creates formal inequality in

order to establish economic equality."

ln another directive principle', the Constitution provides that
the State shall endeavour "to secure by suitable legislation. . . . .
to all workers, agricultural industrial or otherwise . . . . .. mandi-
riom of work ensuring a decent standard of life. . . ."

_ 1.4. It is hardly necessary to emphasise the need for revi-
sion of the Act. There have been far--reaching developments in
the field of social security and industrial relations in India since

1. See Pmsser. Torts (2nd ed. 1956), page 333, n. 95, ' 'C'

2. Article 38 of the Constitution.

3. See para 1.9, 1'/rfm.

'. Article 43 ofthe Constitution.

Genesis.

Importance
of the Act.

Directive
principles
In t.'1c C ons-
tilution.

Neacl tor
reviuior. of
the Act.

Report of
the Natio-
nal Com-
mission on
Labour.

Number of

agricultural
crnployces.

the Act was passed, and it is obviously desirable that this bene-
ﬁcial piece of social legislation should be reviewed in the con-
text of those developments. The Directive Principles in the
Constitutioni, to which we have brieﬂy referred2, also lay cm-
phasisgin particular, on the need to protect the health and
strength of Workers, the need to make effective provision for
public assistance in cases of unemployment, sickness and disable-
ment, and on endeavours to secure to all workers decent condi-
tions of work and on ensuring a decent standard of life. it is
not often realised that the provision for dependants in the Work-
men's Compensation Act is specially intended to avoid want
and penury, and is of direct relevance with reference to these
directive principles.

The concept of equality, which is one of the basic principles
of the Constitution, has also provided inspiration for a revision
of provisions resting on discrimination.

1.5. Apart from this, it may be noted that even before the
Constitution, signiﬁcant developments took place. India took
a big step in 1943 towards social security for industrial em-
ployees, when the Employees' State Insurance Act was passed.
Some of the provisions of that Act are of an enlightened nature,
and naturally suggest the desirability of exploring the possibility
of their being adopted in the Workmen's Compensation Act.

1.6. It should be noted that the National Coinrriission on
Labour, in its Report forwarded to the Government a few years
ago, made several important recommendations for amending the
Act?

1.7. In this connection, mention should also be made of
agricultural employees. According to the Report o:E'the Census
of India, 19714, the total number of workers in India is
180,949,809. Out of this, the number in rural areas is
148,998,809. The following are the numbers of. workers em-
ployed in various activities in the rural and urban areas:---

Activities Rural Urban

(a) Cultivators 76,544,432 1,632,275
(bl Agricultural Labourers . . . 45,569,979 1,919,404
(c) Live-stock, forestry. ﬁshing, hunting and

plantations, Orchards and Allied Activities . 3,758,642 558.159

i. Articles 33, s9(e), 41 and 43 of mi: Constitution.

5'. Para 1.3, supra. '

3. Report of the National Commission on Labour, (1969), pages 165. cf
seq.

4. Economic characteristics of Population (Selected Tables, series 1 -- India),
Census Paper 3 of 1972, pages 2--4.

on,

Activities Rural Urban

(d) Mining and Quarrying . . . . 510L903 37-0:355
(6) Manufacturing processing, servicing and

repairs . . . . . . 3,154,340 S-903-679'

(f) Construction . . . . . . 1,035,030 1-"'3»353

(8) Trade and Commerce. . . . . 3,533,301 5~4'4»9"J'2'

(h) Transport, storage and Communications . 1,210,059 3.«19U3-7-

(1) Other Services . . . .. . - 7,305.3" 7.960.131

We quote these ﬁgures to show the importance of considering
the question of application of the Act to persons employed 1n agri-
culture.

1.8., It is, therefore, in the ﬁtness of things that' in the year Need for
which rnarlcs the scrni--centenary of the Act, an opportunity has ,c,,i5io,,_
arisen to undertake a comprehensive review of the Act.

No wholesale review of the Act has taken place since the
Report of the Royal Commission on Indian Labour. Important
recommendations made by the National Cornrnission on Labour1
have not found their way to the statute book. Practical experi-
ence of the working of the Act, as revealed by judicial decisions
and otherwise, has brought out certain diﬁiculties. That aparf.
far--reaching developments in the industrial ﬁeld have tal-:e;1
place, as already pointed out. Notions of social justice have also
undergone radical change.

1.9. With 'reference to legislation in favour of the weaker Equalisatiorl
sections, 1t has been stated" that:---- in ,,,,b,m,_1_.;e,

"Justice at least is done in this way in the shape of
cqualisation, the breach in the idea of abstract and
uniform equality serving to level the sharp points of
social differences."

"By social lgislation in favour of workers, tenants and
lodgers, as also of agriculture, the legislator is doing
a work of equalisation, which is to improve the lot
and prospects of the less fortunate classes. But
that is exactly what constitutes the essence of the
so--called social freedom. Constitutional rights can
no longer remain mere landmarks between the State
and the individual."

1. Report of the National Commission on Latsour. See para 1,6, _«.-r;pm_

5. Fritz Cygi, 'The Rule of Law in the Contcrnporary Wzlfare State', (I963;
V01. 4, Journal of the International Commission of' Jurjsts, No_ 1, gag;-,
3, at pages 8 and 9.

Social insu-
rance.

Elfeet of
Employees'
State Insu-
rance Act.

D6.sirabi1i-
ty oi amen-
ding.
Simpliﬁ-

cation of
languug E.

1.10. in fact, the idea of social security has been carried
much further by the scheme of compulsory insurance introduced
by the Employees State Insurance Act', but we are not concerned
with that Act at the moment. What we should emphasise is
the essential connection of the Workmen's Compensation Act
with social security and social insurance.

1.11. After the passing of the Employees' State Insurance
Actﬂ, the area of application of the Workmcn's Compensation
Act has diminished, to a certain extent. But the Er.-rpioyecs'
State Insurance Act applies only to (if) factories, and iii) noti-
ﬁed establishments, and in the rest of the cases the Workmen's
Compensation Act still holds the tielo.

1.12. We would at this stage also like to quote what was
stated in a recent study" dealing with personal injuries:----

"The rate at which social institutions and ideas are being
turned upside down is not merely dramat-.ic--~--it is
accelerating; every year in a fashion which -"lemands
a great deal of mental energy to keep pace. It can-
not be good enough, therefore, to adjust merely to
the contemporary needs. Some deliberate attention
should be given to the foreseeable demands of the
years immediately ahead. And if there may seem
to be a weight of tradition against change. at least
it is worth remembering that the apparent heresies
of one generation become the orthodexies of the
next. The ultimate validity of any social measure
will depend not upon its antecedents, but upon its
current and future utility."

1.13. There is, therefore, considerable justification for undcr--
taking a study in depth of the Act and for considering what
amendments of the law are needed.

1.14. There is another aspect which is of special importance
in connection gvith legislation intended for the common man,
like the Workmen's Compensation Act. In such legislation the
expression of the law should be as simple as possible,---~of course
consisteiitly with that precision which is expected of every legal
writing, whether legislative or otherwise. Some of the provisions
0f Eh"? ACT are unsatisfactory. because the degree of detail, cla-
boration and complexity renders them unintelligible to those for

'I. Section 53. E?-luloyccs' State Insurance Act. I948. passed as a result 0;'

lgrofessor B. 'P. Ailarknr, on Health Insurance for Ind ustriul

5. Lmployces' State lnstisance Act, 1943.

". Wecdhousc Commission--Rcp:~.ri on ennipemation for personal lnjurv
_i1fl°W 79°'-'~iil"'l 19593» Para 33-, cittd in note on Comrensation for persons; I
u'uur'_.u' (£969) 20 l.C.L.Q 19], 196.

whom they are intended, and some others have become obsoles-
cent. In general, while the Act concentrates mainly on matters
of detail, in some respects it fails to deal adequately with the
essential ideas.

1.15. Before closing this Chapter, we may state that the sub- Matter in
ject-matter of the Act falls within the Concurrent List and Par- thf C0=_'fl"*
lianlent is, therefore, competent to deal with it.' """t L""-

I. Concu:re:1l I ist, entry 24.

introduc-
tion

History of
compensa-
tion_

History of

CHAPTER IA

HISTORY AND MAIN FEATURES

lA.1. A few observations about the history of the Act and
its main features may now be appropriate. We shall, for this
purpose, take a general view of the compensation law. We shall
then examine the sources of this branch of the law, and its
signiﬁcant features. Sometimes, reference will be made to legis-
lation in other common law ittrisdictions.

1A.2. Speaking historically, the concept of compensation has
gone through several stages:

(1) At some remote period, well before the Twelve
Tables, the inﬂiction of an injury led to attempts to
exact vengeance either by the person injured or by
his kin;

Tn course of time, custom began to impose limits
upon the extent beyond which vengeance might not
be so exacted.

At a still later stage, the State itself, i.l1 the form of
some central authority, began to regulate the exac-
tion of revenge in the form of imposition of punish-
merit.

So, far the concept of vengeance was prominent.
Ultimately, the stage is reached in which elements of
revenge have disappeared, and the principle is estab-
lished throughout the law that for every injury cm-ii-
pertratioii Shanta' be paid.

But this liability for compensation is. in general. still based
on fault.

The next stage could be the one where compensation
is payable without fault. The law is moving in this
direction, but the movement covers only certain ﬁelds
of activities for the present. The Act is concerned
with one of them.

IA.3. The workme-n's compensation system was the result

(2)

(3)

(4)

(5)

workmen'; of growing dissatisfaction with the common law procedures and

compensa-
tron.

employees' liability laws formerly applying to cases of work
lI1jl.1I'l.eS.1 Under the common--law procedure, the employee
who was injured on his job got little or nothing in re-
compense. To recover damages against his employer: he had
to ﬁle a suit and prove that the injury was due to the employer's

1. ass; basil." 70l_'--I:a_'r-it)-L'!-t', State Workmen's Cormmpeigationilaws:-.Biilletii1
No. 161 (1968 revision) page 3.

This was a costly, diliicult and long drawn--out pro-
the employer, even though he had been
negligent, could avail himself of three common law defences,
namely, assumption of risk (in other words. V0l£_?I'Il.t mm fit in.-
juria), fellow servant rule, and contributory negligence.

negligence.
eess. And, in addition,

1A.4. When, during t.he last century, the industrial employer
came to displace, the merchant and the craftsman as the pivot of
the economic system, not the least important among the adjust-
ments that were called for was the creation of legal niachmery
whereby the inevitable toll of human life and limb, caused by
large scale mechanical production and distribution, could be
equitably allocated between employer and employee} The pro-
cess by which the adjustment has been, and is being, made is,
in the main, a matter of legislation. The courts, guided by es-
tablished doctrines of the common law, found little that was satis-
factory. More signiﬁcant, in developing that which they found.
they were guided by economic ideals that were fast becoming
little more than convenient ﬁctions for rationalization."

"All these conditions (of master and servant)" said Bentham,-"*
"are a matter of contract. It belongs to the parties interested to
arrange them according to their own convenience." And such
was the social philosophy upon which courts erected the common-
law rules governing an employer's liability for industrial accidents.
Where the employer was personally at fault, recovery was easier.

lA.5. At common law, the doctrine of vicarious liability was
subject to a peculiar exception whereby an employer was not
vicariously liable to one servant for the negligence of another.
In England, this exception was known as the doctrine of com-
mon employment. In some other jurisdictions, it was known as
the fellow servant rule. It is generally traced to Priestley v.
Fowler,' and was ﬁrst clearly enunciated in the latter case of

Ha£c'7liiIS0n.5

The doctrine was based on a ﬁctitious implied term in the
contract of service to the effect that the servant agreed to run
the risks naturally incident to his employment, and that one of
these risks was that of harm due to the negligence of a {ellow-

Servant."

1, Lester Schoene, "Workmeirs 'Etna-mpensatioii --- Inter-S't_atem Railways' '

(1933-34) 47 Harvard Law Review 339.
=. [ester Schoene, "Wm-kmen's Com;iensatio.i-- Inter--State Railways"
(1933-34) 4? Harvtird Law Review 33.9.

3. lierithain, '_l'henry of Legislation (I-lildreth Tr.. 2nd ed. E87!) 199, quoted
in Lester .'sel-ioerie, ''Workmen's Compensation-- Inter-State Railways"
(1933-34) 47 Harvard Law Review 389.

4. Priestley v'. Fiiwlar, (I33?) 3 M & W I.
. Hafcldnson v. York, New Caste etc. My. C0. (1850) 5 Exeh. 343.

. Salmond, Torts (1965) page 668.

Adjustme-
nts ofthe
legal [mic-
hinliry, lie
cessitated
by industri-
al chaiigcs.

Problem of
industrial
disability-
First legis-
lation in
Europe.
Origin of
C0111pc:'l52t-
tion system
in l{uropc_
lirnbicm of
indu-;i rial
disability.

Develop-
rnentr. in
[Le L,'_F..A.

But it might be dilﬁcult for the workman to show that his
injury was due to the negligence of anyone at all or even to dis-
cover what its cause might have been. So the Workmen's Com-
pensation Act, 1897, adopted a new approach. The Act provid~
ed compensation for a workman injured in the course of his em-
ployment even though no negligence on the part of his employer
or anyone else could be shown. The basis of the workmen's
claim was not negligence or fault but accident.'-

Where injury was occasioned through the negligence of a
fellow servant? or resulted from one of the ordinary risks of the
employment,-3 it was said that the employee, having chosen to
encounter those dangers in return for a stipulated compensation,
could not be heard to complain.

1A.6. The purpose of workrnen's compensation laws was to
eliminate the hardships experienced under the common law sys-
tem, by providing prompt payment of beneﬁts--reg;ardless of fault
and with a minirnurn of legal formality.

1A_7. Disability or death caused by industrial employment is '

not a problem special to our country. On the contrary, these
"grim companions" of mass production, and the problems which
they raise, have been dealt with legislatively throughout Europe
and America since the latter part of the nineteenth century.
Germany, Austria and Norway had provided Workrnen's Com-
pensation legisiation for their industries between 1884 and 1894.
By 1903, most European countries had such a system in ellect.

1A.8. Workmcn's compensation laws in the U.S.A. had their
beginning in 1908, when the Federal Government passedan Act
covering certain civil employees.' State laws in the U.S.A. start-
ed in 1911, when Washington and Kansas both passed such laws
on March 14; both laws, however, had a later effective date.
The ﬁrst State to put an Act into effect was Wisconsin, whose
law was approved and became eﬁective the same day--May 3,
1911. Seven other States passed laws in 1911. and from then
onwards, there was rapid progress for several years.

In 1909, New York State and several other American States
appointed commissions to study" the problem. Peiinsylvania fol-
lowed suit in 1911. In 1915, article III, section XXI of the

1. Salmond, Torts (1965) page 669.

3. See Labatt, Master and Servant (2nd ed. 1913), Vol. 4, page 1393, cited
in Lester Schoene, ''Workmen's Compensation" etc. (1933-34), 47 Harvard
Law Review 389.

'. Labatt, Master & Servant (2nd ed. 1913), Vol. 3. page 1167, cited in Lester
Schoene, "Workme.1's Compensation" etc. (1933-34) 4? Harvard Law
Review 389.

. U.S. Dcptt. of Labour, State Workmen's Compensation Laws, Bulletin
No. 161 (1968 revision), page 1.

-u.--n--..

191-.-'

Constitution of Pennsylvania was amended' to permit such legis-
lation. In the same year, Pcnnsylvania's first Workmc-n's Com-
pensation Act was passed?

In 1920, all but six States in the U.S.A. had such laws ,and
the Federal Act for civil employees had been re-enacted in 1916.3
It was not until 1948 thatthe last State passed such an Act, and,
in the meantime, another Federal law had been passcd--the
Longahoreman's and Harber Workers' Compensation Act----which
was made applicable also, by a separate Act, to the District of
Columbia.

As has been stated by an American writer'--

"Since the compulsory retirement of the horse in favour
of steam power, industrial accidents hzne persistently
nibbled away at the stability of our modern economy.
These misfortunes impose upon us twin obligations.
The first is to the injured workman. in justice we
shouid alleviate the hardship of the labourer whose
body is broken or destroyed in producing for our
common well--being. The second obligation is to the
stability of our economy. For the comznon good we
must cushion the ﬁnancial impact of such misfortunes
on our industries."

1A.9. Similar considerations weighed with the Indian Legis-
lature in enacting the Worl<tnen's Compensation Act in 1923. As
pointed out by Dr. Panandiitar,-7 compensation schemes were not
unknown in India. But the worlmr was always at the mercy
of the employer. He could not claim compensation as a matter
of right. The compensation was paid only when the -sinpioyor,
out of his kind gesture, granted it. Dr. Hasan° tells us: "As
far back as 1884, workers in Bombay made a demand for com-
pensation in a petition to the GOVL".'.'T.']}f_'z'.t ii;-1"" India, bu: nothing
came out of it."

It appears that in 1920, the workers actually agitated, and
a number of strikes were organised in the country on this issue.

1. Act of June 2. 1'ZlI5, PL. 736, as arnendcd, PA. STAT, ANN, tit. 7''?!-
1056 (Pardon 1952).

'. See John M. Mclaughtin, "Double Standards in Workm:~n's Compen-
sation (1957) 30 Temple L.Q. 294.

5. U.S. Deptt. of Labour, State Workm::n's Ct3iﬁpCﬂSal.iDl1 I_:iws, Ballztin
NJ. 161, (1968 revision), page 1.

4. John Melaughtin, "Double Standards in Wor1;men's Compensation in
Pcnnaylvanin , (I957) 30 Temple L.C. 294.

5. Panandilrars Industrial Labour in India, cited by Vivelr Ranjan Bhntta-
charya, Social Security Measures in India (1970), page 75.

C. N. Hasan. Social Security System of India (1972), page 65.

7. Rai Choudhary, Social Security in India and Britain, page 34, cited by
'vi\'€k76Ranjan Bhattacharya, Social Security Pt-I-ensures in India (1970),
D389 -

M0vefr.e;1l
in lndia.

Bi of 1922

Amend-
ments since
1923.

Amend-
ment Act 0
I959.

1A.9A. In July 1921, the Government of India addressed the
local Governments on the desirability of introducing legislation
for the payment of workmcrfs compensation} This was done
after a detailed examination of the question by the Government
of India. The provisional views of the Government of India
were published for general information. The advisability of
legislation had been accepted by the great majority of local
Governments and of employers' and workers' associations, and
the Government of India believed that public opinion generally
was in favour of legislation?

In June, 1922, a committee was convened to consider the
question. This committee was composed, for the most part, of
members of the Imperial legislature. After considering the numer-
ous replies and opinions received by the Government of India,
the Committee was unanimously in favour of legislation,
and drew up detailed recommendations regarding the lines which,
in its opinion, such legislation should follow. The Bill presented
in 1922 followed these recommendations" closely. A number of
supplementary provisions were added where necessary, but practi-
cally no variations of importance were made.

1A.10. The Act has, since its enactment, been extensively
amended. Some of the amendments were necessitated by Inter-
national Labour Organisation Conventions,~--e.g. the amendment
of 1925. An extensive revision of the Act followed on the Re-
port of the Royal Commission on Labour (193l),--the amend-
ment of 1933. Constitutional changes made by the Government
of India Act. 1935 necessitated amendment of the Act in 1937.
Several amendments were made in 1939, 1942 and 1946, their
principal object being to widen the scope of the Act in one res-
pect or another:

The amendment Act 7 of 1959 enlarged the scope of the
Schedules I and II. For example, the number of occupational
diseases was increased from 12 to 15, and the number of in-
juries_ entitling the workman to partial disablement beneﬁts was
increased from 14 to 54. The Act also attempted to make the
procedure speedy. For example, the Amendment Act reduced
the 'waiting period' from 7 days to 3 days. It also removed the
difference between adults and minors in respect of payment of
certain beneﬁts.

F lA.1l. History of the Amendment Act of 1959 is interesting.
After independence, it was felt that the machinery established for
the assessment and payment of compensation was slow-moving,
and that the ﬁnal settlement took a lot of time. In order to

fix-r. Hesan, Sticialsecurity System. of India (1972), page 66.

*. Staternrrnt of Objects and Reasons annexed to the Bill of 19°22 dated 29th
August, 1922.

3. Statement of Objects and Reasons annexed to the 1922 Bill, dated 29th
August, 1922.

' ll

redress this situation. the Central Government in July 1949 ad-
dressed a letter to the State Governments inviting suggestions for
ensuring speedy settlement of claims. In the light of the sug-
gestions made, a memorandum showing the proposals for amend-
ing the Act was prepared. The memorandum was circulated in
July, 1953. Later on, a technical committee was appointed in
December, 1955 to suggest the amendment of the list of occu-
pational diseases. The Act of 1959 was passed after a conside-
ration of all this material. '

An amendment eﬁected in 1962 raised the wage limit of the
covered worﬁfnan from Rs. 400 to Rs. 500 per month.

1A.l2. In England, after the General Election of June, 1945
which brought the Labour Party into power, the worlcmen's Com-
pensation Act was replaced, by the National Insurance (Industrial
Injuries) Act of 1946.

In India also, after the passing of the Employees' State Insu-
rance Aet,1 the area covered by the Workmen's Compensation
Act has narrowed down to a certain extent. But, as already
pointed out," the Employees' State Insurance Act applies only
to (i) factories, and (ii) notiﬁed establishments, and, in the rest
of the_cases the Workmen's Compensation Act still holds the

ﬁeld.

1A.13. It would be of interest to refer to an analysis of the
trend of developments by Warren A. Seavey. He says3--

"In determining whether there is tort liability when harm
has been caused, the focal point of conflict has been whether
one should be liable for harm irrespective of fault. The law
has been in a state of flux in its desire to protect the two basic
interests of individuals»-the interest in security and the interest
in freedom of action. The protection of the ﬁrst requires that
every person who has been harmed as a result of the activity
of another should be compensated by the other irrespective of
his fault; the protection of the second requires that a person who
harms another should be required to compensate the other only
when his activity was intentionally wrongful or indicated an
undue lack of consideration for the interests of others. At any
given time and place the law is the resultant derived from the
competition hetween these two basic concepts."

1A.14. We shall now have a look at the operative provisions
of the Worlrmen's Compensation Act. Under the Act, if per-
sonal injury is caused to a workman by an accident arising out

1. Employees State Insurance Act, 1943.
'. Chapter 1, supra.

3. Warren A. Seavey, "Principles of Torts, (143), 56 Harv. Law Rev. 56-
72, reprinted in Selected Essays on Law of Torts (Harvard. 1959), page
2.

28 M of Law/74-2

Effect of

Employees'
State Insu-
rance Act.

Trend of
Develop-
rnerlls.

Gist of the
operative
provisions.

Chief prin-
ciples of
Workmen's
Compensa-
tion Act.

-JO\UIsuoun-

of, and, in the course of his employment, his employer shall
be liable to pay compensation irrespective of fault, in accordance
with the provisions of Chapter 2 of the Act} The expression
"workman" is deﬁned so as to include not all employees. but
only a limited class. The liability of the employer to pay com-
pensation is, under this provision, excluded in the case of cer-
tain minor injuries? and there is no liability for an injury caused
by an accident directly attributable to the workman being under
the inﬂuence of drink or drugs or to the wilful disobedience of
orders and rules by the workman, or to the wilful removal or
disregard by the workman of safety devices.3 Certain diseases
contracted in an employment are also regarded as "injuries
caused by accident",'* for the purpose of the Act. The liability
arising under the Act cannot be excluded by contract.

1A.l5. The chief principles of the Act can be reduced to
the following principles. These principles lay down its scope.
modify the common law, quantify the compensation or create an
alternative machinery :

(1) Scope of the industrial injur_v.----The compensable
injury is described as any personal injury occurring by
accident "arising out of, and in the course of, the
employment."5

(2) Scope of the employment to which the Act applr'e.s'.--

The Act is applicable to certain speciﬁed employ-

merits." Moreover, the beneﬁt can be claimed only

by a person falling within the deﬁnition of "workman".

These two principles lay down the scope of the Act.
- (' 3) Employcr'.r liability irrespective of jftmlt.-----'I'he employer

is (with limited exceptions) liable to pay compensa-
tion irrespective of fault.'

(4) Contracting out of the Act not pcrmissible.--~Thc Act
overrides any contract to the contrary.

These two principles modify the common law.

(5) Calculation of compensation.----Cornpensatic»n is, from.

the point of view of the workman, the most important

. Section 3(1), Workmen's Compensation Act.

. Section 3(1), proviso (a).

. Section 3(1), proviso (b).

. Section 3(2), section 3(2A), section 3(3) and section 3(4).
. Section 3(1).

. Section 2(I)(n), read with the Second Schedule.

. Section 3.

.15 _.. .L .1...

part of the Act.

The broad questions to be deter-
mined are---

(a) Nature of the injury, and its consequeuces1--
(i) Death;
(ii) Permanent total or partial disahlement; and
(iii) Temporary disablement.
(b) Amount of "wages".
(c) Whether compensation should be periodical or in
lump sum.

(6) Case of death.--Rights of dependants are dealt with.'
These two principles quantify the compensation in de-
tail.

(7) Machinery for speedy settlement3.--Since the scheme
of compensation is complicated, and usually involves
the determination of difficult questions of fact and
law, a machinery for speedy settlement is provided.

This last principle creates a machinery alternative to the
conventional courts.

A few detailed comments about some of these aspects may
be useful.

lA.1<3. The liability to pay compensation under the Act is
conﬁned to "personal injury",----an expression not deﬁned in the
Act. The injury must have been caused by "accident". This
expression is also not defined in the Act, though, as pointed out
above,' there is a special provision regarding certain diseases.
The accident must arise "out of and in the course of employ-
ment",----a phrase which, of necessity, must be interpreted in
the light of the facts in each case. If liability arises under the
Act,, compensation is payable by the "employer"--which ex-
pression is deﬁned5 in the Act. Lastly, the liability is owed
only to a 'workman',"--which is an important expression and
which is deﬁned in the Am," so as to include his dependants.

The injury must arise "out of and in the course of his em-
ployment". These words were used in England in the old Work-
men's Compensation Acts from 1897 to 1945. The self--same
words have been used in England in the Road Traﬁic Acts,
1930 to 1960. They have also been used in Employer's lia-
bility policies. This expression, is, perhaps, the most important
one in the Act.

. Cf: section 4.

. Section 2(l)(d) and section 8(5).

. Sections 19 to 30. '

. See supra.

. Section 2(l)(e).

. Section 2(1)(n), read with the Second Schedule.
. See infra.

qt
sldhugowsaal

Liability
conﬁned to
personal
Injury.

Impor tancc
of the deﬁ-
nition of
"workrnan"

lA.17. The deﬁnition of "workman".'- as given in the Act,
speciﬁcally excludes a person whose employment is of a casual
nature of that casual worker is employed otherwise than for the
purpose of the employer's trade or business. The deﬁnition
also excludes a person working in the capacity of a member of
the Armed Forces of the Union. Subject to these two important
exceptions, "workman". as deﬁned in the Act, means a person
who is----

(i) a railway servant as deﬁned in section 3 of the Indian
Railways Act, 1890, not permanently employed in any
'administrative, district or sub--divisional office of a rail-
way and not employed in any such capacity as is speci-
ﬁed in Schedule II, or

(ii) employed on monthly wages not exceeding ﬁve hundred
rupees in any such capacity as is speciﬁed in Schedule
II.

In order to determine the question whether a person is a
workman or not, one has necessarily to look to ( i) Schedule II,
(ii) capacity in which the person is employed [with a modiﬁcation
in case of railway servants falling under item (i)] and (iii) the
monthly wages [except in the case of railway servants falling under-
item (i) of the definition]

Persons drawing as wagss more than Rs. 500 a month
(unless they are railway servants} are T101 "workman". Persons
of this type were presumably regarded as qualified, by their edu-
cation and their means, to make provision for themselves.

Casual labourers who are not employed for the purposes of
the en1ployer's trade or business are not workmen. There are
obvious practical difficulties in including them.

Members of the armed forces are also excluded, because they
agree to se-rve'on the understanding that hazards are not
"accidents". (These persons may, however, be covered by
separate statutory or non--statutory provisions, if they sustain
injuries in the course of their duties).

In the case of railway workers, falling under item (i] of the
deﬁnition, the restriction as to the minimum amount 01:' wages
does not apply. The apparent assumption is that ( with the ex-
ception of persons "permanently employed" in the larger railway
o1'lices),2 all railway employees have to undergo a certain amount
of risk and there would be great diﬂiculty in making a distinction
between those working in the speciﬁed eapacity3 and those not
so working.

1. Section 2(l)(o).
'. This exception will be separately examined.
'. Second Schedule.

-9

1A.18. With reference to the deﬁnition' of "workman",
thus, the most important part of the Act is the Second Schedule,
which contains the list of persons who, subject to the provisions
of section 2(1) (11), are included in the deﬁnition of "workman".
It is to be noted that while railway servants of certain categories"
become workmen for the purpose of the Act irrespective of
their monthly wages, other employees become workmen only
if two conditions are satisﬁed; ﬁrst their monthly wages must
not exceed Rs. 500, and secondly, they must be._ employed in
any such capacity as is speciﬁed in the Second Schedule}

1A.l9. Thus, for understanding the scope of the Act, the
Second Schedule is very important. The Schedule itself is a
very long one, containing entries (i) to (xxxii).

lA.20. Some State Governments have availed themselves
of the power vested in them to apply the Act to other hazar-
dous occupationsﬁ The Government of Maharashtra has, for
example, extended the Act for farm workers. Coconut plucking
has been covered in Tamil Nadu. The Governments of Tamil
Nadu, U.P., Mysore and Bihar have extended the applicability
of the Act to the loading or unloading of cargo on any mechani-
cally operated vehicles or driving such vehicles for the transport
of goods. The Government of Bihar has extended the Act to

sweepers engaged in cleaning deep surface drains, sewers and
on trucks.

In the Mysore State (now Karnataka), outdoor Municipal
or District Board workers have been covered in beneﬁts under
the scheme. Other works which have been brought within. the
ambit of the scheme arc- loading, unloading and transport of
timber, works in all establishments using power and the esta-
blishments covered under the Factories Act.

1A. 21. We now come to the employment.-3 covered by the
Act, listed in the Second Schedule. It would appear that the
various categories of employment, listed in the Second Schedule
to the Act, broadly share a common feature, namely, that the
employments mentioned are comparatively more hazardous than
employments not listed in the Schedule. No doubt, where the
'Second Schedule includes an employment on the ground of the
number of persons employed, it seems to talce into account also
the economic status of the employer, the obvious assumption
being that if a large number of persons is employed, the employer
would be prosperous enough and would have capacity to pay.

The principle of hazardous employment is also the basis of
the power given to the State Government under section 2(3) to
add, to the Scheduled. any class of persons employed in any
occupation which the State Government is satisﬁed is a "hazar-
dous occupation".

1. See para IA . 17, supra.

'. Section 2(l)(n)(i).

=. Section 2(l)(n)(ii).

4. N. Hasan. Social Security System in India. ([972), page 68.

Second
Schedule.

Notiﬁcation
by State
Govern-
ments.

Employmﬁ
ntl covered
by the Act.

Provision
in Soviet

Civil C°d°' liability in cases of hazardous enterprises.

Hazardous
employ-
mﬁnts in
U .S.A.

Compensa-
tron.

1A.22. It may, in this connection, be of interest to refer to
a provision of the Soviet Civil Code, which provides for strict
It reads as follows:----

"454. Liability for harm caused by a source of 'increrzscd
danger.---Organisati0ns and citizens whose activity
involves increased danger for those in the transport
organisations, industrial enterprises building projects,
possessors of motor cars, etc., must make good the
harm caused by the source of increased danger unless
they prove that the harm arose in consequence of ii'-
resistible force or as a result of the intention of the
victim."1

It is, of course, hardly necessary to add that the above p-ro-
vision is a general one applicable in the ﬁeld of civil wrongs.
We have quoted it as illustrative of the idea of danger which
has been expressly adopted in the provision.

lA.23. In the USA. also, in many States, the laws relating
to workmen's compensation apply mainly to employments listed
as hazardous and extra--hazardous employments. Moreover.
most of the laws exempt employers having fewer than it speci-
ﬁed number of employees? Many States exclude agricultural.
employment.'

In many States of the USA. the laws are compulsory, but
in some they are elective. Where they are elective, the employer
has the option of rejecting the law. but then he loses the com-
mon law defences of--

(i) assumption of risk:

(ii) negligence of fellow employee;
(iii) contributory negligence.
Most employers accept the law".

. 1A.24. The concept of "compensation" under the Act is
linked with the nature of the injury--fatal or non-fatal, total
or partial; permanent or temporary.

Compensation under the Act is thus limited not only as to
persons and employments included, but also as to injuries cov
ered. The compensahle iniury must be "arising out of and

1. Article 454, R.S.F.S.R. Civil Code cited in Alice Jay. "Principles. of
Lianility in Soviet Laws of Torts" (1969) 18 I.C.L.Q. 424, 427 (replacing
old article 404).

3. U.S. Department of Labour, State Worlcn-ien's Compensation Laws
Bulletin No. 161 (1969) page 11.

'. See US. Department of Labour, Agricultural Workers and Workmen's
Compensation Bulletin No. 206 (1964). .

'. US. Department of Labour: State Werkmen's Compensation Laws Bulletin.-
(l969). page 3.

('I

in the course of employment". The expression "injury" was,
even before the Legislature made a provision on the subject,
held in many countries' to include occupational diseases.

1A.25. The disabilitiesrcaused by a personal

injury have
been classiﬁed, in the Act, as follows :--

The large majority of cases for which cash beneﬁts are paid
involve temporary total disablerpent. The employee is unable
(in such cases) to work at all while he is recovering from the
injury, but he is expected to recover fully.

A permanent partial disablement means a worker has a per-
manent injury, but is not completely disabled. He is usually
able to work. If he cannot go back to his old job, he can
often do other types of work or be trained to do so.

As against this, persons having a permanent total disable-
rnent are presumed to be unable to work. at all. or unable to
work regularly in any weIl--known_ branch of the labour market.
When death occurs, the purpose of compensation is to provide
for members of the family or other persons who have been de-
pendent on the deceased workman.

1. E.g., the Massachusetts Court (U.S.A.), see U.S. Department of Labour
Bulletin No. 16] (1969), Page 19.

Disabilities-
Classiﬁca-
t_ on of.

'3.

Introduc-
'tory.

Matters to
be conside-
Nd in
connection
with extra-
territorial
operation.

Rule of
Construc-
tion .

CHAPTER 1B

EXTRA-TERRITORIAL APPLICATION OF THE ACT

1B.l. We propose to deaL in this Chapter, with the extra-
territorial application of the Act (concerning section 1). The
reasons for discussing the subject at length will be apparent from
what follows.

113.2. The question of extra--territoria.l application of the
Workmen's Compensation Act might assume practical import-
ance, not only in respect of sailors outside India who, apparently,
are covered by the Act} but also in respect of Government cm-
ployees employed outside India,----and also as regards private
employees employed on trade or business outside India (who
are not, at present, covered). Consideration of the question of
insertion of a provision, in this regard, in the Workrnen's Com-
pensation Act, requires a brief discussion of the following
matters :--

( a) present position;

(b) the competence, with reference to international law,
to deal with the subject;

For understanding the present position, it is necessary First
to refer to the ordinary rule of construction.

The distinction between the domestic and the extra--terri--
torial effect of legislation was clearly developed when Bartolus
(1314-57) formulated the two guiding questions as follows:

Primo, utrum statutumfsorrigatur intrai'
nom subditos? Sectmdo, utrum e,1_';'fet.-tus
porrigatur extra territorium statuentium ?

rerrium ad
statuti

Present position--ora'inar_v rule of construction

1B.3. The second question of Barto1us3 is relevant for our
purpose. namely, whether the eﬁect of a statute extends beyond
the territory of the State whose Legislature passed it. The
ordinary rule of construction is that a statute does not have

1!.'See discussion infra Para 1B.i(). _
=. 'First, whether a statute extends within its territory to those not subject;
second, whether the eﬁect of a statute extends beyond the territory of the
legislator .
'. Para 11-3.2, supra.

extra-territorial operation, in the absence of express words or
necessary implication to the contrary.

This general principle is applicable to all statutes1--" and there--
fore to the Workmen's Compensation Act3 as well. Lord
Russell's judgment in R. v. Jameson', is instructive on the point.

In R. V. Jameson5, Lord Russell of Killowen observed:

"But ﬁrst I should like to make some observations with re--
gard to the rules of construction applicable to statutes such as
this. It may be said generally that the area within which a.
statute is to operate, and the persons against whom it is to
operate, are to be gathered from the language and purview of
the particular statute. But there may be suggested some gen--
eral rules----for instance, if there be nothingwhich points to 2.
contrary intention, the statute will be taken to apply only to
the United Kingdom. But whether it be conﬁned in its 0pcra--
tion to the United Kingdom. or whether, as is the case here
it be applied to the whole of the Queen's dominions, it will be
taken to apply to all the persons in the United Kingdom or in
the Queen's dominions, as the case may be, including foreigners
who during their residence there owe temporary allegiance to
Her Majesty. And, according to its context, it may be taken to

a ply to the Queen's subjects everywhere, whether within the
ueen's dominions or without."

lB.4. In England, it is a well founded, though rebuttable.
'presumption that Parliament does not assert or assume juris-
diction which goes beyond the limits established by the common.
consent of nations'? In 1808, Lord Ellemborough' put the
famous rhetorical question repeated in 1870 by Lord Black-
bura)":--
"Can the island of Tobago pass a law to bind the rights
of the whole world? Would the world submit to
such an assumed jurisdiction ?"

1. Halsbury (3rT{ed.), ';of3".¢,';."4:*s." it A' " if
'. ta) JcﬁFer_v.c v. Boosey, (I85-=04 H.L.L.R. S15. 9Z'.5(Per Lordwens Ieydaie);
(b) Maclaod V. Attorney General for New South Wales, (1891) A.C. 546
(P.C.).

(d) Cooke: v. Vogeler, (1901) A.C. 102;

(e) R. v. Jameso.-i, (1896) 2 QB. 425, 430, (Jar L:)rJ Russell of Killowen}.
3. Para lB.7, infra.
4, R. v. Jameson, (1896) 2 Q.B. 425, 430, (per Lord' Russel! of Killowen).
5. R. v. Jameson, (1396) 2 (1.13. 435. 43').
6

. (a) Theophile v. The Solicitor-General, (1950) AC. I86, I95. per Lord
Porter;

(b) Calquhou.-I v. Heldan, (1890) 25 Q3. 129, 134, 135 (per Lord Esher).
7. Buchanan v. Rm:-lcer, (1808) 9 E3-St 192-
3. Schibsby V. Wesrenluolz. (I870) L.R. 6 Q.B. 155, I60.

Rebuttable
presump-
tion in
England.

Rlilcof IB.4A. Prima facie, an Act of the United Kingdom Parlia-
°.°'15'.""°' rnent, unless it provides otherwise, applies to the whole of the
ﬂ?1%':5E:1:' U.K. and to no event outside U.K.1 Of course, it is clear
ten-jtm-jg] that the United Kingdom Parliament can legislate e:I:tra-terrr-
extent. toriallyf and if it does so, English courts must treat the statute

as valid, and give it eﬂect-".

1B.5. The rule is sometimes ststerl in the succinct form of
the principle that "unless the C01'.--.1'ary is made clear, an Act of
Parliament is not intended to have extra--territorial eﬂfeuztf"

Rule ti" 1B.6. The necessity for reading legislation in the light of
fgntﬂtguiloll the limitations imposed by the doctrine of international juris-
' ' ' diction has been appreciated in the United States of America
also for a very long time. in 1818, Chief Justice Marshall
emphasised" that general words in a statute 'must not only be
limited to cases within the jurisdiction of the State, but also to
those objects to which the legislature intended to apply them.'
This rule, which merely illustrates; the more basic principle that
an enactment 'ought never to be construed to violate the law
of nations if any other possible construction remains" has, since

then, been often re-aﬂ"1rmed", and is not open to doubt.
Egfnaziligf 1B.6A. The above discussion is not intended to deny the
position on competence of the U.K. Parliament, as a matter of Engﬁs-It Can-
the conti- sritntianal law, to pass legislation having extra---territorial effect.
H'-'-nt There are common law dicta?' in earlier cases to the eﬁfect that
legislation cannot change a rule of international law. These
appear to proceed upon the theory that International law is the
law.of nature applied to international relations, and hence is o-f
superior authority to positive law. "To that extent, Lord
Mansﬁeld's View may be the last echo in England of Coke's
doctrine in Bonhnm's case?" The view which has prevailed"

I. A. G. Alberta V. Ruggards Assets etc. (1953) 2 All ER. 951, 956 {P.C.'l.

". (a) Cm'! v. Pnpayarmi. (1863) I Moo P.C. (N.5'.) 47]; 15 BR. 778;
an Nibayer v. Nibayet, L.R. (1873) 4 RD].
(C) Re Wendr (1889) 22 Q.B.D. 733;
(d) Adam V. British dc Foreign S. .5. Co. (1898) 2 Q.B. 430;

(e) C.E.B. Draper V. Edward Turner, (1965) 1 QB. 424; (1964) 3 All
E.R. 148, 152.

'. Timaplrile v. Solicitor General, (1950) 1 All ER. 405 (H.L.).

.Bank Voar Hands! on Scheem-aarr v. Smtfnrd, (1953) 1 QB. 24-8, 258
per Devlin J. (as he then was].

. United States V. Palmer, ([818) 3 Wheat, 6[O, 63].
Tire Charmim: Berry, (1804) 2 Cranch 64, 118.
. Laurirzen V. Larsen, (1953) 345 U.S. 571.

. See discussion in Pound, "Common Law and Legislation, (1907-1908)
2] Harvard L.R. 383, 394.
9. Pound, "Common Law and Legislation, (1907-1908) 2] Harvard L.
Rev. 333, 394.
I0. cf? Evatt J. in Trustees arc. Co. v. Federal Commissioner of Taxation,
(1933) 49 C.I..R. 235. 239.

an~.u_a\vu

I .5

is that Llic courts are to prevent interference of legislation with
international law by interpretation; that, to avoid a conﬂict bet~
ween international law and a statute, the courts will resort, if
need be, to strained and forced construction. But, if the con-
flict is unavoidable, the statute prevails.

On the Continent, where dilferent views of the relation of
courts to legislation obtain, it is sigtliﬁcant that instead of dis-
cussing the duty of interpreting statutes so as to accord with
international law, (as do English and American authors). text-
wi-iters consider the duty of states to mange their laws so as to
bring them into harmony with the just demands of other states'.

Nevertheless, the general rule in Anglo American Law is that
the legislature is presumed not to have acted so as to lay down
r.=xtra--tcrritoria.l application.

113.7. In 'England, this general rule has been held to be
applicable to the W0rkrncn's Compensation Act also. Thus, it
has been held that a British workman is not entitled to com-
pensation in respect of an accident in foreign countries while
working there, for a British employer". in that case, an English
workman in the employment of English contractors was sent
out by them to Malta, to work for them there, and met with
a fatal accident. 1t was held that his widow was not entitled
to compensation under the 'Workmcrfs Compensation Act,
1906. it was also held that the Woricmeifs Compensation Act,
1906 had no application outside the territorial limits of the
United Kingdom, except in the case of seamen and apprentices
as provided by section 7 {of the 1906 Act).

Cozens Hardy M.R.3 said: "What is the widow's claim
here'? She is claiming. not as party to the contract, not as
claiming any rights under a contract made by her or by any
person through whom she claims. but she is shnply claiming
the performance by the defendants of a statutory duty, which
statutory duty is said to be found in the Workrnen's Compen-
sation Act. Now, that brings us face to face with this proposi-
tion. What is the ambit of the statute and what is the scope
of its operation '.7 It seems to me reasonably plain that this is
a case to which the presumption which is referred to in Maxwell
-on the Interpretation of statutes in the passage at page 213,
which has been read by Mr. Waddy, must apply: "In the
absence of an intention clearly expressed or to be inferred from
its language. or from the object or suhjecwnatter or history of
the enactment, the presumption is that Parliament does not
design its statutes to operate beyond the territorial limits of
the United Kingdom."

I . P0-gnil. "Common Law and Legislation , (1907-1908) 2] Harvard LR.
38 , B4.

'. Tam-din 1'. Pearson. (1909! 2 KB. 61 (C.A.].
'. Tonralfn V. Pearson (1909) 2 K.B. 61. 64 {C.A.}.

E nglisii
cases under
I ' 1'18
Compensa-
tion Act.

Cases rela-
ting to
'Ships.

English act
of 1925.

Present
position
under the
Indian Act.

_ Fletcher Moulton L. J. said in the same case: "And, as
this is a statutory right, we are driven to inquire what is the
ambit logically of the operation of the statute.

cannot apply universally all over the world. 1
have no doubt, for the reasons the Master of the Rolls has given,
it applies to the United Kingdom alone. The accident must be
one happening in the United Kingdom to a person there who
has the statuts of a Workman to some employer who, in some
way or another, is made liable to the jurisdiction of this Act."

"It clearly

1B.8 Similarly, a British ship on the higlt: seas is not
"British territory" so as to enable a workman injured thereon
to bring himself within the Act, unless he is within the special

provisions relating to seamenl.

lB.9. These decisions were rendered under the English Act
of 1906, but are valid for the later Act also- In England, the
Act of 1925 applied to members of the crew of any ship regis-
tered in the United Kingdom or of any other British ship or
vessel of which-thc owner or (if there is more than one owner)
the managing owner, or manager, resides or has his principal
place of business in the United Kingdom".

This is the only limited situation in which the English Act had
extra-territorial operation.

Present position---under the Indian Act

1B.10. As regards the position under the Indian Act, it may
be stated that there is no express provision in the Act regarding
extra-territorial application in general. But it would appear that
implicitly the Act recognizes that in one situation, the Act is
intended to have extra--tcrritorial opcration,--thoug'h of a very
limited character. We refer to the provision as to ships3. Sec-
tion 15 states that "this Act shall apply in the case of workmen
who are masters of ships or seamen" (subject to certain modiﬁ-
cations). This would seem not to be conﬁned to ships in Indian
territorial waters. Nor is it conﬁned to ships registered in India.
The word "registered", which occurred in section 15 and in the
deﬁnition of "seaman" in section 2(1) (lc), was omitted' in 1933,
alongwith the deﬁnition of "registered" which appeared previously-"
as section 2(l)(j) and which stated that "registered" means "regis«
tered in British India". Section 15(2), under which the time
limit for making a claim for compensation is to be counted after
news of the death has been received by the claimant etc., suggests

1. Schwartz v. India Rubber ere. Co. (1912), 2 Kings Bench 299 (C.A.).

'-'. Section 35, etc. {English} Act of i925, corresponding to section 7 of the
Act of 1906).

3. Section 15.

4. Act 15 of 1933 (amending the Workmen's Compensation Act). See Para
'1B.12, infra.

_ 5. See para ]B.l2, infra.

4 I

that the Legislature had in mind not merely accidents occurring
on the shores of India or within its territorial waters, but 3150
accidents occurring abroad or on the high seas. The procedural
provision in section 15(3), to some extent, bears out such a wide:
interpretation; and the provision in the Act relating to _venlJ6.-
under which, where the Workman is the master of a ship or a
seaman, any matter under the Act may be done by or before a
Commissioner "for the area in which the owner or agent of the
ship resides or carries on business," is also _wide enough to sup~
port such an interpretation. The last mentioned provision (S530-
tion 21) is helpful in another respect,_ namely, It 1Dd1C3t'3S_3»
legislative intention to conﬁne the application of the Act, (in
relation to ships) to cases where the owner or agent of the ship
resides or carries on business in India.

cation

, . . Int
1B.1l. It cannot however be disputed that all these provisions of 1933
are equivocal, in the sense, that they can be held to be conﬁned Amen-r_'lmcn[.

to accidents occurring within Indian territorial waters. But that
does not seem to be the intention, particularly if the amendment
of 1933 is kept in mind.

1B.12. This brings us to the amendment of 1933. It appears
that before 1933, there was a requirement that the ship must be
registered in British India, but'! the Report of the Royal Com-
mission on Indian Labour pointed out that many Indian seamen
were employed on British ships, and those shipswere registered
outside British India, so that the Act was not available to them3
No doubt, as that Commission pointed out, certain arrangements
had been made to protect their rights by ensuring that they would
be entitled to compensation under the British" law, and that the
Workmen's Cornpensation Commission in India would act as the
arbitrator (under the British law) for determining the claim under
the British law. But, since the arrangement was found to be
unsatisfactory, the Royal Commission suggested removal of the
word" "registered", in this as well as in the other sections ner-
taining to ships.

1B.l3:. This recommendation of the Royal Commission was
duly carried out in 1933. This amendment may be taken as hav-
in g_been intended to have extra--territoria] application. If so, inter-
national law becomes relevant. and is. therefore. considered
below.'

Position under International law

Position be~
fore 1933-
requirement
of regis tra-
tion.

Amendment
of 1933.

113.14. So far as the application of a law to Ierriforial waters Immmi n I
is concerned, there is no serious diﬂiculty from the point of view |a,w-imii(:,r?.1

1. Section 21(1), proviso, see para 1B_25, infm
'. Report of the Royal Commission on Indian Labou;-_
'. See also para 1B.20, infra.

4. Para lB.14 at sec. infra.

Waters.

of international law. By modern doctrine, the jurisdiction of a
State to legislate in relation to events occurring within such Waters
is, in general, undisputed.

It was pointed out by an American writer,' some time ago;

"If the locale of injury is within a sovereigns own waters,
it is part of the Anglo-American tradition that the courts of that
sovereign--and indeed other courts--will apply his particular ver-
sion of the maritime law in translating the facts into juristic re-
sults."

"If the ship floats in territorial waters, the law of the waters
traditionally speaks more loudly than that of the ship?"

Certain restrictions are, no doubt, imposed by conventions as
to the exercise of the jurisdiction in relation to ships not regis-
tered. But, we need not go into these, as they do not touch legis-
lative competence.

It may also be noted that, in India, fortunately, no such con-
troversy has arisen as has arisen in the U.S.A., as to whether a
particular event has occurred on "navigable waters" of the U.S.A.,
or whether it has occurred on State territorial waters.

An opinion given by the Law Officers, including the Queen's
Advocate, in 1879, quoted in the Debates in the House of Com-
mons on the Shipping Contracts etc. Bill,3 may be cited.

"A British ship had put into a Spanish port and we thought
in this country (England) that the Spanish authorities were be-
having very vexatiously in that they were visiting various claims
and penalties on the ship because, quite accidentally and without
doing any harm to anyone, a quite unimportant matter had been
omitted from the manifest of the cargo. Yet the Law Ofﬁcers
of the time reported to the Foreign Secretary in the terms :

"By the Law of Nations every independent Government is
the sole judge of the measures which may best suit, promote, or
insure its own people, their interests and safety; may open or
chose its territory, waters, and harbours; and altogether refuse to
admit, or impose what conditions it may deem ﬁt, upon the admis-
sion of foreigners and foreign vessels. These conditions may be
absurd, vexatious, inconsistent with or contrary to the usage of
all other civilized nations; still the Government has the right
to impose them, and a foreign Government can only protest
against their being imposed." '

1. G. H. Robinson, "personal injury in the maritime indttsstry", ([930-31)
44 Harv. L. Rev. 223, 229.

". See article, "Applicable Law in State Waters", (1964) 27 Temp. I..Q.
479,480.

3. H. C. Debates, Vol. 698 (15 July, 1964) C01. 1243 (Speech of Mr. Charles
Fletcher Cooke).

. 4'5

-U)

1B.l5. Similarly, if the amendments to be made were conﬁned
to ships registered in India, no difﬁculty would arise l1'1 inter--
national law.

1B.16- But the application of the Act to extra--territoria_l acci-
dents on non--Indian ships or to other extra--territorial accident:-.,
raises certain problems.

The current view in international law seems to be --

(a) A State has jurisdiction to prescribe rules governing
the conduct of its nationals, wherever they are
found.

(b) But a State may not prescribe rules governing the con-
duct of aliens outside its territory, merely because
such conduct affects nationals of the State outside of
its territory.'

1B.17. English legislation and judicial decisions observe these
limits. The judicial decisions cited above in connection with the
discussion of the ordinary rule of construction? are relevant on
this point also.

1318. The same principle has been applied in the U.S.A. The
earliest judgment relevant to the topic is that of Chief Justice
Marsha]l.3 Some of the more important recent cases' happen to
relate to labour legislation,---e.g-, the Employer's Liability Act.

There are other American cases-3 also, to the same effect.

1B.19. Speaking judicially," Story--had said in 1824: "The
laws of no nation can justly extend beyond its own territories,
except so far as regards its own citizens." Ten years latcr,7 while

1. The position, as stated above, is l;t--sed--on a study ol'----~

(a) Harvard Researches in International Law Jurisdiction (1935)
Vol. 1, page 439, et. seq.

(b) Jennings, ".1-Extra-territorial Jurisdiction and Anti Trust Laws" (1957),
British Year Book of International Law, 157.

(e) Article in (1962) British Year Book of International Law, 457.

(d) Winters' article on Maritime Torts in (1954) 3 I.C.L. Q. 115

(e) Ellis, "Extra-territorial applications of anti-trust legislation" (1970)
Netherlands Law Review I.L.A. Conference Issue.

*. See discussion as to rule of construction, supra, and as to rebuttable pre-
sumption, para 1B.3 and 1B.4, supra.

3. Rose v. Himely, (1808) 4 Cranch 241, 297.

'. (a) New York Central Railroad V. Cftishobn. (1925) 268 U.S. 29 (Emp-
loyers Liability Act held not applicable to accidents in Canada);

(b) Vermflwt Brown Ca. V. Cor.-1eIi'(I943) 335 Us. 377 93 L. Ed. 76
(Fair Labour Act and Employment in Bermuda).

5. McCul[och V. Sociedad Naciomzl dc Mondrtes, (1963) 372 U.S. I0.
5. The Apollorr, (1824) 9 Wheat 362, 370.
7. Story, conflict of Laws, (1934) page 18-20.

Ships
registered
in Ind1a.

Ditﬁculty
as regards
extra-
territorial
accidents.

English
view.

U.S.A.

view.

SLory's
v iew.

Positiop
reg. ships.

Amendment
of 1933.

he was Dane Professor of Law in Harvard, he stated the following
as "general maxinis of international jurisprudence."

"(I) As every nation possesses an exclusive sovereignty and
jurisdiction within its own territory the laws of every State aﬁect
and bind directly all property, whether real or personal, within
its territory; and all persons who are resident within it, whether
natural--born subjects or ﬂiens; and also all contracts made and
acts done within it.

(2) No State can, by its laws, directly affect or bird property
out of its own territory or bind persons not resident therein, except
that every nation has a right to zind its own subjects by its own
laws in every other place."

Broadly speaking, the position is the same today.

1B.20. Thus, with regard to extra--tcrritorial accidents on ships
not registered in India, diﬂieulty arises if the Indian Act, section
15, is given a wide scope. As stated above} the Act (as amend-
ed in 1933) is intended apparently to cover such extra territorial
accidents.

The Royal Commission on Indian Labour had recommended
that special attention should be given to the possibility of extend-
ing the Indian Act to Indian seamen while serving on all ships
within India's territorial waters and on British ships engaged in
the coastal trade of India. The great majority of Indian seamen
were engaged on ships registered outside India, and mainly on
British ships. These seamen could not claim compensation under
the Indian Act, though they had the protection of the British and
other Workmen's Compensation Acts. These aspects were speci-
ﬁcally mcntioned by the Royal Commission.

1321. It appears that the legal difficulty in extension of the
Act beyond the Indian. territorial waters to ships not registered
in India (from the point of view of international law) was noticed
by the ofﬁcers of the Government, and this was one of the reasons
advanced (in the beginning), when 'the Bill of. 1932 was introduced,
for not proposing an amendment in the Act so as to cover
Indian seamen employed on ships not registered in British India
---a situation speciﬁcally emphasised in the Report of the Royal
Commission on Indian Labour.

1B.21A. However, several members of the Legislative As-
semblyg stressed the need for covering such seamen.

1. See discussion regarding present position ]B.l0 and 1B.l3, supra.
'. Particularly, Shri N. M. Joshi.

nn m~u

The amendment regarding ships was made at the Select Com~
mittee stage.1--" The Committee observed:---

"Sub-clause '(ri)(r't') and (iii) and clause '9,--'_~WE have
omitted the deﬁnition of "registered ship from the
Act, as we consider that there is no longer any need
for making any distinction between ships which are
registered elsewhere and ships winch are tmreginfered.
We have inserted in item (vi) of Schedule II, the
ships to which we consider the Act should be ap-
plied."

Material in the ﬁle relating to the period when the Select
Committee on the 1932 Bill made its report, does not indicate
how the objection" from the point of View of international law
was taken to have been satisﬁed. But it may be stated that most
of the non-Indian ships employing Indian seamen were of British
ownership, and obviously they could not raise a legal objection
in those days, in the then constitutional set-up. The present posi-
tion is obviously different.

Need For Amendment

1B.?.2. The next question therefore is whether (a) besides
the ease of ships {which is already covered, though in an indirect
way),* it is necessary to cover "other extra--territorial accidents,
and (b) whether as regards ships, the position should be chang-
ed. Opinion on the subject of competence from the point of
View of international laws is very much in a ﬂuid state. One
has, therefore, to proceed cautiously be-lore extending the scope
of the Act. As the Supreme Court of the United States has
put it :6

"In dealing with international commerce we cannot be
unmindful of the necessity for mutual forbearance if
retaliations are to be avoided: nor should we forget
that any Contact which we hold suflicient to warrant
application of our law-to a foreign transaction will
logically be as strong a warrant for a foreign country
to apply its law to an American transaction."

If at all the extra--territorial application of the Act is to be
further extended, it can be conﬁned to Government servants, or
to cases where the employer as well as the employee is a citizen
of India. From the point of view of international law, there may

1. Legislative Department File No. l60'-'32-C.&G. (l932l (relating to Act
15 of 1933) (National Arehievtesi.

=". liner: of the _S:l:;:t C;3,11:n'ri'e:, (10 Febrttary. 1933) p:tr.\ 3.
3. Para ll-L21. _ttt_om.

'. S:x:tit::1l5.

5. Sec discussion, srrpi-o.

5. Latanrzen V. Lar.reJt, (I953) 345 US. 57.

28 M of L'w.';'74~3

'Whether

it is desir-
able to
cover extrtr
territorial
accidents.

not be a very serious dispute about the exercise of legislative
power where both the parties are the citizens of the country.
Hence, if extra-territorial application is extended to those two
situations, no serious objection from the point of view of inter-
national law is likely to arise. The moment, however, one crosses
theseboundaries, and tries to regulate compensation fc-r accidents
occurring abroad where only one of the parties is a citizen of
India. diﬂiculties are bound to arise--both legal and practical.

Np needto 113.23. It would, however, appear that even as regards acci-

""1d°;"'1° dents occurring to Government ernlployees or occurring in cases

5°" ' where the employer and the emp oyee are Indian citizens, no
practical diiﬁculty has been experienced or hardship felt by rea-
son of the absence of a provision, and the matter should better
be left as it- is.

Desirabmiy lB.24. In _fact, even as regards ships, it is better to conline

of m,Iic_ the Act to ships registered in India. The concept of "Indian

ﬁngu-.3 ships"1 has not much direct importance n1 our statute law.

present

provision Conditions now have changed; there are not as many Indian

35 t° 3h'1'5- seamen on ships registered outside India as before, and having
regard to international law, there is a case for re-insertion of the
word "registered".

Such an amendment will, no doubt, have the eﬁect of taking
out ships whose owners carry on trade or business in India and
employ Indian seamen, if the ships are registered outside India.
It is fair that the workmen employed on such ships should also
receive compensation but they will have to pursue their remedies
under the law of the country whose ﬂag the ship ﬂies. If neces-
sary, the matter could be dealt with by agreement with the foreign
country concerned?

The general British view was summarised in these words by
the Attorney General in 1964, in the course of the Debate on
the Shipping Contracts etc. Bill.3

"In our view, a country such as America acts in excess
of its own jurisdiction when its measures purport to
regulate acts which are done outside its territorial
jurisdication by persons who are not its own nationals
and which have no, or no substantial eﬁect within
its territorial jurisdiction."

Aimat-,_ 1B.24. We now come to the question of aircraft. An air-
craft has no ﬂag, but the system of registration IS applicable.
There appears to be some propriety in adopting the criterion of
the place of registration of aircraft. Under the Tokyo Convention,

1. Sections 21 and 22, Merchant Shipping Act, 1958.

\ . c.f. sections 35 to 37, English Act of 1925.

5. H. C. Debates, Vol. 698 (15 July, 1964)Co1. 1279 (Attorney General).

of 1963 for example, (a) the State in which an aircraft :.s'_re--
gistered has power to exercise jurisdiction over offences "against
penal law" and over acts which jeopardise safety or good order
and discipline; and the °urisdiction of other States (including

__ any which may be ever own) is limited to theecircumstanees
'listed in Article 4 of the Convention.

(b) The aircraft com-
mander is given speciﬁc powers in accordance with his scheme,
coupled with an immunity (Article 10), and other States incur
certain obligations to assist in its enforcement. (c) For e:_rtra~
dition PUEOSES, the offences are deemed to have been committed
both in e territory of the State of registration of the aircraft
and in the place where they occurred. The Indian Penal Code
lias also adopted the test of place of registration. M

1B.25. It is, therefore, legitimate to give importance to the
rule of the place of registration of the aircraft, as has been
done in the case of ships, with reference to the Workmens' Com-
pensation Act also. '

1B.26. This disposes of the diﬂicult question of application
of the Act extra-territorially to ships and aircraft. We should,
in connection with the jurisdiction of authorities under the Act,
refer to section 21, quoted below:--

"21(1) Where any matter is under this Act to he done
by or before a Commissioner, the same
shall, subject to the provisions of this Act and to
any rules made hereunder, be done by or before a
Commissioner for the area in which the accident
took place which resulted in the injury:

"Provided that, where the workman is the master of
a ship or a scaman, any such matter may be done
by or before a Commissioner for the area in
which theowner or agent of the ship resides or
carries on business."

_We are primarily concerned with the proviso to the section.
It is really a procedural provision which comes into operation
where the Act1 applies to the particular ship, and has not the
status of a rule relevant to the extra-territorial application of
this Act? Hence, we need not disturb it.

lB.27. In view of what is stated above, the only amend-
ment needed regarding extra--territoria1 operation of the Act is
to deﬁne the extra--territorial operation as conﬁned to ships and
aircraft?' registered in India.

1. Seel and Secton 15.
3. See also para lB.10, supra.
3. zﬁggw section providing for application to aircraft is proposed (section

Section 21.

Section I -
Amend-
ment re-
gardin g
I'-hips an

at c at .

, What stated above as to ships, applies to aircraft also.
The éxtrarterritorial application of the Act to aircraft should,
therefore. be provided for, on the same lines as is proposed in
relation'-toaships.

%°°9"'"1¢|1* 113.28.' We, 'therefore, recommend that the following sub-
af;;°l;'d'° section should be inserted in section 1, in order to deal with

5ec,im,1_ the extra--tenritorial application of the Act.

"This Act shall apply to masters, seamen, and other

' ' _ members of the crew of ships, and captains and

other members of the crew of aircraft, outside India,

provided that such persons are worlémeii within the

meaning of this Act, and the ship or aircraft is
[registered 'in India."

-in

CHAPTER 2

DEFINITIONS

2.1. We shall deal in this Chapter with the deﬁnitions con-
tained in section 2 of the Act. While some of the deﬁnitions---
such as the deﬁnitions of "managing agent" and "ininor",--a
purely drafting devices, and some have only minor importance--
such as t.he deﬁnitions of "managing agent" and "minor",--a
number of definitions are of considerable im rtance, as they
are concerned with some of the fundamentallxconcepts of the
Act. The deﬁnitions of "dependant", "emplo er", "partial dis-
ahlement", "total disablement", "wages", an "workman" fall
in this category.

Some of the other provisions contained in section 2, such as
sub--sections (2) and (3), are not in the form of deﬁnitions,
but they also possess an importance of their own. =I,t is for
these reasons that this Chapter will occupy more space than a
discussion of statutory deﬁnitions would normally occupy.

2.2. We shall concentrate on important deﬁnitions. We
first take up Section 2(1)(d) which deﬁnes the expression "de-
pendant''._ is is one of the most important deﬁnitions in the
Act, because on it depends the right of a person to participate
in compensation payable on the death of _the workman.

The deﬁnitions of "dependant" is as fol1ows:----

( d) "'dependant"' means any of the following relatives of
a deceased workman, namely :---

fi) a widow, a minor legitimate son, and unmarried
legitimate daughter, or a widowed mother; and

(ii) if wholly dependent on the earnings of the work-
man at the time of; his death, a son or_a daughter
who has attained the agent 18 years and who is
inﬁrm; I '

(iii) if wholly or in part dependent on the earnings of
the" workman at the time of his.dea-th.g ,

(a)' a widower,
(b) a parent other than a widowed mother,

I c) a minor illegitimate son, an unmarried illegiti-
mate daughter or a daughter legitimate or ille-
gitimate married and a minor or if widowed
and a minor,

Introduc-
tory

Section 2
(l)(d}--
"Depen-
dant."--
basic Prin-
ciple.

Comple 't
of _the 32-?
ﬁmtion.

Improve-
ments in
deﬁnition
of 'depen-
Giant'---
Legitimacy.

(d) a minor brother_ or an unmarried sister or
a widowed sister if a minor,

(e) a widowed daughter-in-law,
(f) a minor' child of a pre-deceased son,

1' g) a minor child of a pre-deceased daughter where
no parent of the child is alive, or

(h) a paternal grand parent if no parent of the
workman is alive. .

The basic principle underlying the provision entitling the
dependants to claim compensation' under the Act, is that there
should not be a sudden economic dislocation in the family by
reason of death of the workman. The list of dependants is
based on certain assumptions as to dependence. having regard
to Indian social conditions.

2.3. The deﬁnition of dependant appears to be complex,
but the complexity is mainly due to the legislative scheme. The
compensation" is to be distributed among the dependants. The
intention of the legislature is that while in the case of certain
relatives this beneﬁt should be available irrespective of whether
they are or are not dependent on the workman, in the case of
certain other relatives" the beneﬁt should be available only if
they are dependent on him. In the latter case, again, a distinc-
tion' had to be made between relatives wholly dependent and
those partly dependent on the workman. Apart from this,
there are other factors leading to complexity, based on physical
condition, age, sex and legitimacy. For example, a son or
daughter if inﬁrm, though a major, had to be provided for. This
is based on lpgiysical condition. In the case of sons, a distinc-
tion had to made between minor sons and major sons. In
the case of daughters, the distinction had to be primarily related
to their married, or unmarried, status.--but in certain respects,
age was also regarded as material. Then, there is a distinction--
unfortunate if one may say so'---bctween legitimate and illegiti-
mate children,--not in every case but in certain respects. So
long as these distinctions are retained. the room for simpliﬁcation
of the deﬁnition is naturally limited. -

2.4. So much as regards the complexity of the deﬁnition of
"dependant". As regards the substance of the deﬁnition, there
are a few improvements worth considering. The distinction bet-
ween legitimate and illegitimate children" is wrong on principle,

1. Section 8(5).'
3. Section 8(5).

"l'hc.dis__tinction between those 'dependent and those not 'dependent
is not H1 harrnonywitli the very expression deﬁned.

' These distinctions came into the Act _by amendments or 1933 and 1933
5 .See para 2.4, infra.
' Para 2.3, supra.

and out of tune with modern thinking. We think that it should be

removed. In other words, a "minor illegitimate son" and an "un-

married illegitimate daughter" should be transferred from cate-

gory (iii) to category (i) of section 2(1) (:1), which contains the
eﬁnition.

2.5. Illegitimate children are not "non-persons". They are
humans, live and have their being} In the U.S.A. it has been
held that they are clearly "persons" within the meaning of the
Equal Protection Clause" of the Fourteenth Amendment of the
U.S.A. Constitution?

2.6. Regarding illegitimate children, it may be noted that
courts in U.S.A. have gone the furthest. _In an American case,"
the petitioner, an unwed mo-ther, 'ﬁIed an action against one Perez,
the putative father of her minor child in the State of Taxas.
During the proceedings, it was established that Perez was the
"biological father" of the petitioner's child needing support. It
was held, however, by the trial court that there was no legal
obligation to support an illegitimate child. This view was con-
ﬁrmed on appeal.

The Supreme Court of the U.S.A. reversed the decision, and
stated that "once a State posits a judicially enforceable right on
behalf of children to needed support from their natural father,
there is not constitutionally sutﬁcient justiﬁcation for den ing such
an essential right to a child, simply because her natural ather has
not married her mother."

The Court relied on its earlier ruling, holding that illegitimate
children are entitled to wrongful death beneﬁts," and also to a

similar decision" applying the beneﬁts by way of workmen'.s' com-
pensation to illegitimate children.

2.7. In many cases.'Congress has made a provision for re-
covery by illegitimates, but with certain safeguards designed to
require proof' of paternity.

2.8. It may be noted that numerous Latin and South Ameri-
can countries have attempted to solve the'problem by constitutio-
nal provisions. The Boliviana Constitution, for example. provides
that "inequities among children are not recognised. They have

1. See Note, "The Rights of Illegitimatcs under Federal Statutes", (1962
76 Harv. L. Rev. 337.

". No State shall "deny to any person within its jurisdiction the equal
protection of the laws.

. Levy v. Lofnsiami, 20 L. Ed. 2 d 436, 439, (Doughlas J.). .
Game: V. Perez, (1973. 403 U.S. 535; 35 L. ed. 56; 41 U.S.L.W. 417.
. Levy v. Louisiana, (1968) 391 U.S. 68.

. Weber V. Acme Carnality and Surety Company. (1972) 406 U.S. 164.

. Note "Rights of illegitimatcs under Federal Statutes" (1962. 76 Harv.
L. Rev. 337, 339, 344 and footnote 27.

~Jmu_a-u

Constitu-
tional pro-
visions in
some Latin
American
countries.

Adopted
Children.

Section 2
(1)(d)-- un-
born child
of the
workman.

all the same rights and duties." The Gautemala Constitution
provides that "all children are equal before the law and have
identical rights.'-"'

The Panama Constitution provides that "parents have the
same duties towards children born out of wedlock as towards
children born in it. All children are equal before the law and
have the same hereditary rights in intestate succession?"

2.8A. Secondly it is desirable to treat adopted children in the
same way as natural born children, having regard to changed
social conditions. In fact, under the General Clauses Act} "son"
includes an adopted son, where the 'personal law' permits adop-
tion. Adoption is now being resorted to by non-Hindus also.

2.9. The implementation of the two changes indicated above"
in the deﬁnition of "dependant" permits a slight shortening of
category (iii) of the deﬁnition.

2.10. At present, the Workmen's Compensation Act does not
contain a speciﬁc provision for the rights of an unborn person. If
a strict textual interpretation is adopted, his rights will not be
regarded as covered by the item in the deﬁnition of "dependant"
which relates to "children".

2.11. It may be noted that in England it has been held that
damages may be recovered under the Fatal Accidents Act, 1846,
for the beneﬁt of a posthumous child." Ownership may be vest-
ed in a child in the womb and such a child constitutes a "life"
for the purpose of the rule against perpetuiticsﬁ So ':00, such 2:
child can be a "child of the family", within s. 16(1) of the
Matrimonial Proceedings (Magistrates Courts) Act, 1960.9

There is an interesting provision in the Hindu Succession
Act as to the right of an unborn child which reads as follows :e

"20. Right of child in womb.---A child who was in the
womb at the time of the death of an intestate, and
who is" subsequently born alive shall have the same

. Cons_titution,.articl-3 183, Fan American Union. Constitution of Republic
of Bolivia (1961).
". Constitution, article 86(2}(3). Pan American Union, Constitution of
Republic of Gautemala (1962).
5. Constitution, art. 58. Pan American Union, Constitution of the Re-
public of Panama (1946).
. Section 3(53). General Clauses Act, 1897.
. Regarding illegitimate and adopted children.
. The George and Richard, (1971), LR. 3 Ad. & E. 466.
. (a) Elliot v. Lord Joicey, (1935) A.C. 209 noted in 9 Auszralian Law
Journal 294; i _
(b) R: Stem, Bartlet! V. Stem, (1968) Ch. 732; (1961) 3 All ER. 1129.
3. Caller v. Caller (I966) 2 All ER. 754.

I-

"-lG\9qRﬂ

right to inherit to the intestate as if he or she had
been born before the death of the intestate, and the
inheritance shall be deemed to vest '31 such a case
with eﬂ'ect from the date of death of the intestate."

2.12. It appears desirable to make a speciﬁc provision to the
elfect that a child who was in the womb at the time of the death
of the workman, and who is subsequently born alive, has the
same right to be treated (as a dependant) as if he or she had
been born before the death of the workman.1 We recommend
accordingly. This recommendation is conﬁned to an unborn
child of the workman and will not include any other unborn

dependants.

There should not be any consequential complications. If the M

child is actually born alive before the award of compensation, the
amount due to him can be suitably invested. If he is not born
by that time, a suitable provision could (if necessary), be in--
sorted? for safeguarding his rights and for ultimate adjustment
of the position it" a live birth does not take place.

2.13. Section 2(1)(d) (i) uses the expression "unmarried

- -daughters". It has been held that this does not include a divorc-

ed daughters" This interpretation has the eﬁect of totally rc-
moving the divorced daughter from the category of dependants,
there being no other item covering her. We think that if totally
-dependant, a divorced daughter should (until re--mar1-ied) be
treated as a dependent.

2.14. The deﬁnition of "dependant" includes certain widows.
In an Andhra Pradesh case} it was held that a widow does not

cease to be a dependant on her retmarriagc. The Court observ-
-ed:--- '

"There is no provision in the Act to the effect that subse-
quent events would affect the claim of the dependant
to compensation. Further, a similar conclusion fol-
lows by a consideration of section 8, sub-section (5).
which is in the following terrrls:--

'8(5) Compensation deposited in respect of a deceas-
ed workman shall, subject to any deduction made
under sub-section (4), be apportioned among the
dependants of the deceased workman or any of
them in such proportion as the Commissioner
thinks fit, or may, in the discretion" of the Com-
missioner, be allotted to any one dependant. "

___._..> . __.,(.. .___. , ,__m

.___.._,. __m...___.,_ _,____.._

I. Compare Section 20, Hindu Succession :Act, }956 (Para 2.11, supra);
5'. Section_3 could be amended suitably, if necessary.
3. ([969) All L. J. l6,_cited in the Yearlvnigest (1969), Col. 3225.

". R. Korayyn V; Di' Nngavardha.-nzmma, .1\.l.R. [1962 Andhra Pradesh 47:
para 19, (Sanjeeva Rao Nayadu J.'}. '

Recomm-
cndation.

Unmarried
daughter
and divor-
ced daugh-

ter

Re-marri-
age of wid-
ow.

Minor att-
aining maj-
ority before
order of
Commiss-
ion.
Amendment
regarding
predecea-
se

Mine rbro-
ther no
cha age.

Uterine
relation-

ship-Reca-

mrnenda-
ion.

2.15. In a Rajasthan case,' the contention that the widow--

became debaired from claiming compensation on account of her
re-marriage was rejected, "because in the Act there is no such
provision that after re-marriage widow of the deceased would not
be regarded as a dependant. Under section 21 of the Hindu
Adoptions and Maintenance Act, 1956, a widow remains a de-
pendant. within the meaning of that section so long as she is not
re-married. But the deﬁnition of the 'dependant' under the Act
is not so restricted and the fact that she has re--marri.ed will not
disentitle her to- claim compensation under the Act."

In respect of the widowed mother} the contention that a
mother who has rc--married cannot be considered to be a "widow-
ed mother", did not appeal to the Madhya Pradcsh High Court.
The High Court gave the reason that the relationship of a "mother
is not destroyed by re-marriage" and, more over, the word
"Widowed" has been used in contra-distinction to the word "un-

widowed".

2.16. With respect, we are unable to see the validity of the
reasoning adopted in the decisions cited above. In our view,
the widow should be debarrcd on re-marriage, since there would
be some body to look after her. It would be useful to add an
explanation to that effect, modifying the above judicial inter-
pretation. .

2.17. We are also of the view that a person who attains majo-
rity before the order under section 8(5) is passed, should be de-
barred from compensation, if his entitlement as a dependant is
on the basis of minority only.

2.18. We are further of the view that in the definition of
'dependant' [item (iii) (f) and (g)], the word "predeceased"
should be ampliﬁed so as to include a case where the person
concerned dies before the passing of the order under section 8(5).
This is intended to avoid hardship for the children of persons who
die in the interval between the worlcmarfs death and the date
of the order of the Commissioner under section 8(5).

2.19. During our discussions, we considered the question
whether a minor brother should be excluded from the deﬁ nition of
"dependant". But the present provision is based on (i) Indian
social conditions, and (ii) the fact of dependence. We 'therefore
decided not to recommend a change in this regard. .

the words indicating relationship

2.20. The question whether
arisen under the Act. In one

include uterine relationship has
case" from Madhya Pradesh,
work. One B, a minor brother of the deceased,
for compensation. "The court held that from

1. R. B. Maotrdra & Co. V. Bhanwari, A.I.R. I970 Raj 111, 118, para l9_
'. Inrivabji v. Amir/Chan, A.I.R. 1959 M.P. 329. Para 4, (P. K. Tan: 1.).
3. G. M. Gwalior Sugar Co. v. Sriial, A.I.R. 1958 MJ'. I33, 134.

the evidence, it

appeared that B was a uterine brother of the deceased (1.e. the
mother of B and the mother of the_ deceased was the same_). The
question was whether the term "minor brother" occurring in sec-
tion 2(1), clause (cl), included also a minor uterine brother. _It
was held that the term "minor brother" includes a minor uterine
brother under the Workmen's Compensation Act which was a

law which has "its roots in charity, sympathy and the advance of
socialistic ideas."

2.22. In a Lahore case." it had been held? that a "minor
brother" includes a consanguine minor brother. The Lahore
case also referred to the principle of Mohammedan Law, accord-
ing to which consanguine brothers and sisters are classiﬁed as
residuaries (heirs).

The High Court of Madhya Pradesh has held that a consan-
guine brother and a uterine brother stand on the same footing
as both are step-brothers. Reference was also made by the
Madhya Pradesh High Court to the provision in the Indian Suc-
cession Act,3 under which (for purposes of succession) there iv.
no distinction between those who are related to the deceased per-
son by full blood and those related by half blood.

In our opinion, the above interpretation should be codiﬁed
so as to include uterine and consanguine brothers and sisters in
the deﬁnition of "dependant".

2.21. We recommend the following revised draft of the deﬁ-
nition of "dependant", in the light of the above discussion.

Revised draft of section 2(1) (of)

(d) "dependant" means any of the following relatives of a
deceased workman, namely :--

(U a_Widow, a minor son, an unmarried daughter, or a
widowed mother; and

if wholly dependant- on the earnings of the workman
at the time of his death, a son or a daughter who has
attained the age of eighteen years and who is inﬁrm,
or a divorced daughter' who has not re-married,'

(ii)

(iii) if wholly or in part dependant on the earnings of the
workman at the time of his death--

(a) a widower,
(b) a parent other than a widowed mother,

1- Dependant: of Karmr srngh, A.I.R. 1931 Lab. 752.
'. In re Mong Kyan. AIR. 1931 Rang. 173, takes a contrary view.
3. Section 2'.-', Indian Succession Act, 1925,

' A' *0 di"°l'°5d daughters, totally dependent, see 2(l)(a)(ii).

Recomme-
nda ion

Section
2(1)(6)---
employer
lending
the wor
man to
another
employer.

(e) a minor daughter, if married. . . .or widowed. . . .,

(cl) a minor brother or an unmarried sister or a minor
widowed sister,

(e) a. widowed daughter--in-law,
(f) a minor child of a pre-deceased son;

(g) a minor child of a pre--deceased'"daug;hter where
no parent of the child is alive; or

(h) a paternal grand--parent, if no parent of the work-
man is alive.

Explanation.--For the purposes of this clause.

(:1) references to a widowed female do not include a female
who re-marries after the death of the workman and before the
date of the order of the Commissioner under sub-_Seca.'ion (5) of
section :5;

(b) references to an unmarried female do not include---

(i) a female who marries beforethe date of the said
order;

(ii) a female who is divorced before the date of the said
order; l

(d) references to a minor do not include a person who at-
tains majority before the date of the said order;

(e) a child of the workman who was in the womb at the
time of the death of the workman, and who is subsequently born
alive1 whether before' or after the date of the said order, shall
have the same right to be treated as a dependant as if he or she
had been born before the death of the workman;

_(f) references to a son, daughter or child include an illegiti-
mate or adopted son, daughter or child;

(g) references to a 'pre-deceased' relation include a person
who dies before the date of the said order.

2.23. Where an employer lends a workman, at present, under
section 2(1) (e), the lending employer is not liable to pay com-
pensation. Under the English Act,2 the lending employer is
liable. We are of the View that both the lendin em Jloyer and
the borrowing employer should be liable.
of the workman are lent at the instance of the lender and the
relationship between the lender and the workman continues. In

para 2.12, supra.
3. Section 5(1) of the English Act of 1925.

Usualy, 1.10 services.

some cases the lender. would ordinarily be more rich than the
person to whom the services are lent. The lender has also, in
most cases, a business interest in lending. He exposes the
workman to hazard. Hence he should be liable. The borrow-
ing employer, who uses the services of the workman should, Of
course, continue to be liable since the hazard IS in the new em-

ployment.

2.24. Accordingly we recommend the following re-draft oi
the deﬁnition of 'employer';

(e) "employer" includcs-----
(i) any body of persons whether incorporated or not;
(ii) 'any managing agent of an employer;
(iii) the legal representative of a deceased employer;
and J
(iv) when the services of a workman are temporarily
lent or let on hire to another person by the person
with whom the workman has entered into a con-
tract of service or apprenticeship, the person with
whom the workman had entered into the contract
of service or apprenticeship. as well as the person
to whom the services of the workman are so lent
or let on hire.

2.25. For the sake of convenience of reference, it is desir-
able to insert in section 2, a definition of "monthly wages", an
expression deﬁned in section 5. The following new clause
should, therefore, be inserted in section 2(1) after the deﬁnition
of "minor":---

"(fif) 'monthly wages' has the meaning assigned to it by
section 5.

2.25. In the deﬁnition of the expression 'partial disablernent',
which is. to be found in section 2(1) (g), there is scope for imp-
rovement in one respect. The deﬁnition does not separtely
deﬁne the expressions 'permanent partial disablement' and 'tem-
porary partial disablement'. The expression 'permanent partial
disablement' is used in the proviso to the definition, which,
however, does not bring out the idea that it is deﬁning 'perma-
nent partial disablement' as a apecies by itself. A It may be noted
that the expression 'permanent partial disablernent' -occurs else-
where in the Act.' It Would, therefore, be desirable to recast
the latter part. of-the deﬁnition so as,..to bring out this idea. This
could be done by_converting the proviso-to section 2(1) (g) into
an Explanation, as follows :-- -

"Exp!anation.¥--Evcrj; injury speciﬁed in Part'II of Schedule
I, shall be deemed to result in permanent partial disablcmcnt"

11. see, for exsigﬁ section -40 )(c).

Recom-
mendation.

Section
2(1)(fff)
(New)-
Deﬁnit ion
of "month-
ly wages."

Section 2

(1) (3) par-
tial disable-
m-ant.

At the same time, the expression 'permanent partial disable-
ment' may be deﬁned by adding a new deﬁnition--cla.use (g)--
as follows:---

"(gg) ' ermanent partial disablement' means partial dis-
ab ement of a permanent nature and i_nc1udes such
injury as is referred to in the Explanation to clause

Sec 1ion 2.26. The deﬁnition of 'total disablement' in section 2(1) (i)
2(1)(§)m;a1leaves room for improvement in so far as the proviso seeks to
disablement deﬁne the scope of 'permanent total dlSE1lJ].Bl'l'l6l].t',_ but does not
directly deﬁne it. The expressionis used elsewhere in the Act}
In the interests of clarity, it is better to revise it on the same
lines as has been recommended above with reference to 'partial

disab1ement'.2

Workman 2.27. The expression 'workman' is deﬁned as follows :

"(n) 'workman' means any person (other than a person
whose employment is of a casual nature and who
is employed otherwise than for the purposes of the
employer's trade or business) who- is--

(i) a railway servant as deﬁned in section 3 of the
Indian Railways Act, 1890, not permanently emp-
loyed in any administrative, district or subdivi-
sional ofﬁce of a railway and not employed in
any such capacity as is speciﬁed in Schedule II.
or

(ii) employed on monthly wages not exceeding ﬁve
hundred rupees, in any such capacity as is speci-
ﬁed in Schedule II, __

whether the contract of employment was made before or after
the passing of this Act and whether such contract is expressed
or implied, oral or in writing; but does "not include any person
working in the capacity of a member of the Armed Forces of
the Union; and any reference to a worlcman who has been in-
jured shall. where the workman is dead, include a reference to
his dependants or any of them."

Section 2.28. The deﬁnition of "workman"-'4 is obviously a very in-
2(l)(n) De- volved one. This complexity is due to the fact that too many
ﬁnitjgn of ideas--positive and negative----are packed into one sentence
workman» regardless of the convenience of those who have to read the Act.
In the ﬁrst place, strain is caused by the excluding words "other
than a person" etc., which interrupt the mind of the reader who
wishes to proceed with the positive part of the deﬁnition. Sec-
ondly, repeated recurrence of negative ideas in that part of the

1. See, for example, section 4(l)(b). mu
'. See discussion relating to section 2(l)(g).
'. Pam 2.27, supra.

deﬁnition which pertains to railway servants, creates confusion.
Thirdly, the clariﬁcatory portion represented by the words "whe-
ther the contract of employment" etc. tends to' increase the pro-
lixity of the deﬁnition; and, ﬁnally the non.-inclusive portion
(relating to Armed Forces) gives the impression that the deﬁ-
nition is about to end, but immediately there is a provision for
the construction of reference to a workman who is dead,--_a pro-
vision which is conﬁned to very particularised situations.

2.29. Some complexity may be unavoidable in a legal docu-
ment but still there is scope for improvement. An attempt to
disentangle the various elements which cluster together in the
present clause, is worthwhile.

2.30. So much as regards points of drafting. Some nomts
of substance may now be dealt with concerning the deﬁnition

of "workman".

2.31. The cl_ause has a separate category of railway servants
under which a railway servant as deﬁned in the Railway Act, is
a workman subject to two conditions (which we shall discuss
later). Section 3(7) of the Railways Act. deﬁnes a railway
servant as follows:----

" 'Railway servant' means any person' employed by a
railway administration in connection with the ser-
vice of a rai1way".1

There are two condition in the c1ausc_in the Workmen's
Compensation Act. The ﬁrst is that railway servants who are
"permanently employed" in certain oﬂices are excluded. (Rough-
ly they are persons who perform inframural duties). The
second is that persons employed in a capacity mentioned in the
Second Schedule are exclud.ed-----the object, of course, being
that if they fall under the Second Schedule, they should satisfy
the wages test.

As regards the ﬁrst condition, in our view, the present word-
ing referring to persons "permanently employed" in an oﬁice,
is intended to refer not to their permanent or temporary status,
but to the sphere of their duties. It is meant to refer to persons
who usually discharge their duties within the four walls of an
administrative oﬂice,--~--persons with "intra-mural" functions.
This should be clearly brought out.

Also, to avoid doubts as to whether a railway servant can
fall under the general category--as is the obvious inlention--
slight verbal changes are desirable by way of clariﬁcation.

1. Section 3(7), Railways Act.

Point of
Subst anee.

2.32. Since this clause represents a special category, it should,
it it is retained,' appear after the general one relating to emp-
loyees in general.

2.33. The above comments for verbal improvements (with
reference to the category of railway servants) have been made
on the assumption that the present separate category of railway
servants is to be retained. It seems to us. however, that this
matter itself requires serious consideration. The present scheme
seems to constitute a discrimination between nailway servants
and other workmen similarly placed. A railway servant (if he
satisﬁes certain conditions mentioned above) is not subject to a
maximum regarding the wages. Others are so subject. This dis-
crimination is difficult to support in the face of article 14 of
the Constitution and, on'the merits, appears to be unjustiﬁed.
We are therefore of the view that this discrimination should
be removed and like railway servants, other employees (if they
satisfy the other conditions of the deﬁnition) also sho-uld be
brought within the Act if they fall within the Second Schedule
irrespective of their wages.

2.3,3A. Finally we propose certain structural changes in the
deﬁnition.

ReC0m"1°"' 2.34. In the light of the points discussed above, the follow-
daticm, ing re--draft of the deﬁntion is recommended:---

Re--draf£ of a'ef:'m'Iz'or: of "workn1an"9 "workman" means
any person employed in any such capacity as is
speciﬁed in Schedule II.

First Except'i0n.---A person whose employment is of a
casual nature is not a workman if he is employed
otherwise than for the purposes of this en1ployer's
trade or business.

Second Excepri'on.--A person working in the capacity
of a member of the Armed Forces of the Union is
not a workman.

Explanation I.------It is immaterial whether the contract of
employment was made before or after the passing
of this Act and whether such contract is expressed
or implied, oral or in writing.

Explanation II."--Any reference to a workman who has
been injured shall, where the workman is dead, in-
clude a reference to his dependants or any of them."

[Item to be added to the Second Schedule]

. For a contrary suggestion, see para 2,33, .r':1ﬁ'n.

2. If this re-draft is adopted. the Second Schedule should also be amended
to add "railway servant".

.1}-

We also recommend that the Second Schedule should be
amended to add 'railway servant' as helow:--

"33. employed as_ a railway servant as deﬁned in section
3 of the Indian Railways "Act, 1890:--

Provided that a railway servant ordinarily discharging
duties in any administrative. district or sub--division-
a.l oﬂiee of a railway . . . shall not be workman by
virtue of this item." '

2.34. We now eometo section 2(2). There are
of the employer is material} The activities carried on by a
local authority may or may not amount to trade or business."
--_In the case of Government Departments also, the activity is
often not and economic activity" analogous to trade or business.
Nevertheless. section 2(2) makes a wide provision whereunder
activity of a local authority or of a department acting on behalf
of the Government is considered a trade or business.

-' t The reason for the provision is that in the case of activities of
the Government. or a local authority, it would be difficult to dis-
tinguish between activities by way of trade or business and other
'activities.

We do not wish to disturb the substance of the provision.
But we think that in section 2(2). the Government should be
mentioned before the local authority. We are also of the view
that the present wording in this respect which refers to a "de-
partment acting on behalf of the Government" is not appro-
priate and should be replaced simply by the words; "the Gov-

ernment".

2.35. Accordingly we recommend that section 2. sub--sec-

tion (2), should be revised as i":ollows:--

"2(2) The exercise and performance of the powers and
duties of the Government or of a local authority
shall, . . . . forythe purposes of this Act, unless a
contrary intention appears, be deemed to be the
trade or business of such Government or autho-
rity. . I. . ."

1. B.G. section 2(1), deﬁnition of "workn'tan"_.
_ Second Schedule, item 4. v _

'. As lo "business", see A.I.R. 1963 S.C. 554.

'. Sec A.l.R._ T970 S.C. 1407, 1416 (case regardingthe Safdarjung Hospital),

New Delhi. . -- ..

28 M of Lats/74--4

and section 12, and the

_ certain Section 2(2).
. provisions of the Act where the existence of "a trade or business"

E.ecom.n:ten-
dation.

Section 2(3) 2.36. Section 2(3) reads thus:
Power to

notify "(3) The State Government, after giving. by notiﬁca-

ﬂﬁr °°°"' tion in the Olﬁcial Gazette, not less than three

1) Ions' months notice of its intention so to do, may, by a
like notiﬁcation, add to Schedule II any class of per-
sons employed in any occupation which it is satisﬁed
is a hazardous occupation, and the provisions of this
Act shall thereupon apply within the State to such
classes of persons :

Provided that in making such addition the Slate Govern-
ment may direct that the provisions of this Act shall
apply to such classes of persons in respect of speci-
ﬁed injuries only." '

Proposal 2.37. This sub-section thus confers a power on the State
eivins thﬁ Government to add to the Schedule. We have considered the
f1:='"('_?£n"_"'l question whether such a power should not be given to the Cent-
GW, ms: ral Government also so that in the case of employmcnts which
' ' have been found to be hazardous and the importance whereof
is not conﬁned to a particular State, it would not be necessary
for each of the State Governments to take separate action. No
doubt the vesting of the power in the State Government, as at
persent, has one advantage namely that the State Government
can utilise its special knowledge of local conditions. Neverthe-
less it appeared to us that the question whether such a power
should be given to the Central Government also could be use-
fully considered.

Amendrglent 2.38. We have considered the matter in all its aspects and
gs 5':i°"9ﬂ we recommend that the power should vest concurrently in the
am: °""" Central Government and in the State Governments. Such an
' amendment will secure uniformity where necessary. At the
same time it will retain the present power of the State Govern-

ment which enables prompt action to meet local needs.

Constitu- 2.39. Before coming to our conclusion in this regard, we
'~'f0"--'=1l have carefully considered the constitutional aspect. In our view,
:i"('1'e':"gd°°"' the vesting of the power concurrently in the Central Govern-
' ment and the State Governments1 is not likely to conﬂict with

the scheme of the Constitution relating to the distribution of the

executive power-between the Centre and the States. The power

to add an 'employment' in the Schedule by a notiﬁcation is an
"executive" one. But it is permissible to vest an executive

power in the Central Government concurrently with the State
Governments. Subject to the provisions of the Constitution, the

executive power of the Union extends" under articfe 73(1) of

the Constitution to matters with respect to which Parliament has

power to make laws. But there is a proviso to this article

1. Para 2.38, supra.
E '. Article 73(1)(a) of the Constitution.

---.""~

_',, ....-..:=l:¢-r~ .

under which this executive power shall not, save as expressly
provided in the Constitution or in any law made by Parliamemt,
extend in any State to matters with respect to which the Legis-
lature of the State has also power to make laws, z'.e., matters
mentioned in the Concurrent List. The subject of workmen's
compensation is in the Concurrent List} Hence an executive
power relating to the Workmen's Compensation Act can be con-
ferred on the Central Government, if it is expressly so provided
in a law made by Parliament. It is true that the Workmen's
Compensation Act 1923, though a Central Act, is not a low
made by Parliament. But any amendment new to be made in
that Act by Parliament will be a law made by Parliament and
will therefore satisfy the above constitutional requirement.

Under another provision of the Constitution9--~--article 162--
the executive power of a State extends to matters with respect
to which the Legislature of the State has power to make laws
but the proviso to that article also enacts that in any matter
with respect to which the Legislature of a State and Parliament
have power to make laws, the executive power of the State shall
be subject to, and shall be limited by, the executive power ex-
pressly oonferred by the Constitution or by any law made by
Parliament upon the Union or authorities thereof. An express
provzirion conferring concurrently on the Central Government
the power under section 2(3) would therefore seem to be
consistent with the scheme of the relevant provisions of the
Constitution as analysed above.

Thus there is no constitutional diﬁiculty if the power to
notify the employment is given concurrently to both the Gov'-
ernments.

2.40. We are also of the view that the State Government
should, before issuing a notiﬁcation under section 2(3), send
an intimation to the Central Government so that the latter could
consider the feasibility of making the addition in the Schedule
on all India basis.

2.41. In the light. of the above discussion, we
that section 2(3) should be revised as follows:----

"(3) The Central Government or the State Government,
after giving by notiﬁcation in the Oﬂicial Gazette,
not less than three months' notice of its intention so
to do, may, by a like notiﬁcation, add to Schedule:
II any class of persons employed in any occupation
which it is satisﬁed is a"hazardous occupation and
the provisions of this Act shall thereupon apply

recommend

1. Seventh Schedule, Concurrent List, Item 2.4.
'. Article 162 of the Constitution.

State
Gov6l'11-
merits
should give
intimation
to Centre.

Recommen-
dation to
revise sec-
tion 2(3).

40 .

Witfziri the territories to uwttich this Act e.2:tends--o1'
withi!1_;t the State as the case may be, to such classes
of persons :

. Provided: that in inaking additton the Central! Government
_or_. th Stgte Gogetnment may .di1'_ect that the prqvisions of this
Act 's?|aH apply to such classes of persons in respect of speciﬁed
injyq-ie_3t_-gn1y;_.-, - . _ t - . .

r' ;'Pravéa'ed.:further that the State Government shall, before or
'at-; -the time --of- issuing the notification, forward 'an
z'ntimatian thereof to the Centraf Government."

7 section 3 where the

. CHAPTER 3."

'RIGHT TC) COMPENSATION

3.1. We propose to devote this Chapter to a discussion of
certain basic questions concerning the workman's right to com-
pensation cleait-with-in sections 3, 4 and 4A of the Act. The
employerfs. liability to- pay compensation is the subject-matter of
scope of that liability is deﬁned elaborately.
The -amount of compensation forms the subject--rnatter of section
4. Section 4A provides that compensation payable under sec-
tion 4 is to be paid as soon as it falls due. The three sections
occupy two printed pages in the Act; we shall concentrate on
such of them as are material. -- - '

3.lA._ The main paragraph of section 3(1) creates the right
to compensation. If a personal injury is caused to a workman
by an accident 'arising out of' and 'in the course of_ his emp-
loyinent', his employer will be liable to pay compensation in 'ac-.
cordance with the provisions of the Chapter.

3.J.B. We notice that a workman who is injured does not get
medical expenses under the Workmcn's Compensation Act. We
suggest to Government that the Ernployees' State Insurance Act.
1948 which is more liberal in this regard, should be extended
to more cmployrnents. We cannot recommend an amendment
in the \Vorkmcn'.«. Conipeiisatioii Act on this point because such
an amendment would practically assimilate the Workmen's Com-
pensation Act to the Employees' State Insurance Act. But.
having regard to the considerations of social justice, it is in our
view highly desirable that this aspect of the matter be attended
to and the question of extension of the Act of 1948 to various
eznploymcnts to which it does not now extend should be actively
considered. i - '

3.lC. Section 3(1) proviso (:1) enacts .1hat,the employer
shall not be liable to pay compensation in respect of any iniury
that does not result in the total or partial disablgement of the
woi'kn1a.n'for a period exceeding three days. The reason is
obvious.

' 3.2: Under_ section 3(1), proviso clause (b')(i)
sation is hatred for a non--fatal injury if the .accident (which
caused the injury) is "directly attributable to" the workman
-having been 'under the inﬂuence of drinks or dl'pgS.: This clause
of the proviso requires some examination. The proviso, we

conipen-

II1l.1'0tiT.lC-
I my

Section _
3(1). main
para.

Medicalcx-
penses
question
consideret.
Suggestion
to extenn
1~I.S.I. Act

Section
3(1), _ pro-
viso (ail.

Section 3
(1) proviso
(b)(il---In-
fluence of
drugs or
drinks.

Possible jus-
tiﬁcation
for the»
present
rule.

Recommen-
dation 3(1),
proviso

(b) (5)

Provisions
in the Ern-
ployces'
State Insu-
rance Act,
1948.

Section
51A, Em-
ployees'
State Insu-
rance Act.

presume, postulates that the accident did arise "out of, and in
the course of" the employment.
outside the section and would need no proviso to exclude it.
But it excludes compensation on the ground that the accident
is directly attributable to the situation mentioned above.

3.3. What .. then is the rational for barring conipensation
in the situation referred to above '? Perhaps one possible justi-
fication would be that since the accident was directly atlributable
to the physical condition of the workman, the employer should
not be made liable to compensation even though the accident
arose out of and in the course of the employment. In our view,
however, the fact that the workman by his (drunk or drugged)
condition contributed to the accident, should not justify the ex-
clusion of compensation at the present day. Social justice
requires that he should be compensated.

3.4. Another possible justification for the present rule could
be that the workman has no business to get drunk while dis-
charging his duties. This also should hardly suffice to deprive
him of compensation once he is injured. For fatal injtlrics, the
legislature has already taken a liberal attitude (so that the work-
rnan's fault may no_t be visited on his dependants). The same
approach should be extended to non--fatal injuries.

3.5. and 3.6. In view of what is stated above, We recom-
mend that section 3(1), proviso (b) (i), should be deleted.

3.7. At this stage we would like to refer to several provi~
sions1 of the Employees' State Insurance Act 1948 and con-
sider how far their principle is worth introducing in the
Workrncn's Compensation Act. Primarily the object of these
provisions is to widen the scope of the expression "course of
employment" or to eliminate certain defences or to facilitate
the proof of certain facts. Some of these deal with matters not
dealt with in the Workmen's Compensation Act, while ot'::ers--
e.g., section Sl--B--reversc the position under the Workmen's
Contpensation Act.

3.8. We shall first take up section 51A of the Employees'
State Insurance Act 1948 which provides as follows ----

"S 1A. For the purposes of this Act, an accident arising _

in the course of an insured person's employment
shall be presurneti in the absence of eVide'nce't0 the
contrary, also to have arisen out of that employ-
merit."

1. Section 51 Auto 51 D, Etnploycr-Slate Instnrance Act. 1945." H

Otherwise the case would be i i

'- in the latter Act is

It will be noticed that while section 3(1) of the Workmen's
Compensation Act requires proof of two facts} the above sec-
tion of the Employees' State Insurance Act renders proof of one
fact unnecessary' . We are of the view that since the provision
at beneﬁcial one and obviously serves social
justice, it should be adopted.

3.9. Of course it is to be noted that before a presumption under
the section can be raised, it must be proved that the accident
arose "in the course of the employment". The words "arose in
the course of", in section 3(1) of the Workmen's Compensation
Act, 1923, have been generally' construed as referring to the
time, place and circumstances of the employment. It is only
when these three links are established that the casual connec-
tions required by the words "in the course of" can be presum-
ed.

3.10 to 3.15. It may also be noted that section 51A of the
Employees' State Insurance Act is ultimately derived from an
English provision." Under the Workmen's Compensation Act,
the burden of proving that the accident arose "out of" and "in the
course of" the employment is on the employee. Under discussion
in. Section 51A, employees' State Insurance AC; 1948 although
the burden of proof that the accident arise "in the course of"
the employment still lies- on the claimant, the burden of proving
that it arose "out of" the employment has been shifted.

3.16. According to the Supreme Court judgment in Mackin-
non Mackenzie case,' the words "in the course of employ'
ment" in the Workmen's Compensation Act, 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 the
employment" are understood to mean that "during the course
of the employment", injury has resulted from some risk inci-
.ric~.:ital to the duties of the service which, unless engaged in the
duty owing to the matter, it is reasonable to believe the work-
man would not otherwise have suffered. In other words, there
must be a,- casual relationship between the accident and the
emP1°Yment, that is, if the accident had occurred on account
of a risk which is an incident of the employment, the claim for
compensation must succeed unless the workman has exposed him-
self to an added peril by his own imprudent act. This is an
interpretation of the existing section. After the proposed
amendment. the burden of proof will be shifted, as explained
above." I

1. P:1(ra_"i.IA,".r-u_r_rra.

'. See para 3.34, irtfra.

9. Section 7(4). National Insurance (Industrial Injuries) Act, 1946 (now
replaced by the 1965 Act.)

'. Macirinnon Mackenz:'e vs Ibrahim .l'.r.rar.'. A.l.R. 1970 SC 1906. 1908. para
.16 )'(l'ollows I917 A.C. 352). (Case under Workmen's Compensation
Cl .

5. Para 3.15, .5'ﬂp:'r:.

Connection
between
"course of
and "out
of Presu-
mption in
section Sla.
Employees
State Insu-
rance Act,
1948.
Origin of
section 51A

Meaning of
the expres-
sions "in
the course
of and
"out of .

A_ verbal 3.17. Before adopting section 51A of the Employees' State

'1;';'r'l'i'n°';f;;_ Insurance Act however, a verba1_point should be considered.

"on 5lgA_ The words "in the absence or evidence to the co_ntrary"., which
occur in that section should, while adopting that section, be re--.
placed by the words "until the- contrary is proved". The latter.
formula is more in consonance with Indian legislative practice.
In fact the words "shall presume" indicate a rebuttable presu-
mption and no express provision allowing proof to the contrary
is needed. "However it is desirble to have these words in
order to- avoid ambiguity.

Re'-}0"1"1°"' 3.18. In View of what is stated above, we are of the opinion
d'"'°"' that section 51A of the Employees' St:1te'Insurnnr:e Act may be
adopted with the verbal cheinge.' suggested above."

Emm of l 3.19. We proceed toldeai with another 'restriction on the

, _ right to compensation winch is to be iound in the C.'U.~J.1Iig sec-
""""] d'5' tion. Under section 3(1), proviso (b)(ii), the right in com-
0b°'"eﬂC"=- pensation is barred in respect of any injury not r.-.-zultjng in
death caused by an accident which is directly attributtmle to-----

"the wilful disobedience of the workman to an order
expressly given or to 11 rule expressly framed for
the purpose of securing the safety of workman".

I 3.20. The position in this respect under the Employees'
S°Ct10I15fB State Insurance Act is different.''--4 The relevant section of
E.S.I.Act. that Act is as foIIows:----

"51-B. Accidents happening while acting in breach of regu-
lations, eIc.:

An accident shall be deemed to arise out of and in the course
of an insured persons's employment acting in contravention of
the provisions of any law applicable to him or of any 0rdt:rs
given by or on behalf of his employer or that he is acting with-
out instructions from his employer, if

(a) the accident would have been deemed so to have
arisen had the act not been done in contravention
as aforesaid or without instructions from his emp-
loyer, as the case may be; and '

(b) the act is done for the purpose of and in connec-
tion with the employer's trade or business." -
1. Para 3.!'/, .\'upi'a. -
'. For the consequential re-draft of section 3, see para 3.33, inﬁra.
". Section 51B E.S. Act, i948.
'. For history. See para 3.23 inji-a.

3.21. The principle of this provision is, in our viewﬂworth.
incorporatin into the Workmen's Compensation Act having re-

gard to 1110 ern notions of social justice, according to which em-
phasis should not be. placed on "whether tl1e.workm.a.n' wasguilty
of thisor that wrong when the accident "occurred; What' is
materialis only the fact that the accident arose out of and in the
course of the employment.' t
3.22. There is an allied question to be_ considered, -Section
3(1), proviso (b) (iii). bars compensation in respect of a non-
fatal injury caused by an accident which is directly attributable
t0--
"the wilful removal or disregard by the workman of any
safety, guard or other device which he knew to have

been provided for the purpose of securing the
safety of workmen".
It is, in our view. desirable to remove this proviso. The

reasons for such an amendment are substantially the same as
those indicated above with reference to proviso (b)(ii)'-', to
section 3(1).

3.23. to 3.25. We shall now consider in deail certain points
arising out of section 51B of the Employees' State Insurance
Act." It would appear that the origin of seem.'-11 Sill lies in
a section of the National Insurance (Industrial Injuries) Act
1946, which itself was derived from section 1(2) of the Work-
men's Compensation Act 1925 derived from section 7 of the Act
of 1923. In some respects, the 1946 Actis wider than the
1925 Act but the differences are not material. for the present
purpose. The condition that the act must have been done for
the purpose and in connection with the employer's trade or
business which is found in section 51B of the Employees State
Insurance Act, 1948, appears also in the English Act i946 and
in the English Act of 1925. In fact in other rcspccis also
section 51B substantially follows the provisions in the English
Act of 1946.'-5

3.26. 'What has been stated in section 51B of the Emp-
loyees's State Insurance Act can be stated in a more direct
manner, by enacting that the fact that the rule or order in ques-
tion was transgressed is immaterial. 'I'h.at is a matter of form.

. See para 3.38 infm, For suggested additional section.
. See discussion as to section 3(!). Droviso ('o){ii) Para 3.19 to 3.21, scrpra.
. Para 3.20, supra.
. Section 8. National Insurance (industrial. lniuriosl Act. I946.

See also Noble v. Sorrrfzcrn Rail C'ampa.v:_v, (1942) 2 A.F.R. 383, 336, 387
(H.L-J-

.""-""~'i

Principle of

sﬁutioll 51 B
Worth gado-
pting.

Section
3(1), Dro-
viso {|:i)(iii}.

Suction SIB
E.S.l. Act

corisitli':I'L'd

in detail

.-'\Ll(_l[)li-(ill
of acction
5| ii consi-
dered Re-
C[LIli'EI11l:llt
of trade or
bl]si:iL'_~',s
not favou-
red.
Contained
in Section
SIB.

3.27. One question of substance however still remains. Is
it necessary to incorporate the requirement' contained in section
SIB that the act must have been done for the purpose of and
in connection with the employer's trade or business? This re-
quirement postulates two ingredients, ﬁrst that the employer
must have been carrying on a trade or business, and
that the act must have been done for the purposes of and in
connection --with the employer's trade or business. A trading
employer can take the defence that the workman's Act trans-
gressing his orders was not connected with the trade or busi-
ness. A non-trading employer, though liable generally for an
accident, can still take the defence that the workman has trans-
grcssed his orders.

3.28. In so far as this requirement postulates tha1: the main
object of the act which caused the accident was to further the
employer's business," the requirement is objectionable because
the proper enquiry should only be whether the act is within the
scope of the employment. The second question namely whe-
ther a non-trading employer should be brought within the pro-
viso, is of policy. In some cases the statute does make a dis-
tinction between trading employers and others. The
question whether, in this particular context, the distinction should
be maintained is one of policy. On the one hand, it can he
argued that if a non--trading employer, say, a doctor who emp-
loys a radiologist, is to be made liable, even where the particu-
lar act of the workman has been forbidden by him, some hardship
would be caused. On the other hand, it can be argued that a
workman who trausgresses a rule or instruction should, never-
theless be compensated under the Act so long as he dose not
go beyond the sphere of employment. Having carefully consi-
dered the matter, we are of the view that the requirement of
trade or business should not be adopted.

Contributory negligence should be no defence in cases other-
wise falling under the Act. Social justice requires that: the bene-
ficial provision in section 51-B of the Employees State Insu-
rance Act should not be whittled down, and the absence of a
connection with trade or business should be irrelevant. In fact
section 3 of the Workmen's Compensation Act, though it is
conﬁned to breach of instructions regarding safety devices. is
more liberal than section 51-B of the Employees' State Insurance
Act in this respect. As a result we recommend that section
51-B should be adopted after omitting this requirement. Also
we recommend that Parliament may consider the desirability of
deleting clause (b) of section 51--B of the Employees' State Insu-
rance Act.

1. Para 3.20, supra.
5, 2Bm"ie_T V, Orhmvden. (I925) 3 K.H. 325.

3.29. We shall novv proceed to section 51C of the _Emp-
' ees"State' Insurance Act 1948 which deals with accidents
w_ ' ii" 'happen'1 while the workman (insured person) IS travel-
ling in the employer's t:ransport._ Broadly stated, the eﬁect of
the section is that if an accident occurs while the workman, with
the express or implied permission of the employer. travels as
a passenger" by any vehicle to or from his place of work, he is
covered even though he is under no obligation to his employer
to travel by that vehicle, provided certain conditions are satis-
fied. This provision is subject to certain conditions. The first
condition is that the accident is such as would have been deem~
ed to have arisen out of and in the course of his employment,
if. the workman had been under an obligation to his employer
to travel by that vehicle provided certain conditions are satis-
time of the accident the vehicle was being operated by or on
behalf of the employer (or some other person under

ments with the employer) and the vehicle was not being operat-
ed in the ordinary course of a public transport service.

3.30. This section corresponds to section 9 of the National
Insurance (Industrial injuries) Act 1946 (Eng). There was
no corresponding provision in the Workmen's Compensation Act
of England. As a general rule, a man's employment does not
begin until he has reached the place where he has to work and
it does not continue after he has left it." Where there is no
"place of duty", one has to read this general rule in relation
to the ambit, scope or scene of duty. Certain exceptions were

recognised to this general rule. Mainly those exceptions re-
late to--

(i) time spent in transport provided by the employer/'
If the workman was under obligation to use it,-

(ii) means of access to, or

egress from the place of
work:

(iii) attendance before starting time;

(iv) return to_ the employer's premises. even after
termmation of the em

justified by the terms

the
ployment, for some purpose
of the employment;

(V) compulsory use of premises
Ioyer--for example, where.
active work, the employer is
premises as a resting place.

provided by the emp-
between the hours of
required to use certain

1. The proper word is "occur".

'. Drivers are excluded.

. N'aIir:=r.'cm V. C'o{'e.r. (I945) I All E.R:' 227. 229.

Accidents
oecwing
in the cow
rs: of tran-
sport to or
from Plﬂﬁ
oi' work
(Section
51C, Emp-
loyocs ST-I113
Insuranoﬁ
Act 1945)

55+'

Tat of obii
galion to

telfiii Eng-
liﬁh-casﬁs.

Test of
perntission
later subs-
tituted by
Statute in
1946.

- 3.31. We are now concerned with the ﬁrst oi the exceptions
nientioned' ahove'na.me'1y time spent' in transport prov'1dod- by
employer. __According to thei'case law under the (Engﬁsh)

_ Workmen's Compensation Act or-_-1~9£5; the tinle spent.-in ti:ans.a'
port provided hry or on behalf of therentployer, was'=ti:gﬁ_Ided'
as an exception and must be included in tiiefperiod of en1ploy--,_
merit, if there was an express or i'mpl'ie'd oblig:an'on'-on the work-;
man to use the transport so proidded.' . U_nd&_'»I the English Act'
of 1946 relating to national insurance, hovi'et«'er, no obligation
to use the transport is required in order that the accident be
deemed to have arisen out of and in course of the employment.

3.319.. Thus the statutory provision in the Engiisii Act" of
1946 which has been adopted in the Employees State Insu-
rance Act 1948, section SIC, enlarges the scope of the excep-
tion recognised by judicial interpretation of the Work1nen's Com-
pensation 'Act by removing the requirement of obligation to use
the transport. Instead it is now provided that th: Wﬂfiimé-til
must be travelling as a passenger by the particular vehicle to
or from his place oi work with the express or implied permit-
non of me employer. Need for an obligation is expressly ruled
out. But certain other conditions have to be satisﬁed.' We are
in favour of adopting the principle of the provision in section
5] --C. Hence again the drafting could he simpliﬁed," and the ﬁrst
requirement" that the accident must be such that it would have
been deemed to have arisen if the employer had been under an
obligation to provide the transport, can be omitted, as merely
repeating what is already rcquircci by the ingredient indicated by
the words "out of and in -the counse of tho cmp1o_vmi:nt"'.

3-32. The second requirement? namely that at 171-: time of
the accident, the vehicle was being opcrated by or on behalf of
the employer etc.. and was not being operated in the ordinary
course of public transport service, raises a question of policy.
On the one hand, it can be argued that such accident as arise
while the workman uses a public transport system or transport
not provided by the employer, are not hazards created by the
employer but are hazards which the workman has to face,
though in a sense for the purpose of the employment. it can
be argued that this hazard is common to the particular work-
man and to persons who are not workman within the Act. On
the other hand, it can be argued that it is not 'proper that an
injury suffered in furtherance of the employment should escape
the protection given by the Act.

. Saint Helena Cal'a'1'.or_y ('0. V. H'.=H-'frr0rr. ([934] .-'\.C'_ 59 fH.I..1.
Section 9. N-_1tiona.=' inwrancse (industrial lniuri-cs': Act. I')-5.6,
. Section 9. '--'~laiiona~'. Insurance ilnriustr-ial lri_i:.:rics} Act. 1046.
T hose have been set out above. Para 3.2.9. ~.'Ll';.ITi1.

. Compare discussion as to section SLR or' Ike Act of'i948.

. para 3.29, sfrrpra.

. Para 3.29, supra.

-Jo«.:i_Luu..nl

' or from work.

_ clent'._s.
'ac-mp1oyrnent--related. are new subject to the same rules in Nether-

"and (3) the place where the employee

'Jr

3.32A. In this c_onnection it would be of interest to com-
pare the position prevailing in some of the legal systems on the
Cozitiizer-1. There is a great deal of diversity among the six
legal systenis on the C'ont'ment----Beigium, France, Germany,
Italy, Lzxeniberg and Netherlands,--~on the subject of workmens
cornpensnrioir rules in 'respect of accidents occuring outside
the employer's premises while the workman is on his way to
In' Italy and the Netherlands for example, there
are no statutory provisions at all on the 'subject. .But while
tl1e courts in Netherlands have by izidicicil irtterpretafion extended
the concept of "employment--related accident" to include acci-
dents rcuring on the way between an employee's residence and
his place of employment, the Italian courts have found it im-
possible to adopt such a liberal viewl.

In NC-tlrerlands however the legislation of 1967 abolished
the ':ar"3.'ioi1nl distinction between industrial and ordinary acci-
All accidents, from whatever cause, whether or not

lands. Consequently the problem of. way--to--work accidents has
become academic. in the Netherlands*'. Germany has covered
trips rnatic For the purpose of keeping work--relates nr.ea'.i'cal ap-
pur'rz,m2c?.n!,s. France and Belguim are more liberal since they
cover trips between the place of work and the place where the
employee takes his meals".

In this connection, attention may be drawn to the fact that
the international Labour Organisation in 1964 adopted a eonve-n--
tion calling for compensation of way-to--work accidents. A re-
commendation adopted at the same time (1964 defines more
explicitly the kind of trips which are to be covered under work-
merfs conipensation systems. T he}-' include trips between the
place of work and (I) the employee's permanent or temporary
resiclence; (2) the place where the employee takes his meals;
ordinarily receive his
The exact recommendation is as f0llows'l:«-

"5. Each Member should, under prescribed conditions
treat the following as industrial accidents :

salary.

(a) accidents, regardless of their cause, sustained dur-
ing working hours at or near the place of work
or at any place where the worker would not have
bcenexcept for his employment; l

-1. Book Review ('Winter l97é.._)_A.-Xnieric-ai':lodi'nal -Ct1IIlp&]'alIl\-1'-K: Law,
I64, 105 (Review ol' Christian Fabry_ "Les Accidents De Traijel").

'-'_ Book Rexicw in (Winter-1972.) American Journal Comparative Law [64,
I65. ' y

3. Book Review, in. (Winter 1972) American Journal, Comparative Law,
1934,1659. V - I l

'. l.P.0. Conventions (1919-1966}, page 1094, Convention of 1964 on Emp-
loyment Injuries, Recommendation No. 121. i -'

Rnsition on
the Contin-
cznt as
to injuries
on way to
work.

Emergency
(Section 51
D, Employ-
eo's State
Insurance

Act, 1948}.

(b) accidents sustained within reasonable periods before
and after working hours in connection with trans-
porting, cleaning. preparing, securing, conserving,
storing and packing work tools or clothes',

(e) accidents sustained while on the

direct way between
the place of work and --

(J) the employees' principalior secondary residence:
or

( ii) the place where the employee usually takes his
meals; or

(iii) the place where he usually receives the remune-
ration."

3.33. Having carefully considered all aspects of the
matter, we are of the view that section 51 C
of the Employee's State Insurance Act should be adopted
with modiﬁcation that it should not be necessary that the trans-
port is provided by the employer, if the workman is travelling
directly to or from the place of employment.

3.34. We now come to another point relevant to the expres-
sion "course of employment". It relates to action by way of
rescue or otherwise in an emergency. At common Law the
voluntary assumption of risk is regarded as justiﬁed (and hence
not a bar to a claim in tort) in certain situations. Chief amongst
these _are the situations where a person is under a general or
moral duty to save others from peril' (e.g., a policeman stopping
running horses in a busy street), or is under a legal duty to pro-
tect property, e.g., his master's= (night watchman going back into
burning premises) or otherwise acts instinctively" (wife trying
to save her husband from falling glass). Mostly these are situa-

tions of emergency. They have come to be known as "rescue"
cases.

3.35. These cases have a rationale. In
phrase of Cardozo', "Danger invites rescue.
tress is the summons to relief.
reactions of the mind in tracing

the memorable
The cry of dis-

The law does not ignore these
conduct to its consequences......
The risk of rescue, if only it be not wanton, is born of the occa-
sion. The emergency begets the man. The wrong-door may not

have foreseen the coming of a deliverer. He is accountable as
if he had."

1. Haynes v. Harwood, (1935) I K.B. I46 (C.A.).
'. D Urao v. Samson. (1939) 4 All E.R. 26.
'. Brandon v. Gxbarue Carrel': & CO.. (1924) 1 K.B. 548.

'. Wagner v. International Railroads, (1921) 232 N.Y. 176 (New York Court
of Appeals).

.J"'."

3.35A. Section 51D of the E.S.I. Act 1948 which is based
on the same principle, is as fo1lows:--

"SID. An accident happening to an insured person in or
about any premises at which he is for the time being
employed for the purpose of his employer's trade
or business shall be deemed to arise out of and in
the course of his employment if it happens while
he is taking steps on an actual or supposed emer-
gency at those premises, to rescue, succour or pro-
tect persons who are or are thought to be or pos-
sibly to be injured or impcrilled or to avert or mi-
nimise serious damage to property."

3.36. No such section was contained in the (English) Work-
men's Compensation Act but, in cases arising under these Act.-3,
a workman was not treated as acting beyond the sphere of his
employment and on his employer's work, if he voluntarily
did in an emergency, an act in the interests of his
employer outside the scope of his ordinary employment. Cour1:s
in England held, under the Workmen's Compensation Act, that
where the workman departs from the scope of his duties in an
emergency, the accident may be held to arise out of the em-
ployment.

Thus where an unskilled labourer assisted a machinist in a
difﬁculty and suffered injury, he was held to be covered'. "An
emergency is something which occurs unexpectedly. It does not
necessarily mean an occurrence giving rise to greater danger'?

3.36A, It appears to us that an express provision as to
emergencies, as in section SID, E.S.I. Act3, could be usefully
added to the Workmen's Compensation Act also. We do not
however consider necessary the requirement as to trade.

Subject to this modiﬁcation we recommend an adoption of
this section though in a simpliﬁed form.

338. In the light of the above discussion we recommend the
insertion' of the following new provisions5 :--

"3.(1A) For the purposes of this Act, an accident aris-
ing in the course of a workrnan's employment shall
be presumed, until the contrary is proved, also to
have arisen out of that employment.

1. London and Edfnborough Shipping Co. v. Brown (1905) 7 F. 488 (Scottish
Court of Session).

'. Deramody V. Higgs & Hill Ltd, (1937) 4 All ER. 379.

' Para 3.35A, supra. '

. These could be inserted in section 3 as sub-sections.

5, Section 3(1)(b), proviso' (ii) and (iii) to be deleted.

Section
51 D, E.S.I.
Act.

Decision
under the
English
Worlcmeufs
Compen-
sation Act
as to emer-
gency.

Provision

as to emer-
gency desir-
able.

(Compare
section 51A
E.S.I. Act,
1943).

(Com pare

section 51B.

E.S.I. Act,
1948).

(Compare

section 510

r5.s.r. Act,
I948).

Compare
section SH)
E.S.I. Act,

.I94S.

Sections
3(2) to
3(4).

'J I

3.(lB} An accident shall be deemed to arise out of and

in the course of a workrnan's employment: notwith-
standing that he is at the time of the accident acting
in contravention of the provisions of any law appli-
cable to him or of any orders given by or on behalf
of his employer, or that he is acting without instruc-
tions from his employer, or in disregard of any safety
guard or other device provided for the purpose oi'
securing the safety of workmen. if the accident would
"have been deemed so to have arisen had the act
not been done in contravention of the provision as
aforesaid or without instructions from the employer
or in disregard oi' a safety guard or other device as
aforesaid, as the case may be.

3.(lC) An accident occurring while a workman is. with

the express or implied permission of his employer,
travelling as :1 passenger by any vehicle riirectly to
or from his place of work shall. notwithstanding that
he is under no obligation to his employer to travel
by that vehicle be deemed to arise out of and in
the course of his employment whether at the time
of the accident the vehicle was being operated by
or on hehalf of his einployer or by any other person.

"Expianarion.--ln this sub--section. "vehicle" i'."lCit1Ci€S a

vessel and an aircraft.

3.(lD) Where an accident occurs to a workman in or

about any premises at which he is for the time being
employed, it shall be deemed to arise out of and in
the course of. his employment if it occurs while he
is taking steps on an actual or supposed emergency
at those premises,--_

"(a) to rescue. sueeour or protect persons who are

injured or imperilled or who, it is thought. might
possibly be injured or impcrilled, or

(b_)_ to avert or minimise serious damage to property."

This ﬁnishes the new provisions to be introduced and we
shall resume our consideration of points concerning section 3.

3.38A. Sections 3(2) to 3(4) will be discussed later'.

3.39. Under section 3(5) a workman has no right to com-

Section am pensation in_ respect of any injury if he has instituted "in a civil

court" a suit for damages in respect of the injury against the

employer or any other person. Conversely no suit for damages
shall be maintainable by a workman "in any court of law" in

respect of any injury, if he has instituted a claim to compensation

1. Para 3.47 ct seq, infra.

c-I-._u..... a-;u»e..-.».-

-wu.u_.-

tor that injury before a Commissioner or if an agreement has
been "come to" between the workman and the employer regarding
compensation for such injury.

3.40. Two points arise out of this sub-section------one of inter-
pretation and the other of verbal symmetry. The ﬁrst point is
what is the exact scope of the expression "civil court" in the ﬁrst
part of the sub-section or of the expression "court of law" in the
second part? In a Madhya Pradesh case', it was held that the
expression "civil court" includes a Motor Accident Claims Tn'-
bunal constituted under the Motor Vehicles Act so that obtain-
ing compensation from the Tribunal bars a claim for compensa-
tion under the Workmen's Compensation Act.

3.41. So far as this particular tribunal is concerned, there is
now a speciﬁc provision in the Motor Vehicles Act? which pro-
vides that where the death of or bodily injury to any person
gives rise to a claim for compensation under the Motor Vehicles
Act and also under the Workmen's Compensation Act 1923,
the person entitled to compensation shall receive compensation
under either of the Acts but not under both.

To avoid the possibility of a conﬂict of views on the subject
in respect of similar Tribunals it is in our view desirable----

(i) to deﬁne the expressions "civil court" as including
other Tribunals entitled to order payment of com-
pensation on death of or bodily injury to any per-
son; and

(ii) to use the expression "civil court" in place of the
expression "court of law", in the latter half of the
sub-section.

Consequentially it will be desirable to add an explanation
providing that "suit" includes claims for compensation for the
death of or bodily injury to a person under the Motor Vehicles
Act or any other law. We would like to make it clear that the
agreement referred to in section 3(5) should be registered.

3.42. We recommend the following re--draft of section 3(5)
in the light of the above discussion.---

Revised section 3(5)' "Nothing herein contained shall be
deemed to confer any right to compensation on a
workman in respect of any injury if he has instituted

1.' Radhabai v. Batu Ram, (1971) Jabalpur Law Journal 17, (Krishnan and
0221 JJ.), cited in the Yearly Digest (1971), Co]. 2609.

'. Section IIOAA, Motor Vehicles Act 1939.

'. This is not a draft.

'. To be re-numbered if the suggestion to re-number section 3(2) etc. as
section 3A is accepted. _

23 M of I..aw/14 -5

Two points
while arise.

Re-:c1nn1cn-

dation to

revize sec
ion 3(5).

Claims un-
der other
Acts.

Recommen-
dation to
insert new
subsection,

Section 3A
i.e. 3(2) to
section 3
(4) renum-
bored.

in a Civil Court against the employer or any other
person, a suit for damages in respect of the injury
and no suit for damages shall be maintainable by a
workman in any civil court in respect of any injury--

(a) if he has instituted a claim to compensation In
respect of the injury before a Commissioner; or

(b) if an agreement has been reached between the
workman and his employer providing for the
payment of compensation in respect of the injury
in accordance with the provisions of this Act
and has been registered under this Act.

ExpIanarion.-----In this section-

(a) 'civil court' includes a tribunal having jurisdiction to
entertain a claim for compensation in respect of any
injury; and

(b) 'suit' includes such claim before such tribunal."

3.4-2A. We are of the view that where a claim for compensation
for an accident which could have been made under the Work-
mens' Compensation Act, is made bcfore a civil court or other
tribunal, the provisions of the Workmen's Compensation Act as to
right to compensation (both of the workmen and the dcpcndants)
should apply, and the question of quantum of Compensation
should also be determined in accordance with the provisions of
the Workmen's Compensation Act. The principal idea is that
the beneﬁcial provisions of the Act excluding certain defences
should be attracted, as also provisions as to persons who are
dependants. Irrespective of the form, the principles governing
these matters ought to be the same in respect of such claims. The
new proposal will apply to claims before civil courts as well as
tribunals.

3.4213. Accordingly, we recommend that the following new
sub-section should be inserted in section 3:--

'"Where in respect of a death or personal injury, a claim
for compensation which could have been made under
this Act, is made before a civil court or before a
tribunal, the provisions of this Act as to the right
to compensation ( both of the workmen and of the
dependants), shall apply to such claim and the
amount of compensation shall also be determined
as far as may be in accordance with the provisions

of this Act."

3.43. Sections 3(2), 3(2A), 3(3) and 3(4) relate to cer-
tain occupational diseases. If certain speciﬁed conditions are
satisﬁed, the contracting of the occupational diseases by the work-
man is regarded as an injury by accident and there is a rebuttable
presumption that the accident arose out of, and in the course of,

the employment. This is the broad effect of these sub-sections.
In other words, to the concept of "personal injury caused by
accident" which is the basis of a claim under sub-section (1),
these sub--sections add the concept of disease subject to certain
conditions.

The conditions 'are numerous. In the first place the work-
man must be employed in an employment speciﬁed in the Third
Schedule. In the second place the occupational disease con-
tracted by the workman must be one which is speciﬁed in the
Third Schedule as "peculiar" to the particular employment. In
the third place, in case of employment in Part B or Part C of the
Third Schedule, the employee must have been in the service of
the employer continuously for a speciﬁed period but this re-
quirement (of continuous period) is to be read as subject to cer-
tain provisions which relax it or certain other provisions which
explain and interpret it. These matters of detail need not be
gone into at present.

3.44. To the list of disease given in the Third Schedule, the
State Government (in the case of Part A and Part B of the Third
Schedule) or the Central" Government (in the case of Part C).
can make additions after following the procedure laid down in
section 3(3). Where the requirement of continuous' period is
relaxed, there arises a need to distribute the liability between two
or more employers---a matter provided in sub-section (ZA).

3.45. Except as provided in sub-sections (2), (2A) and (3),
compensation is not payable for a disease unless the disease is
directly attributable to a speciﬁed injury by accident arising out
of and in the course of employment.

This brief analysis of the sub-sections in question is offered
to facilitate further consideration of the matter.

3.46. Now the first difficulty that one experiences when read-
ing the sub--sections concerning diseases is in the nature of a
strain caused by too many provisions crowded together as sub-
sections. The topic of disease deserves at least one separate
section for itself, so as to relieve the strain. Secondly, the first
proviso to section 3(2), (which is apparently in the form of a
proviso) really adds to the main provision regarding employments
in Part C, so far as the requirement of continuous minimum
period is concerned. It enacts a substantive provision having an
importance of its own. Broadly stated, its effect is that irres-
pective of the length of the continuous period of service, if (a)
a workman, while in the service of one or more employers in the
employment in Part C, contracts the peculiar occupational disease,
and (b) the disease has arisen out of and in the course of the
employment. then the contraction of such disease 'shall be deem-
edjo be anﬁi'njury_by accident' within the meaning of the section.

1. Para 3.43, supra.

Too many
"Provisions
crowded
together.

Need for
classiﬁca-
tion of the
provisions.

Recommen-
dations .

Occupation-
al disease
when to be
deemed to
injury by
accident.
[section 3
(2), main
para in
part]
[Section 3
(2), main
para in
part.]

This "deeming" is not subject to proof to the contrary. It is
desirable that the ﬁrst proviso to sub--section_ (2) should appear
as a substantive provision (for cmploytncnts in Part C), followed
by the other substantive provision in the main sub-section (for
ernployrnents in Part C). The second proviso to su_b-section (2)
is grammatically inaccurate though its sense is fairly clear. It
applies to employments in Part B or in Part C and provides for
cases where the contraction of the disease takes place after ces-
sation of the employment. Such a special provision isnecessaiy
apparently because the main sub-section--section 3(2)-----speaks
of "whilst in service".

3.517. It would appear that understanding of these sub-sections
would be facilitated if the four sub--sect_ions---3(2), 3(2A), 3(3)
and 3(4)-----were put in a separate section and some attempt was

made to classify the provisions into-----
(i) common provisions;

(ii) provisions applicable to employments in Part A of
- the Third Schedule;

(iii) provisions applicable to cmployments in Part B
of the Third Schedule; and

(iv) provisions applicable to employiuents in Part C of
the Third Schedule.

This [improvement is suggested in view of the fact that the pre-
sent arrangement hardly conduces to a clear understanding of
what is intended. Moreover in so far as the employrnents in
Part C are concerned, there are as already stated above1 not
one but two substantive provisions. 'Certain other drafting im-
provements in the second proviso' are also desirable.

3.48. On the above basis the following redraft of section 3(2),
(ZA), (3) and (4),--to be put as section 3A--is recommended."

3A(1): If a workman employed in any employment
speciﬁed in Part A of Schedule III contracts any
disease speciﬁed therein as an occupational disease
peculiar to that employment the contracting of the
disease shall be deemed to be an injury by accident
within the meaning of section 3, and unless the con-
trary is proved, the accident shall be deemed to have
arisen out of, and in the course of, the employment.

If a workman, whilst in the service of an employer
in whose service he has been employed for a continu-
ous period of not less than six months (which period

(2)

346, supi'a. l-a. See para 3.46 supra.
3. Existing section 3(5) could be renumbered as section 33.

shall not include a period of service under any other
employer in the same kind of employment) in any
employment speciﬁed in Part B of Schedule III, con-
tracts any disease speciﬁed therein as an occupatio-
nal disease peculiar to that employment, the contract-
ing of the disease shall be deemed to be an injury
by accident within the meaning of section 3, and
unless the contrary is proved, the accident shall be
deemed to have arisen out of and in the course of
the employment;

Provided that if it is proved----- 15°°'i°"

3 2 . Second
(a) that a worlcman, having served under any crnployczr {rgvim in

in any employment speciﬁed in Part B of Schedule 1'

III for (1 confinrwus period of six months1 has. Wm]

after the cessation of such service contracted any

disease speciﬁed in the said Part B as an O-CCIJDB."

tional disease peculiar to the employment; and

(bi that such disease arose out of the employment,
the contracting. of the disease shall be deemed
to be an injury by accident within the meaning
of section 3.

-(3) If a workman, whilst in the service of one or more lseclion
employers in any employment speciﬁed in Part C of 3 (2). main
Schedule III for such continuous period as the Cen-- para in part]
tral Government may specify in respect of each ' '
such employment, contracts any disease speciﬁed
therein as an occupational disease peculiar to that
empioyrnent, the contracting of the disease shall be
deemed to be an injury by accident within the mean-
ing of this section, and, unless the contrary is prov-
ed, the accident shall be deemed to have arisen out
of, and in the course of, the employment.

(4) If it is proved---- [Section

(3) that a workman, whilst in the service of one or 3 (2)3 ﬁrs'
more employers in any employment speciﬁed in T"°'"5°l
Part C of Schedule III, has contracted a disease
speciﬁed therein as an occupational disease pe-
culiar to that employment during a continuous
period which is less than the period speciﬁed
under this sub--section for that employment; and

(b) that the disease has arisen out of, and in the
course of, the employment,

the contracting of such disease shall be deemed to
be an injury by accident within the meaning of Sec-
tion 3.

1. Theupresent second proviso to section 3(2) is ambiguous in this regard.
but presumably the above is the correct reading. See section 3(2). main
para. _

[Section

3 (2), SBCD"l(l
proviso in
part]

[Section
3 t2A)]

[Section

-3(3)!

[Section
3 ( 4)l

Section 4(1)
General

(5)

(a) that a workman, having served

If it is proved--

under one or
more employers in any employment speciﬁed in
Part C of Schedule III for a continuous period
speciﬁed under .s'ub--secrion (3) for that employ-
ment, has after the cessation of such service, con-
tracted any disease speciﬁed in the said Part C as
an occupational disease peculiar to the employ-
ment; and

(b) that such disease arose out of the employment,

(5)

(7)

the contracting of the disease shall be decrncd
to be an injury by accident within the meaning
of section 3.

If a workman employed in any employment speci-
ﬁed in Part C of Schedule 111 contracts any occupa-
tional disease peculiar to that employment, the con-
tracting whereof is deemed to be an injury by acci-
dent within the meaning of section 3 and such em-
ployment was under more than one employer, all
such employers shall be liable for the payment of
the compensation in such proportion as the Com-
missioncr may in the circumstances deem just.

The State Government in the case of cmployments
speciﬁed in Part A and Part B of Schedule III, and
the Central Government in the case of cmployments
speciﬁed in Part C of that Schedule, after giving
by notiﬁcation in the Oﬂicial Gazette not less than
three months' notice of its intention so to do, may,
by a like notiﬁcation, add any description of em-
ployment to the employments speciﬁed in Schedule
III, and shall specify in the case of employments so
added the diseases which shall be deemed for the
purposes of this section to be occupational disease
peculiar to those employments respectively, and
thereupon the provisions of this section shall apply
as if such diseases had been declared by this Act to
be occupational diseases peculiar to those employ-
ments.

"(8) Save as provided by sub--sections (1) to (7), no

compensation shall be payable to a worlmlan in res-
pect of any disease unless the disease: is directly
attributable to a speciﬁc injury by accident arising
out of and in the course of his employment."

3.49. We now proceed to a consideration of the general
scheme of compensation.

The amount of compensation under

'°'''l''3"'e 33 sub--section (1) of section 4-------which is one of the longest sub-

to compen-
Sal;lOl'1.

sections in the Act---depends on a number of factors.

There is of course a common element of gradation name-
ly the amount of monthly wages; the amount recoverable in
respect of an injury (whatever its nature) is linked up with the
amount of monthly wages of the parncufar worker. This part
of the scheme is to be ascertained from the Fourth Schedule to
the Act. In addition, the amount of compensation varies ac-
cording as the injury has resulted in (_i) death (ii) permanent
total disablemerit (iii) permanent partial disablement or (iy)
temporary disablement. In the case of permanent partial dis-
ublement, again there is a distinction between an injury speci-
ﬁed in Part ll of the First Schedule and an injury not so speci-
ﬁed. lf the injury is so speciﬁed, the percentage of compensa-
tion is laid down by the Schedule itself while if the injury is not
speciﬁed, the percentage is not so laid down but is proportionate
to the loss of earning capacity permanently caused by the injury.
This might be expianied more elaborately.

In the case of death, a speciﬁed amount mentioned in the
Fourth Schedule is to be paid and in the case of permanent
total disablement also, a speciﬁed amount mentioned in the

Fourth Schedule is to be paid. No other complications enter
here.

But -in the case of a permanent partial disablement, the
amount speciﬁed for permanent total disablement is ﬁrst to be
taken into account and they a percentage is to be applied there-
to. The percentage given in the Schedule as appropriate to the
particular kind of injury is to be applied for this purpose. In
other words, the amount specified in respect of permanent total
disablement is to be reduced to that percentage. In the case of
certain injuries however no such

down and the appropriate percentage has to he arrived at on
the facts of each case.

In the case of temporary disablement whether
partial the amount speciﬁed in the
paid as a half monthly payment.

total or
Fourth Schedule is to 'be

3.50. The provisions as to compensation might appear to
be somewhat complicated but the complexity seems to be un-
avoidable. From the layrnan's point of view, structural im-
provements could be suggested only in' clause (:1) of section
4(1) relating to temporary disablement.

_ 3.51. Section 4(1), clause (cl),
mind when reading. In the interests
of the section it _is desirable to split up this clause into two
parts---(_i) the main proposition and (ii) the detailed provisions.
The main proposition could be retained as at present. The de-
tailed provisions could be transferred along with existing section

PC.

imposes a strain on the
of proper understanding

1. Sec discussion relating to section 4(I)(d), para 3.5], in

statutory percentage is laid t

Section
4 (1) (cl).

4(2) to a new section.' The revised provisions will then be

as follows:--
Revised section 4(1) (d)
[5°°"°" "((1) Where temporary disablement whether total or
_ 4 (1)(d)iI1 partial results from the injury and the injured
Dart] workman has been in receipt of monthly wages fall~
', . ing within limits shown in the ﬁrst column of Sche-
t dule IV----a half-monthly payment of the sum

shown against such limits in the fourth column to
be paid in accordance with the provisz'on.s of section
9!

Section 4A (to be added?)

(1) The half--monthly payment referred to in clause (cl) of
sub-section (1) of section 4 shall be payable on the sixteenth
day---

(i) from the date of the disablement where such dis-
ablement lasts for a period of twently--eight days or
more or

(ii) after the expiry of a waiting period of three days from
the date of the disablement where such disablemcnt
lasts for a period of less than twenty-eight days;

and thereafter half-monthly during the disablernent or
' during a period of ﬁve years whichever period is
shorter. (Provisoes as at present).

Section 4A 3.52. It is one of the chief principles of the Act that com-
Con1perIsa- pensation as provided in the Act shall be paid as soon as it
tiontg he falls due. Theoretically, compensation falls due as soon as lia-
paid bility is incurred under section 3(1); but acceptance of the lia-
pl-01-npﬁy. bility or quantiﬁcation of the liability may sometimes take time.
To- provide for such a situation, the Act has a provision requir-
ing the employer, where he does not accept the liability to the
extent claimed, to make a provisional payment based on the
extent of liability which he accepts. This is the gist of sub-
sections (1) and (2) of section 4A.

If the employer IS in default in paying the compensation due
under the Act for one month from the date of it fell due, the Com-
missioner may, under sub--section (3) of section 4A., direct that
in addition to the amount of the arrears, simple interest at the
rate of 6 per cent per annum on the amount due "together

1, The new section will be numbered as section 4A. Present section 4A
will then become section 413.

5. Present section 4A to be re-numbered as section 4B.

with, if in the opinion of the Commissioner there is no justiﬁca-
tion for the delay, a further sum not exceeding 50 per cent of
such amount", shall be recovered from the employer by way of
penalty.

3.53. This section (section 4A) was inserted in 1959. No
reported cases on this section have come to our notice. But
sub-section (3)1 of the section appears to be capable of im-
provement in some respects. As it is also possible that some
of the expressions used in sub-section (3) might create contro-
versies, drafting changes are also desirable. '

3.54. The ﬁrst question to be considered is whether the
power to direct the payment of interest under section 4A(3) is
to be exercised only when the Commissioner decides the claim
and awards compensation.

This apparently is the present position and could be made
clear. The second question is whether the interest to be award--
ed under the sub-section is regarded as a kind of penalty or
whether only the "further sum not exceeding 50 per cent" is to
be regarded as a penalty. The words 'Thy way of penalty" oc--
curring at the end of section 4A(3) would suggest the former
interpretation, while the separate mention in section 30(1) (an)
of "interest or penalty" would suggest the latter interpretation,
which is also more appropriate and should be adopted.

Thirdly in so far as the amount payable under the section.
is described as a penalty, it would be desirable to provide for
notice to the employer before a penal order is passed. Fourth-
ly we are of the view that the rate of interest mentioned at pre-
sent--6 per cent----should be increased to 9 per cent and the
Commissioner should be bound to award interest at that rate in
every case where the employer is in default.

3.55. To carry out the above improvements we recommend

the following re-draft of section 4A(3).

[Revised sect'-ion 4A (3)]

"4A(3) Where any employer is in default in paying the
compensation due under this Act within one month from the
date it fell due, the Commissioner--

(a) at the time of ordering payment of such compensa-
tion shall direct that the employer shall, in addition
to the amount of the arrears, pay simple interest
at the rate of nine per cent per annum on the amount
due, and

1. Para 3.52, supra.

Paucity of
Case-law
and imp-
rovernents
needed in
draf tin g.

Questions
to be
considered.

Recommen-
detion.

(b) if, in the opinion of the Commissioner, there is no
justification for the delay, may direct that the em-
ployer shall in addition to the amount of the ar-
rears pay a further sum not exceeding ﬁfty per
cent of such amount by way of penalty:

Provided that an order for the payment of penafty shall not
be passed under clause (b) without giving reasonable opportu-
nity 10 the employer to Show cause why it should not be passed.

CHAPTER 3A

COMPUTATION OF COMPENSATION

3A.1. Certain matters concerning the method of calculating
compcnsation----sections 5 to 7--will' be dealt with in this Chap-
ter. While the right to compensation and the amount of com-
pensation have been dealt with in earlier sections (sections 3
and 4), certain matters of detail which are relevant to the
method of calculation remain to be dealt with and they form
the subject matter of this Chapter Since the amount of com-
pensation depends on -the amount of wages either directly1 or
indirectly",--the deﬁnition of "wages" in section 5 is important
enough. In case of -temporary disablement, compensation is in
the form of half-monthly payments,3 and sections 6 and 7 are
relevant thereto. Compensation on death is topbe distributed-
section 8. Assignment is barred by section 9.

Method of calculating wages-

3A.2. For calculating monthly wages

section 5 provides
several methods.

The normal situation of a workman employed under the
same employer continuously for 12 months is dealt with in
clause (a) under which the monthly wages are 1/ 12 of the
total wages earned for the whole 12 -months.

We are of the View that this clause requires modiﬁcation in
one respect. At present, the total wages for the whole 12
months are to be taken into account and divided by 12 but, in
fairness, the wages for the last month should be decisive. Under
the present law a workman who got a rise in wages a month or
so before the accident does not get the beneﬁt of that rise, if
he is injured. This should be changed by amending clause (a).

3A.2A. We therefore recommend that in section 5(a) for
the words "one--twelfth of total wages etc. the words "the wages
for the last full month immediately preceding the accident",
should be substituted.

3A.3. This ﬁnishes section 5(a). In order to arrive at a
proper, fair and consistent computation of monthly wages, two
alternative methods of computation are provided for in clause
(b) which applies where the continuous employment under the

_t. Section 4(l)(a), 4(1)(b) and Trina). Y W
'. Section 4(I)(c).
3. Section 4(l)(d}.

It1trodL:;-
tory.

Section
5(a) and
Slbl .

Method of
calculating
wage.

Recommen«
dation to
amend
section 5(8)

Continent
on .95,
clause tb),
ﬁrst
method.

gfw-;.«~_

employer was for less than a month. The first method in
clause (b) applies where the continuous period of service was
less than one month. Under this clause,-

"the monthly wages of the workman shall he the average
monthly amount which, during the twelve months
immediately preceding the accident, was being earn-
ed by a workman employed on the some work by
the same employer."

With reference to this clause it was observed in 2: Stud
case1,-----

"Thcse words are not as explicit as they might be. The
words 'continuous' and 'service' which ﬁnd place in
clauses (a) and (e) have been omitted." (i.e. they
have been omitted in the computation part).

The clause could be made more explicit on this point.

Commen 3A.4. Where the employer had no regular employees, this
011 clause ﬁrst method of computation would not apply and for computing
mtg-hf)"c'1°°"d the workmarfs monthly wages, one must have regard to the
' words "or if there is no such workman so employed", and pass
on to the second method provided in clause (h) under which
the monthly wages of the workman shall be the average monthly
amount which, during the twelve months immediately preceding
the accident, was being earned by (a) workman "employed on
similar work in the same locality."
. With reference to these words it has been observed judicial-
ly1 that---
"these words manifestly include wages from any source
and any employer." t
It may be advisable to provide this explicitly.
Recon-ungn- 3A.5. We recommend that the change indicated above? with
dation to reference to section 5 (b), should be carried out by a suitable
am°."d verbal amendments"
*3 CCHOI1
1 )b.
Section 5(6) 3A.6. In section 5 clause (C), which is a residuary provi-

sion, it is clear' that the words _"last continuous period of service
immediately preceding the accident" mean continuous employ-
ment "under the same master". No amendment is needed here.

1. Pes.tonj:' V. Asibai, A.I.R. 1949 Sind 50, 53 para 25. __
3. Para 3A3 and 3A.4, supra.

3. Amendment not drafted with reference to section 5(b).

'. Pesranj! v. Anibal', A.I.R. I949 Sind 50, 52, para 20.

3A.':'. One question concerning contract labour has also to
be considered under section 5. It is well-known that when con-
tract labour is employed, the contractor usually pays less than
the employer. Therefore the Commissioner appointed under
the Act should, in case of contract labour, have power to in-
crease the amount of wages for the purpose of computation
under the Act if the wages which would have been payable if
the employer had directly employed the workman exceed those
paid by the contractor. The matter can be included in section
5 which deals with the computation of wages. The Commis-
sioner could be given a power, similar to that which he now has,
under section 5(b) to take into account the wages of other
workmen in similar employ although of course the present
power is meant for a dilferent purpose.

3A.8. We therefore recommend that, to section 5 a suitable
provision authorising the Commissioner to consider, in case of
contract labour, a direct employee's wages should be added, in
the shape of an Explanation,' on the following lines;

"E1-planatz'on2.--In the case of a workman employed on
contract labour, the Commissioner shall have power
to direct that the amount of wages of the workman
shall" be computed at a higher rate, if the wages
which would have been payable if the employer
had directly employed him exceed those paid by
the contractor, and, for this purpose, the Commis-
sioner may take into account the wages of other
workmen in similar employ".

3A.9. The Act makes no express provision for altering com-
pensation except in section 6. By the terms of section 6, it is
limited to half-monthly payments which are prescribed by the
Act for only temporary disablement (partial or total). Besides
section 6 there is no other provision in the Act which empowers
the parties to seek a reopening of the question of compensa-
tion whether ﬁxed by an agreement or determined by an award.
Should other cases be covered? In a Calcutta case," the ques-
tion was discussed and the following comment made:

"The reason why the Act has made an exception in the
case of the temporary disablement appears to me to
be plain. The disablement being temporary, is
normally bound or due to disappear, or it may be
that it will grow worse and be aggravated into a
permanent disability, but whether or not the subse-
quest development be for the better or for the
worse, the disablernent is for the time being of a

1. Present Explanation to be renumbered as Explanation 1.
'. Angus Co. Ltd'. v. Chaurhi, AIR. 1955 Cal. 616, 619 (Chakravarti, C.J.)..

Contract
labour.

Recom-
mendation
to add an
Explana-
tion regar-
ding con-
tract la-
bour.

Cases not
covered by
section 6.

Set:tio:1
6(1).

72.

temporary character, and since it is temporary, pro-
vision for future adjustment is obviously called for.

"Since the compensation is to be paid for the disable-
mcnt, there will be no reason to pay it when the
disablement has ceased for, again, since compensa-
tion is payable for disablernent as it is at the time
the compensation is fixed, there is no reason why the
full amount should continue to be paid, although
the disablemcnt diminishes and the earning capacity
is correspondingly restored. Looking at the matter
from the other point of view, since the compensa-
Iion is originally assessed on the basis of a tempo-
rary disablement. there is no reason why the figure
so assessed should be maintained, even if the dis-
ablement worsens and deteriorates into a permanent
disability."

3A.10. In the same case,' it was pointed out that "it is not
impossible that when a personal injury sutfered by a "workrnan
is assessed for the purpose of compensation, some mistake should
be made, not is it impossible that even a permanent disablement.
when it is partial, may deteriorate. In the case of permanent
disablement of a total character, the question perhaps does not
arise. But it is conceivable that in the case of a permanent dis-
ability of a partial character, there may he aggravation. Why
the Legislature has made no provision for such cases. it is not
for us to say."

At the same time, the iudgment explains the present narrow
position thus :--

"It may have been thought that it would be quite impossi-
ble to work the Act if successive applications made
at different points of time during the remainder of
the workrnau's life were to be permitted and it was
to be decided each time whether an aggravation had
occurred and it it had occurred, whether it was an
aggravation of the injury itself as such or whether
the deterioration had been occasioned by the opera-
tion of external causes. We are, however, not con
eerned with question on legislative policy and our
sole function is to interpret the Act, as we find it."

, It appears to us that the passage quoted above explains
satisfactorily the absence of a speciﬁc provision and so We do
not recommend any change in this regard.

3A.ll. Section 6(1) provides for the review of half monthly
payments payable under the Act. The review is by the Com-
missioner on the application either of the employer or of the

I. Angus Co. Lam, v. Chomht, Ara. r955 int."-eta.

.::.1--_._ ___

"-4-9

worltman accompagtied by the certiﬁcate of a qualiﬁed medical
priictiticitlér that there has been a change in the condition of 'the
workman or subject to rules made under this Act on applica-
tion made without such certiﬁcate.

Review is thus permissible under two situations; ﬁrst _where
a qualiﬁed medical practitioner certiﬁes as to a change 111 the
condition of the workman and secondly, subject to rules under
the Act without such certiﬁcate of course on an application.

3A'.l2. The Act is silent as to the exact circumstances to
which the second situation is applicab1e,-----except that rulcsl will
provide for it. It is desirable that the Act should give some
guidance as to the cases for which the second situation is meant;
the situation inumded' should be broadly indicated in order to
make the sub-section more intelligible and self-contained. From
the rules it appears that the circumstances provided for (in the
rules) relate to increase or decrease in wages and the like. Some
of the 'important grounds mentioned in the rules could be men-
tioned" in section 36 of the Act with a residuary power to add
other circumstances by rules.

3A.13. In the light of the above discussion we recommend
the following re--draft'~' of section 6(1) :

"6(1) Any half--month1y payment payable under this
Act, either under an agreement between the parties
or under the order of a Commissioner, may be re-
viewed by the Commissioner»

(a) on the application either of the employer or of
the workman accompanied by the certiﬁcate of
a qualiﬁed medical practitioner that there has been
a change in the condition of the workman; or

(13) subject to rules made under this Act, on applica-
tion madc without such certiﬁcate-----

(i) by the employer on the ground that since the
right to compensation was determined, the
workman'; wages have increased";

(ii) by the workman, on the ground that since the
right to compensation was determined, his
wages have diminished;

1. section 32(2)(a).

5. The grounds of review are taken from some of the grounds mentioned
H1 the rules.

°. See section 4(1)(d), proviso (ta).

Recom-
mendatxon,

Q4.

(iii) by the workman, on the ground that the emplo-
yer-1, having commenced to pay compensation,
has ceased to pay the Same notwithstanding the
fact that there has been no change in the
worknm-n's condition such as to warrant such
cea._s'ation;

(iv) such other ground as may be prescribed."

Section 7- 3A.14. Section 7 reads as follows:--

Corumuta- '

{ion of "7. Any right to receive half-monthly payments may, by
ha"-_mo,,_ agreement between the parties or, if the pa1_'ties can-
thly my not agree and the payments have been con.t1nued for

not less than six months, on the application of either

mm' party to the'Commissioner, be redeemed by the pay-
ment of a lump sum of.such amount as may be
agreed to by the parties or determined by the Com-
missioner, as the case may he."

Recommen-

_ 3A.l_5. The procedure for commutation of compensation is
d*"'°n- laid down? in the Rules. We think that it should ﬁnd a place in
the Act. Hence We recommend that the following sub-section
should be added3 in section '7:----

"(2) Where an application is made to the Commissioner
under sub-section (1) for the redemption of a right
to receive ha.lf~monthIy payments by the payment of
a lump sum, the Commissioner--

(a) shall form an approximate estimate of the probable
duration of the disabletnent, and

(I3) shall order payment of a sum equivalent to the
total of the half-monthly payments which would
be payable for the period during which he esti-
mates that the disablement will continue, less one-
half per cent of that total for each month com-
prised in that period:

Provided that fractions of a rupee included in the
sum so computed shall be disregarded.

(3) When, in any case to which sub-section (2) applies,
the Commissioner is unable to form an approximate
estimate of the probable duration of the disablement,
he may, from time to time, postpone a decision on
the application for a period not exceeding two months
at any one time."

1. This is intended to provide an additional sanction for delay in payment.
3. Rule 5 of the rules under the Act.
3. Present section 7 to he re-numbered as sub-section (1).

CHAPTER 4
DISTRIBUTION OF CONEPENSATION

4.1. Once compensation is computed in accordance with the
provisions of the Act, the next important question that arises is
the distribution of the amount so computed. In the ease of
death, the persons entitled are the dependants as deﬁned in the
Act', but every dependant is not necessarily entitled to cla1rn_ a
right of participation in the compensation. It is for the Commis-
sioner to decide whether _a particular dependant' should be allow-
ed to do so and if he is allowed, then what share should be ap-
portioned to_him. The provisions of section 8 which deals With

the subject are of importance.

4.2.'Any person-----whether lawyer or Iayman--who reads the
section is struck by its length and complexity. The section, as
originally enacted, was a very short one; but successive amend-
ments have engrafted one provision after another on the section
so that, as it stands at present, it has neither the clarity not the
brevity of the original and as one proceeds to read it, one loses
thread of the principal idea with which the section begins.

Broadly speaking, the principle topics dealt with in the sec-
tion are: deposit, distribution and investment. This can bei1lus-
trated by the following analysis :--

Section No. Topic
. 3(1) Compulsory deposit.
DGPOQII I 2) Volurntari deposit.
I 3) Receipt for compensation depo-
sited.
l'3(4) Deduction of certain
I from the money deposited
I and notice preliminary to
_ __ -( determination of distribution.
Dktﬂbutloﬂ - . I 3(5) . Apportionment.
I 8(6) and 8(7) in part Payment of the sum appor-
L tioned.
['8{'!) in part Investment
I 8(8) Variation of the sum invested.
1'1V$i1'11'3'11t -{ 8(9) Recovery where variation is
I on the ground of fraud im-
I personation or other impro-
L per means.
1. Segtionz. H
*. Section 3(5). I

75
28 M of Law[74---6

Section 3.

Recommen-
dation to

mplaoe
Section 8
by three
sections.

Section
8(1) _ to

8(4).

It would be convenient if section 8 is replaced by three sec-
tions--8, SA and 8B-----each section to deal with one of the topics
mentioned above'.

We shall now discuss the changes" needed in the several sub-
sections of section 8. ' 'i '

4.3. Under section-8(1), inter alia, subject to a proviso al-
lowing srnalladvances, no payment of compensation in respect of
a workman whose injury has resulted in death shall be made
otherwise than by deposit with the Commissioner. Under the
same sub_-section, no lump sum payment to a woman or person
under legal disability shall be made otherwise than by deposit.
Under section 8(1), again, any other sum amounting to not less
than 10 rupees. payable as compensation may be deposited with
the. Commissioner. Section 8(2) permits deposit of compensa-
tion in cases other than those of dea h. Section 8(3) provides
that the receipt of the Commissioners all be a suﬁicient discharge
and section -8 (4) permits certain deductions to be made.

Section 8(1) . 4.4. Section 8(1) requires consideration in some detail. There
g(5)& gm are twosituations-for which the mode of payment of oompen-"

provision
regarding
work men.

sation is speciﬁcally laid down in section 8(1). First where the
injuryhas resnlted in death; and, secondly where a lump sum 'is
to be paid.a's~ compensation to a woman or a person under. li-',gai'l_
disability. In these two'cases the compensation must be deposited
with the Commissioner; it cannot be paid directly by the employer
to the "person entitled. - t . - _

As regards the ﬁrst situation, there can be _I,lo.co,ritroversy,_;tl1e
object of deposit being to secure' that the dependants are asceti-
tained and the compensation apportioned amongst them under
scction 8(5) by the Commissioner.

As regards the second situation, again, there is no controversy
as regards persons under legal disability. But as regards women,
some rc-..-consideration of the present law is necessary. The effect
of the present provision for compulsory deposit is that it is not
immediately paid to the person entitled. Even after deposit
under section 8(6),----injury resulting in death---"1:he Commis--
sioner may. . . . . . . . ,_ . . . . . . .pay the amount to the person
entitled thereto". Under section 8(7), wherethe lump sum de-
posited is payable to a woman (or a person under legal disabi-
lity), the amount "may be invested", appliedﬁor otherwise dealt
with for the beneﬁt of the woman or of suclrjperson during his
disability in such manner as the Commissioner may direct"- This
scheme involves avoidable delay and inconvenience where the

person entitled is an adult woman.

The net effect of these provisions is that 'compensation pay-
able to an adult woman is not necessarily paid to her in cash

immediately. It has to be deposited with the Commissioner and

1. Ro-drafts showing proposed splitting up not prepared.

afti=3';"i;}_iat; its' iinmedi-ate payment "to her is subject to the d_iscre--
tidn'o£'_tHe. C_omrnissionen=who may (if it is not paidtimmediate--i
Iy')" invetsteiffépply it, or 'otherwise deal with it for the beneﬁt of
the woman.

.:.-;4.5;' We-"are" of the view that this scheme -(whichappears to
have been introduced by an amendment of 1929) requires modi-
ﬁcation having, regard to progress achieved by women. ' The
English,Act1 was in this respect conﬁned to persons under legal
disability. No doubt in -1929 when the scheme was introduced,
conditions in India were diiierent from those in England and the
provisions were perhaps needed for the protection of women. But
at the present day, some modiﬁcations in this scheme may be
necessary because" some 'women may resent even the protection
thrown around them".

It would therefore be proper if, having regard to the advance-
ment in the socio-economic condition of women, the applic_ati011
of the above provision in section_8(1) is modiﬁed by giving :1
discretion to the Commissioner to permit direct payment to the
woman by the employer without' deposit under sub-section (1).
This will require an amendment of sub-section (1) of section 8.

45A. Accordingly we recommend that the following proviso
should be inserted below section 8(1) :-- p

, , 'fP.rovided further that in the case of a lump sum to be
; V ' paid as 'cor_npensation to a woman, an employer may,
..';l if the Cominissioner is satisﬁed that it is a ﬁt case

for direct payment and so certiﬁes, make a direct
payment to her."

_ This ﬁnishes that part of section 8 which deals with the
33'1:p'('is'it._pf conipensation. _W_e proceed to the second part" of
_____;_section dealing with distribution of compensation. '
"'7' 4.6.. Section 8(5) dealing with distribution of compensation

i§?'as follows:------

''(5) Compensation deposited in respect of a deceased

workman shall, subject to any deduction made under

- i-sub-section -(4), be apportioned among the depen-

.- dents: of ;the deceased workman or any of them in

-such proportion as the Commissioner thinks -ﬁt or

may, in the discretion of the Commissioner, be al.-
lowed to any one dependant."

onetof the most important provisions in the Act and we
propose to discuss a-_few points concerning this sub-section which
are .of_'practica.l signiﬁcance. -

1. Section 26, Worlrnierrs Compensation Act, 1925 (Eng).
5. Cf. analysis in para 4.2, supra.

Séction 8(1)
Recommen-
dation to
amend.

Recom-
mendation
regarding
section 8(1)

Section 8(5)

i._.g

soot' 8{5 4.7; I ' ' hat :1' tributi E th compensation
'?°"l'::'i' }. the ntdritghgat mattlesr entirg cf'or the determination of g
'9'','m°,m? ,_ Commissioner and sub-section (5)1 furnishes no guidelines to
ngmm. him
mendatien .
In our View it is desirable to insert some guidelines in this
regard. Without atter'n-ligating to. be exhaustive we my state that
the Commissioner shoe (1 take into account---

(i) nearness-of relationship----e.g., the dependant being the
widow, child or parent of the deceased;

(ii) the means of the dependant and the extent of his
dependence on the workman; -

(iii) the desirability of not distributing com. _nsation
amongst a very large number of persons,--w rch may
lead to its being frittered away.

We therefore recommend that the following proviso should
be inserted below section 8(5): . " '

"Provided that in exercising his discretion uncle: this sub-
section, the Commissioner shall have due regard, to»---
(i) the nearness of relationship of the dependant to
the deceased; -
(ii) the means ofthe dependant and the extent to his
dependence on the deceased;

(iii) the desirability of ensuring that the amount of com-
a - tion is not distributed amongst an excessively
gs number of persons-so as to lead to its being

frittered away; and

(iv) other relevant considerations."

§;f[';§'°§(g} 4.8. Then there is another question which arises out of sec-
dmh tion 8(5)._ Compensation is to be apportioned by an order of
the Commissioner to one or more depen ants. What is to happen
when a dependant dies afterthe death of the workman and betore
apportionment ? What is the nature of his right ?_ This question

has created some diﬂiculty-.

For example, in Va Calcutta case', an argument was put forth
by the employer that no right could accrue in favour of a de-
pendant _at all till the enquiry is ﬁnished by the Commissioner
and the distribution order is made. It therefore the dependant
dies before the distribution order is made, the compensation should
be refunded--th-at was the "contention. This contention. was held
to be not tenable. The court held that it was true that section
3 which imposes the liability upon the employer to pay compen-
sation does not specify the person or persons to whom' it'-is pay-
able but section 8 makes it clear that» nobody has any right to

1. Para 4.6,
'. Pasuparhi Dutra v. Kelvin Jute MIILI. A.I.R. 1937 Cal. 495, 497.

it except the dependants and this is the case whether the com-
pensation is paid direct or through the Commissioner. In cer-
tain cases the compensation has to be depositedwith the Com-
missioner and this is for ensuring proper distribution. The High
Court observed :

"In my view, 'dependant' in section 8 includes the heirs
or legal representatives of the dependant as deﬁned
by section 2, where the dependant has died since the
death of the workman."

4.9. The High Court pointed out that the compensation is to
be deposited with the Commissioner for safe custody and equit-
able distribution, particularly when there are more dependants
than one, but though the Commissioner has got the entire dis-
cretion in the matter and can allot the entire amount to one de-
pendant, he cannot deprive the sole dependant of any portion of
the compensation nor can he give any portion of the same to one
who is not a dependant.

4.10. In England, a similar view was
Lords' (though Lord Dunedin dissented)'. It appears, however.
thattheH"ouseofLordsdidiindsomediﬂicu1tyinarri ' atthe
The law in England was subsequently altered y sta-
lute'. In the (English) Workmen's Compensation Act of 1925
-which replaced the Act of 1906, it is provided in section 2(3):

"Whereadependantdi_esbeforeacla.imunderthisAt:t
is made, or if a claim has beenmade. before an
agreement or award has been arrived at or made, the
legal personal representative of the dependant shall
have no right to payment of compensation. and the
amount of compensation shall be calculated and ap-
portioned as if that dependant had died before the
workman."

takenbythel-Iouseot

' 4.11. The High 'Court of Calcutta, in the cm cited above',.
' fr referring to the statutory provision in England', observed:---

. "There is .no_ corresponding provision in the Indian Act.
If the opposite view is taken, the position would be
that the right to 'on would depend upon.
thedaegdent of the time when the Commissioner
ma e 's inquiry or when the dependant dies. If
the Commissioner were delayed in inquiry

'-through some cause, such as a heavy or some

1." Uhitcd Collieries Ltd. v. Slhtpron, (1909) ac. ass.
'. See section 2(3), Eng. Act of 1925.
'. Ptuuparhi Durra v. Kelvin Jute Mills. A.I.R. 1937 Cal. 495. Para 4.8,

supra.
'Para 4.] 0, supra .

Bullish

Madras
view.

R.ecoIn~- t
mendation
regarding
section

a( 5).

' e-other unavoidable 'delay, dependants might the gun-
.' compensated after suﬁering (_pr1Yat1OIli_S through;_tlte
I . 'loss of the workman upon w_1;om.th_e_y Were €1'6P¢'rI.1.'
_dant. Such could; not be the position under _ e
Act." - M

. -"A-_4.12.,_As was held in-a Madras ca_se,1 under-sﬁcttc-I} 8 sub-
seetion.'('4-) the fig'l1t'of-the employer to get-a refund arises 91113'
when at worltm'an- dies Without any dependant and the.Cotnm1ss1on-
er at the time of the distribution knows that he_has left no de-
pendant within the me_aning of the Act. But, 1f the workman
leavesa 'dependant and' the claim of that dependant IS recognised
by the'_Comm_issionertas the" person entitled to-receive the.eom-
Zpensation, any claim on the part -of the employer for a refund
no longer arise~under'_tHat clause. - :-
is no doubt the present" position. The rightto»
penéation vests in the dependant on the death of the . _. ,
subject to the order of the Commissioner underds'eetion.~8(:5},._ _

'4.I._'?{. We are,' however, (at the view that the right-should not
'so'vest andAthht"'i1'1F theicaseof death of a dependant-.befor_e,_tl!te
order r' -§e't*1ti_o'n"8-(5)d- is passed, the amount'sl1oult_1* be submit
..tpj,d' jtion "amongst others (see the English sect1o11)1.--a.«'--If
'thje'd_ea'tl'l- the order but -before" the 'actual payment,
the' same -principl should. appl and the aihount should be .sub--
ject t.o.re¢distribut__ipn among~.t epsnprviving dependants held en-
'titIe_d._ . = W" ;"tHi_pkt that-the scheme of the Act is that the faetum
of dependence' is the; rinrary consideration. We reeomtnend that
__suj.table 'p_1joyi$ions9, pe inserted in-'this behalf. ' -

section s<6).'.-"Q-. 4t14i:seétttn;' 8(6) reads as follows:

--Recom-

mendation. '

N F §.'('6') "(Where any compensation deposited with the
Commissioner is payable to any -person, the Com-
missioner shall, if the person to whom the-. compen~

:;'I:»'.-: :" . =1.-satinn -impayable is_-not. awoman orta person under

at legal disabi1it'y,'.a.-nd may, in other Cases, pay the
__ ' _ p money to_ the person entitled thereto."

; .i,',I'l';te'_nrt)_rt_l'. "ohm ,'nsation'f in this s'ub-vsection is' wide enough
to r:hve_r, 11_ f-month ' payments." We' Aarejof the View that in the
938$ Of"H .- thly payments, payment 'to the adult female

J-_._.. .. '
" .t't..e-'u ..

.9f,tlig-iConti3tiss:vnérl

Tsliouldfbe and Sh()'l1'_ld"I"1.()t dep¢1id'ort'the discretion

'- = part ftomsthis :point of, substance, at verhal eliange is need-
ed. "The latter half of the sub--s_ection, which deals with "other
cases , is not very clear because 11]. eﬁect (through not in form),
it contemplates two negatives. The ﬁrst half provides for' cases

1. Hbdurrahman v~. Beerari Kayo, A.[.R'; 1938 Mad..402.
1-3. Para 4.10, supra.
2 Draft not annexed.

iii?

isjriatiya irkoiiian or ' i nuhder "legal diiii1bﬂi1Y-
¥'hi=L"1at'['ert half, when it speaks of 5other cases", has Jherefsoze
really in mind cases Where the payee is a woman or person_u1id£_=r
IegaI_dis_abiiity.__ Thereis seope.for verbal Improvement 1n this
respect; T ' »

We therefore recommend that the subsection should be
K.tVi.§sd:a$,i°119"rS?. n
in "18.--(-6)_ 'Where any cornpensation depositediiwith the
' Comllﬁssioner is payable to any person,-----

(a) the Commissioner sha1l,_,_if the person to whom the
2 'compensation is payable is not a woman or a per-
son under a legal -,disa.bil.ity or if the compensa-
tion consists of a half-monthly payment payable
to an adult woman not under legal disability, pay

-tjziei money to the person entitled thereto;

" 7A'(-.b1':'the CqiniJ1issiO:j1er,_1:riz1__*§;;-if the person to whom it
' ' "is 'p ' able iijwomah or £1 person under legal
_dis',zb; ':3, "an.'z' rhé_ cpmpensation does not consist
_¢')f._a;'fiaIf-ii1ontflIy"{)'c'§y_ﬁ:2ent payable as aforesaid,

'pay the.It1oi_ney_'tb."the person_'entitled thereto."

i,-:::7-4;-1-5'5 -Se§A:if.oa:'8'(7Jp' as

"{7} Where any lump sum deposited with the Commis-
sioner is payable to a woman or a person under a
legal disability; éhehmum -inaygbe invested, applied

or othgwise dealt with for the beneﬁt of the woman

.or -'of eh person-during his disability, in such man-

'11jI.'5'1"'a:S"i'i'!¢«"' Coriimissioner may direct; and where a

hg}t;month1yw' ajimen-t'pe.yable to any person under
aiiegal di-sabi itfﬂhe Gommissioncrinay, of his own

'mot-ion-'0?' an -__z_1pplit:atio_n made--to h'im'in this behalf,

i"or'cIer that thei-payiztieiit be made during the rlisability

to any dependant of the workman or to any -other
nperson whom :the ﬂommissioner' thinks best ﬁtted to

-'provide Iforitheiwelfare of".-the~warkman.'¥ . -=' . -'

{'35 iln 'the;-iatter-na1r'or the snub-section', the Word
Wtﬁiilﬂ»-Tcfetfte '§in';'i1iipr3essioi_1 tiiot-"1heT~suIi£section -is.
for "ﬁe-'anti'? 1:>igt"_t.l-Lat not the "t'rue= position.-
n
Half-monthly payments are, under section."4"(-I.) (11)., 'payable
onﬂthe disablement of a workman and it would appear that the
E;}:tp.1;tf§n9i(}11A"fiiE:[5endaI'Yt'_'-in?H'}eiI3fléi'f"haE*iﬁtlbjsélltibi '{-?3_ real]
means a"pé1sotr who iwouid -3be '-a¢<dq3'e'1ndant- if mgejivorkma:n- drag

"'depend!m't"
appﬂntble no

(17.4 -Half-monthly payments.

*..See definition of "dependant" in section 2(tiJ1'.which speaks of relatives
of a deceased workman-.

Section 8(7)
«Recom-
mendation.

Incidentally section 8(7)-is a ' hie only where payment
has not been made under section (6). That should be made

618%!'-
The sub-section should therefore be revised as follows :

"(7) Where---

(a) any lump sum deposited with the Commissioner is
payable to a woman or a person under a legal dis-
ability, such sum may, if the Commissioner has not
ordered payment under clause (b) of sub-section
6,he invested, applied or otherwise dealt with for
the beneﬁt of the woman or such peison during
his disability in such manner as the Commissioner
may direct; -

(b) a half-monthl payment is payable to any person
under a lefalydisability, the Commissioner, if he
has not or cred payment under clause (in) of sub-
section (6) , may of his own motion or on an appli~
cation made to him in this behalf, order that the
payment be made during the to any per-
son who would be a ependam' if the workman
died, or to any _othe':(person whom the Commis-
sioner thinks" best ﬁt to provide for the welfare

of the workman."

4.16. Section Qiprovides as follows:

"Save as provided by this Act, no lump sum or half
monthly payment payable under this Act '
any may be capable of being assigned or
orbeliahletoattachmentorpasstoany
otherthantheworkmanbyoperationoflaw, not
shallanyelnimbesetoﬂagainstthesame."

section 9.

The words-"or pass to any person other than the workman"
insection9 seemtomakeadistinetionbetweenaworkmanaml
a non-workman. This gave rise to an argument in a Madras
case' to the eﬁect that if a dependant who has become entitied
tocompe1uationdies_béorereceiptoftheam0unt,theamnIn1t
lapses. The assumption was -tint the dependant was a non--
wnrk_man. Fortunately the argtment failed. But the matter

* Itn1aybementionedthatthissectioneon'eepondstoaseo-
tion of the (English) Workmen's Compensation Act,' 1925.
which ran as follows:

1.1. M. Abdurrahman v. Nadnkkhr! M. B. x.,y..,'.-.m 1933, 1. Mm, 402.
. Section 40, Worlr.men's Compensation Act, 1925 (Eng).

"A weekly payment payable under this Act or any
schemecertiﬁedunderthisActorasun1pa1d by
way of redemption thereof, shall not be capable being

, or attached and shall not pass to
any other person by operation of law nor shall any
elaimbesetoﬁagainstthesame."

It will be noticed that the words "person other than the
workman", whichoccur in our section 9 do not occur in the
English Act, and therefore the emphasis on "non-workman" in
not found in the English Act. '

. 4.17._We are now recommending a provision' wheretmdert.
in case._of death of the dependant, the amount will be subject to
distribution amognst other 'dependants. Hence no clariﬁcation
in Section 9 is needed with reference to the question raised in
the Madras case.'

I, See recommendation as to section 8(5). para 4.13. supra.
'. Pnra4.I6,su,pra. - .

lntroduc
tory.

Section 10
(I)notice
to be op-
tional.

- . .':_ : CHAPTER 5;
' NOTICES AND REPOR.-TS"

5_.-'1'. In "order that the provisions conferring right to com-
pensation may not remain a dead-letter, the *' Act-'has a number
of sections '(sections '10, 10A, 10B and 11-), refuiring various
kinds of notices, reports and statements and pro idingtfor im-
mediate._n;edica1- _-examination of the workman_._) The primary
Qbjectiieof these'. provisions has somehow _got l.'1lurred~ because
o'£fthe'hapa2.ard manner in which the provisions have comeyto
he iiiserted, _a.nd--if we may say so with resp'ect_'--beca.us'e_ of the
casual' "manner in which the various stanitorymrequirements
have been inserted. The result has been that'donsidi:rations' of
proper enforcement of the Act have not received the attention
which they deserve; and somehow, the relevant provisions----
particularly section 10--give one the impression of an over-
legalistic statute, likely more to put obstacles in the Way of
claims for compensation than to provide facilities for their pro-
per assertion. We make these introductory observations in
order to explain why, in the case of the sections with which
this Chapter is concerned, it has become necessary to resort
to .a. re-casting of the provision, as also to a number of changes
of substance}

5.2. In section 10(1), there is, on the part of the workman,
an obligation to give notice of accident to the employer. If
the notice is not given, the claim of the workman for compensa-
tion cannot be entertained unless the case falls within one of
the exceptions speciﬁed in the section or unless the Commission-
er waives this requirement. In our opinion this provision
should be deleted. It is possible that the employer may deny
receipt of notice or may not maintain the required notice----
book under sub-section (3), and nice questions of fact requir-
ing evidence may then arise. We are therefore of the view that
there should be no such obligation on the workman. The
giving of noticem-which we would prefer to describe
as an "intimation"---should be a facility allowed to the work-
man and not an obligation imposed on him. He can avail him-
self of the facility in order to preserve evidence of his bona fides.
But failure to do so should not entail a bar to the claim being

entertained".

'. See discussion as to sections 10, 10A and 10B, infra.
'. For redrauftof section in, see para,5.3, supra.

84 ., .- ;,. ' ii

s-5
's'-.3.5=secr,ion 10(2) "reads-----'

"10(2) Every such notice shall' give Ihc Ilafnle and add-
ress of the person injured and shall state in ordi-

t nary language the cause" of thednjury -.and_-_ the! date

- on which the accident l1appened,'_and.shal] be served

on the employer on upon any person responsible

l to the empl r for_ithe:1"nanagement.of any branch

of the trade or business in which injured work-
man was employe ." '

This sub-section will need consequential changes_ in, View of

;our recognmendationpto. substitute voluntary intimation in place -

of oompulsoryl notice. '4
"-5.4. Section -10(3) reads---

"The State Government may require that any prescribed
. class of "employers shall maintain at their premises
at whiclrwiorkrnen areie ' loyecl a notice-book, in
the prescribed forh1',"-"wide shall be readily access-
ible at all reasonable times to any injured work-
man employed on theynpremises and' to any person
actinggfronaiﬁde on his-beh ." _ ' A ' _-

p maintenance of 'such _a: book
should -be Dhiigatory for all employers. If the workman choose-
es lo give an intimation,3--(we are recommending the substitu-
tion of an intimation in place of notice).----he should have
available a bound book -in' which" the jntirnatign will be_enter-

...i-..

= Late of the view" that the

5.5. Section IDA confers a power on the Cornmisioner "to
require statements from' employers regarding fatal accidents. At
present the Conunjssibner has a 'powerbut there is no duty. We
think that it should. be ntgmdatory on the Commissioner to do so
whenever a fatalaccident occurs and the orntnissioner has in-
forngation thereof. ,Wc recomrneudpthat the section should be

.jst;79»::.5:_1;;I_1CI'1dE5d'', ' _ I
~51: ymain paragraph reafds---

"10B(1) Where, by any law for)' the time being-in-force,
notice is required _to be given to anyfauthority, by
or on behalf of an employer. of any accident occur-
ing on his premises which results in death or serious

.-bodily injpry,_ the. person required to give the notice
_ Sha1l.",wi_thin seven days of the death" or: serious

, ,__ 4-___'4..._

3t'%§omms1§?'i5"'i!-:5; 33?.-.5 i1.'?(1.?- 3;! 399*"-
,§ee.re2;srm'm'end§a,tiori '\as'ut'o'§e'ction'_' 1_()(1); para :52,

ragga '
-' . For redraft oi' section"10A.'sce'parat,§}3:. n I

Section
10 (2)

""Sci':t"f't)'r:':.:A'!v'
IDA '

Sél3[1-§1:'l'£<- I
10.3 (I ).

bodily injury, send a report to the ' 'one:
giving the circumstances atte ' g the death (or
serious bodily inpiry);

We are of the view that section 10B which is a useful pro-
vision should apply in every case, and not merely where some
other law provides for notice of a fatal accident. We recom-
mend that section 1013 should be suitably amended for the
purpose. We propose to omit S. 10130), proviso and S. 10(2).

5.7. The changes which we have recommended in sections

mm mo: ID, IDA, and 10B are intended to ensure-

gmggggn (i) prompt intimation of accidents or the instance of

IGJOA and the employer;

NB' (ii) eﬁective provisions for checking by the Commis-
sioner; and

(iii) sufficient iacility to the workman to put on record
what he knows about the aocident,---without being
under a legal obligation to do so.

The revised scheme has three major features---~the employ-
er should be primarily responsible to give notice of serious ao-
cidents (section 10B)_, subject to checking by the Commission-
er (section 10A) and, in addition, the above facility of intima-
_tion by the workman should be available (section 10). These
tliree"m'ajor feature "of the revised scheme are complementary to

one ' another.

R M 5.8. In the light of the above discussion we recommend the
°"""' following re--draEts of sections 10, 10A and 1013 which are to

of ' . .
'i°§,i,_'°£- be re-n _ p ed as indicated below:

RE-DRAFT OF SECTION 103
RE-NUMBERED AS SECTION 10.

15 "mm 10(1) Where an accident occurs on the premises of 'an emp-

m'.1np,,_,.. layer and results in the death of a workman or serious '

staph.) iniury to him, the employer 'shall, within seven days of the
death\or_serious bodily injury, send a report to the Commis-
sioner giving the circumstances attending the death or serious
bodily inlury. _ y 0-\

ts. 1013(1) proviso, omitted]

ts. ionu) _
,"§;_?ff""' Explanim'on--"Serious _bodi1_y iiiiury" means an injury which
involves or in all probability will involve the permanent loss of

the use of, or permanent inidry to, any limb, or the permanent
lossofor iniurytothesigh_torhearing,orthe£raetureolany
limb, or the enforced absence of the injured person from work
for a period exceeding twenty days.

'[s. 103(2) omitted] ' [section
(2) Nothing in thissection shall apply to factories to which "
the Employees' State Insurance Act, 1948, applies.

RE'-DRAFT or SECTION 10, PORTION RELATING ro
- INTIMATION, RE-NUMBERED AS SECTION 10.4.
[Existing

'IOA. (1) Where an accident dausing the death of or_ p_ersor_t- %=<=t§0n 10
at injury to a workman occurs. the workman to whom 1n1ury 15 L]
caused by the accident, or, in case of death, any. dependant,' ' '
may, if he so desires, give to the employer on irttzmatzon of the t
accident, stating, in simple language,-

_ (a) the name and address of the person injured or
- dead,
(b) the cause of the injury or death, and

(2) The intimation of accident given under sub-section [Existing

(1) may be served on-- section to
(a) the employer, or lllodlﬁﬁtl

'.(Jb) any one of several employers, or

(c) in case' of any employer carrying on a trade or
business, any-'person responsible to the employer
for the management of any branch of the trade or
business in which the injured or dead workman was
employed. - .

(3) An inttrrtation under sub-section (1) may be served §ﬂ"'.'""3
by delivering it at, or sending it by registered post (4)1
addressed to. the residence or any oiﬁce or place of
business of the person on whom it is to be served.
or by entry in a book maintained under sub-section
(4), or it the workman ordependant so desires, by
both such delivery and such entry.

(4) Every employer shall maintain at the premises at
which workmen are employed, a bound intimation
book. in the prescribed form, in triplicate, which
shall be" readily' accessible at' all reasonable times to
any injured worktnan employed on- the premisw
and to any person acting bona ﬁde on his behalf
or to the dependant of a deceased workman.

section 10(3)]

T ' Provided that where the wonkman is employed, or was,
before his death, employed, in any such employment as is men-
tiorted" in item 23' of the Second Schedule", the provisions 0%'

1; The reason for separately mentioning dependant is obvious.
'. Item relating to agriculture. '

'::;-' 1 this sub-section shall not apply except t'_n so.}'ar_ .as- the 55"?-cfft'
r-H rinr Govcrnmerm by notiﬁcation m the oﬁicznl, Gazette, othentrtve

directs.

(5) 'Every employer shall, soon as may be after receipt

of the intimatz'on.under sub-section (1),. send a copy

' of the intimation to the Commisioner and give, an:

other copy to the workman from the intimation
"book. ' . -

RE-DRAFT OF SECTION 10A.
RE-NUMBERED AS SECTION 10B.

Existing 10B.(1) Where a Commissioner receives information _from

section 10 any "source" that a workman has died as a result of an accident

.A.] arising out of and in the course of his employment, he shall
send by registered post a. notice to the workman's employer rc-
quiring him to submit, within thirty days of the service of the
notice, a statement in the prescribed form, giving the circum-
stances attending the death of the workman, and indicating
whcther,~in the. opinion of the employer, he is or is not liable
to deposit compensation on account of the death.

(2) If the employer is of opinion that he is liable to depo-
sit compensation, he shall make the deposit within thirty days

of the service of the notice.

(3') =1: t.he'~cn1pIoycr"is of opinion tl1.2i,t he is not liable to
deposit compensation, he shall in his statement indicate the
grounds on which he disclaims liability. t

(4) Where the employer has no disclainied liability, the

- - fommissipner, after such inquiry as he may think ﬁt, may in-
' o,f'the'-dependants of the deceased iyorhihan that it is
open to-tl1e'dependants to prefer a 'claim for icompehsation, and
g_1ay"give'them such 'other further information as he may think

t. ' ' t

REDRAFT on PARTOF lsncrrow -10" RELATING TO
LIMITATION FOR cI.--:4rM RENUMBERED "AH sscrrozv
21.4.

*5, ing s '-BIA.--(1) No claim for compensation shall-be entertained
section 10 by' a- Commissioner" unless the-claim is preferred before him
(1). main-_ within two years of -the occurrance of the accident or, in the
93" ''"°'51' case of death, Within two years of the date of -death:

[Existing _.ExpIa:tation 1-.--Where the -accident is the contracting of
section 10 a disease in respect of which the provisions of sub--section (2)

l()1r)';v5i's'(=s'] of section 31 are applicable, the accident shallvbe deemed to have

1. This is a reference to existing s. 3(2). The reference to the
renumbered provision to be substituted.

39.'

occurredsori the ﬁrst or -the da¥$'.<1_u1tins which the worlssletn
vghséécantimxouslyj absent f_r52m.;-wo1:k '"1 consequsncs 0?. the C115:
ablemcnt caused by the dlsease:-_ - - r

. - Exydanation __ 2.¢eI_n- case of disablement p which. . 'is' . 'clue
to the contracting of any such 1sease.and which does not force
the workman to absent 'himself from work, the period '_two
years shall be counted from the day the workman SW95 Mimi"
Iion of the disablement to his employer; or' if the workman does
not give such intimation, from the day on which his employ-
ment under theeempiayer commenced.

Explanation 3.----If a workman, having been employed in an
employment for a continuous Period, speciﬁed under sub-section
(2) of section 3 in respect o that employment} ceases to be
so employed and develops symptoms of an occupational disease
peculiar to that employment within two years of the cessation
of employment, the accident shalt be deemed to have occurred
on the day on which the symptoms were first detected.

4(2) The Cornmisioner may entertain and decide any claim
to compensation in any case notwithstanding that the claim has
not been preferred in due 3time as provided in sub-section (1), if
he is satisﬁed that the failure was due to sufficient cause._

5.9." _Section_1l "deals with medical examination of the work--
men? I _ . ' ' ' ,

Sub-section (1) provides that where a workman has given
notice of an accident, he shall, _if_ the employer, before the ex-
of 3 'days from the time at w ich service of the "notice
has been eﬁected, offers to have him examined free of charge
by a qualiﬁed medical practitioner, submit himself for'
mination. In the case of a workman receiving a halt-monthly
payment, he has to submit himself for such examination from
time to time; and there is a proviso prohibiting an employer
from requiring the workman to submit himself for medical exa-
mination othcrwise than in accordance with the rules. We are
at the moment concerned with the notice of accident referred
to in this provision. The scheme of the section is that before:
three days expire from the time of service of the notice, the emp--
loyer can require the workman to undergo the medical exami-
nation. Since we are recommending separately" that notice of
accident----now to be called intimation of accident----by the work-
man will be optional and not obligatory, this provision requires
modiﬁcation for obvious reasons. Cases of death or serious
bodily injury will usually come to the notice of the employer;

1. I.-ztimarion by workman is now proposed to be discre(r'or1ary--.ree re-draft
of section 10---but, in this case, such a proviirion is unavoidable.
'. This is reference to existing section 3(2).

'. See discussion as to section 10.

such" exa--'

[Existing
section 10
(I). second
proviso]

[Existing
section 10
(1), third
proviso]

[Section l_0
(1). ﬁfth
Proviso
modiﬁed}

[Section I 1-
Medical
Examina-
tion.]

[Recom-

mendatio n

as to sec-

[Section

1 1(5).
Recom-
inundation

for unend-

ment.]

tion 11(l J.)

in" fact, the employer is required himself to report them.' Cas-
esnotinvolvingdeethorserimisbodﬂyrmilnﬁiry a.rea.lsolik_ely
to come to his notice. We therefore ' that the period
of three days should now be computed from the date of the oc-
currence of the accident. even where an intimation of the acci-
dent has not been givcnby the workman.

1.5.10. The opening portion of section 11(1) is somewhat
involved and we propose to. recast it slightly.

Accordingly we recommend that section 11(1) should be
revised as follows:--

"11.(1) Where an accident occurs and the employer,
before the expiry of three days from the time at
which the accident occurs, oiiers to have the work-
manexaminedl':reeofchargcbyaqualifiedn1ed.i-
cal practitioner, the workman shall submit himself
for such examination, and any workman who is in
receipt of a half-monthly payment under this Act
shall, if so required, submit himself for such exami-
nation from time to time:

Provided that workman shall not be required to submit him-
self for examination by a medical practitioner other-
wise than in accordance with rules made under
this Act, or at more frequent intervals than may be

p prescribed."
5.11. In section 11(6), the words "whose instructions he

had followed" should be replaced by the words and "followed
his instructions"-,' to make the wording more simple.

1. Section 10B.

--xv-r...-.-.,e.q--..n.-.-v....>. ...._-......nn..» 2......

CHAPTER 6

PROTECTION OF COMPENSATION AND OTHER PRO-
VISIONS REGARDING RIGHT TO COMPENSATION

6.1. The right to compensation conferred by the Act could
be thwarted by agreements shutting out the right or by the
real employer engaging workmen in the name of some other
person, (say, contractors) or by the insolvency of the employ-
er, or by an illegal transfer of assets. and the like. Sections 12
to 14 and 17 aﬁord the necessary protection against such de-
vices. Section 13A provides for penalties for contravention of
certain provisions of the Act. '

These sections have a very important feature in common.
Their primary object is to protect the right to compensation and
to make certain other provisions which either serve as a sate-
guard against an attempt to circumvent or violate the provision.s
of .the Act, or nullify the effect of legal events (such as, insol-
vency) which might otherwise impair the right to compensation.
These sections and sections 15-16 which happen to be placed
amidst them will now be discussed.

6.1A. Section 12 imposes liability on a person who gets cer-
tain works done through contractors in certain circumstances.
The section is essentially linked up with the distinction between
a servant and an independent contractor. The common law
rule based on this distinction has been over ridden by this sec-
tion which has been enacted pursuant to a speciﬁc public policy.
Ordinarily the degree to which the principle may intervene to
control the details of the performance of the agent, is the broad
test applied to distinguish between a servant on the one hand
and as independent contractor on the other hand. But here,
ignréring the common law concept, a speciﬁc provision has been
ma c.

Of course such liability, apart from the Act, as may be
attached at common law to the principal of an independent
contractor, remains unaffected, if the remedy is pursued as at
common law and not under the Act.

6.2. Some of the well recognised "Common law rules" as to
independent contractors include the following. A principal is
liable in contract or tort for the acts of his agent regardless of
whether the agent is a servant, independent contractor or neither.

I_ Braden, "Employrrientwrelationship under Social Sr.~curity;m_ 33 I
Temp. L.Q. 307 .329.

.9 I
28 M of I.awf74--T

[Introduc-
tion-]

[Section 12.]

{Common
law rules as
IO UJTIUBC -

tors. ]

Special
provision
in section
12.

it' the principal directs a speciﬁc Lortious act or result, if the
agent makes certain representations which he is authorised or
apparently authorised to make, and if the situation is such that
the duty to protect the third person may not be delegated by the
principal. The principal is not liable in other circurnstances.

6.3. Drcliriarily the question who is the "empioy=.::"' of ti
person claiming to be a workman is one of fact. But the legis-
lature can make. special provisions for special situation. We
are here concerned with one such special provision. Where the
employer has engaged a contractor, there is :1 legal fiction'
whercunder the employer of the contractor is liable to workmen
engaged by the contractor. In the English Act, the words "un-
dertaken by the principal" appear, in place of the words 'which
is ordinarily part of the trade or business of the principal" which
occur in our sub--sect.ion (1),----words qualify lhe kin-:l of work
which is to be executed by the contractor."

To state the position broadly, even though the work may be
within the scope of the general purposes of the principal, he is
not iiahle in England it the work is not a, part of the trade or
business which the principal undertakes. For example. where
the manufacturers of mouldings employed a contractor to stock
timber imported by them for the purposes of their business.
they were not held liable".

6.4. The Legislature has substituted the very material words
"which is ordinarily part of the trade or business of the princi-
pal", for the words "undertaken by the principal", which occur
in the English Act. The English Act applied only to work
undertaken by the principal, but the Indian Act applies to work
done by a contractor which is ordinarily part of the trade or
business of the pri'nci'pal. "The variation was obviously delibe-
rate, and the two phrases do not mean the same thing"." It
may be that work which is ordinarily part of the trade or
business of the principal, nevertheless, was not the work under-
taken in the pnrtitrhlnr case or zrsut:'ll'_V zzricierzalcmt by the prin-
cipal.

6.5. It may be noticed that subsection (4) of section 12
(of the Indian Act) is a replica of sub-section (4) of section
6 of the English Act and refers to work undertaken or usually
undertaken by the principal. Butthc word "undertal;s:n" does
not occur in the Indian Act in the ﬁrst sub-section.

6.6. The principle of social justice underlying section 12(1)
is that where a person by contract, entrustsi' certain work to

. Section 12.

. Section 6, English Act ofi92S.
. Hockey V. West London Tirmber Co. (I914) 3 Kings Bench ll)I3.
. AIR. 1942 Horn. 20.

. This is not a paraphrase of the section.

mowing'

another person, and that other person engages a workman, the
person entrusting the work is liable as employer under the Act
(if certain conditions are satisﬁed).

The important words are:--

"any compensation which he would have been liable to
pay if that workman had been immediately employed
by him". The fact that the first mentioned person
is not the t'mmedt'nre employer thus becomes immate-
rial. The intervention of the person to whom the
work is entrusted does not destroy the legal link bet-
ween the person entrusting the work and the work-
man. To put the matter is a different Way, the nar-
row legal view of contract of employment is extend-
ed (for the purposes of the Act) if certain condi-
tions are satisfied. to the case of employment of work-
man by another person, if he is one to whom the
work has been entrusted by contract. Those condi-
tions are--

(a) the contract (entrusting the work) is in the course
of. or for the purpose of, the trade or business of
the person entrusting the work;

(b) the contract must be for the execution, by or under
the contractor, of the whole or any part of any
work which is ordinarily part of the trade or
business of the principal (i.e., the person entrust-
ing); [These two eonditions are to be found in
section 12(1)];

the premises on which the principal "has under-'

taken, or usually undertaken, as the case may he",
go executel the work or whiph are otherwise under
1s contro or management.

[This requirement is contained insection 12(4)}.

5.7. Thus, the extension of the liability beyond the im-
mediate employment seems to be based on a number of con-
ditions, namely.---_---(a) the business character of the contract,
(b) the work being part of the ordinary business, and (c) po-
tential control or management of the employer as indicated by
the geograpitical eontiguity of the premises. where the accident
has occurred.

6.8. The geographical contiguity of the premises where the
accident occured has perhaps been inserted in order to lndi~
cate the possibility of control. This is reasonable on the
whole. We recommend no change in this respect.

Sr'-uliﬂn 13 6.9. This disposes of section 12 and we may now take up
section 13. In certain circumstances a person who has paid
compensation has the right to indemnity because the person
legally liable is not the employer. Section 13 provides for this
situation and deals with the remedies of the employer against
the third person.

The section1 is an follows:---

"13. Where a workman has recovered compensation in
respect of any injury caused under circumstances
creating a legal liability of some person other than
the person by whom the compensation was paid
to pay damage in respect thereof, the person by
Whom the compensation was paid and any person
who has been called on to pay an indemnity under
section 12 shall be entitled to be indemniﬁed by
the person so liable to pay damages as aforesai ."

The words "person by whom the compensation was pai "
principally refer to the employer. The other person to whom the
section applies is the person indemnifying under section 12.
(Section 12 provides for indemnity as between the employer and
a contractor, and as between a contractor and sub-contractor
and so on). '

Some controversy seems? to have arisen in the past as to
how far section 13 is applicable between the principal contrac-
tor and the sub--contraetor. Section 12(2) was amended on
this point in 1933. This matter is now dealt with by section
12(2), as amended".

6.10. The drafting of section 13 could be made more simple
Recom- than at present and we recommend that section 13 should be

mendatlon re-drafted as follows:-----
to amend

section 13. "I3. (1) Wl:Iere---

(2.) the injury for which compe.-m'at:'on is payable under
this Act. "was caused under circumstances creating
a legal liability of any person to pay damages in
respect thereof; and
(b) the workman has, in respect of such injury, recover-
ed compensation under this Act from any other
person,

the person by whom the compensation was paid. and any person
who has been called on to pay an indemnity under section 12,
shall be entitled to be indemniﬁed as aforesaid."

1. Section 13 corresponds roughly to section 30 of the English Act of 1925.

*. See Chynibhoy V. Gunpat', /i\.I.R. I933 Born. 338.

5. See statement of Objects and Reasons annexed to the Bill of 1932, Notes
on Clause 9 (13 Feb., 1932).

6.11." Section 14 makes certain provisions relating to in-
solvency of the employer. A small verbal change is needed in
sub-section (4) where the reference to section 230 of the In-
dian Companies Act 1913 should be replaced by a reference to
section 530 of the Companies Act 19561.

6.12. Section 14A provides that compensation shall be a
that charge on assets transferred by the employer before paying
the compensation in so far as the assets consist of immovable
property. The language of the section could be made more
simple as the present drafting is a bit involved.

The following re--draft of section l4--A is therefore recom-
mended:

" J 4A. Whcre-~--

ta) liability to pay (my compensnn'on under this Act has
arisen, and

(b) the eii-rployer transfers his assets before the amount
of the compemarion has been paid.

such amount shall, notwithstanding anything contained in any
other law for the time being in force, be a first "charge on that
part of the assets so transferred which consists of immovable
property."

15.13. Section 15 relates to ships. Certain questions relat-
ing to exIra--territorial application have been separately discuss-
ccl'~'.

Sub--section (l) of section 15 lays down one of the modiﬁ-
cations applieable in case of workmen who are masters of ships
or seamen. It provides that the notice of the accident and
claim for compensation may be served on the master of the
ship; "but where the accident happened and the disablemcnt
commenced on board the ship, it shall not be necessary for any
seaman to give any notice of the accident." Since the notice
of accident (at present required under section 10) is now pro-
posed to be made optional in every case3, the quoted portion of
section 15(1) should be omitted.

6.14. Section l5( 3) relates to depositions taken outside In.
dia where an injured master or scaman is discharged in any part
of India or "His Maiesty's Dominions or in any other foreign
country". The speciﬁc mention of His Majcsty's Dorninions is
no longer required and the quoted words should be replaced bv
the words "in any foreign country". '

I. Draft not annexed.
'. S3: dl§',".l'~il;1'] r.-!atini:_ to section l uni extra-territorial af')pIiu_,'ation._.
Chapter IE.

3. See dl'St','llSSi1]n '1'-G to section It]. Para 5.2. supra.

Section 1 4
Recom-
mcndation_

Section M-
A

Section
15(1)

Sect ion
l.3(3).

Section
15(5) and
15(6).

Section
15A (New)

Section
16.

Section
17.

6.15. Sub--section (5) of section 15 bars the payment of
compensation in respect of any injury for which provision made
for payment of a gratuity, allowance or pension under certain
war--pensions scheme made under a British statute.1 or under
a scheme made in 1942 by the Central Government, entitled
"The War Pensions and Detention Allowances (Indian Seaman)
Scheme, 1942. Sub-section (6) deals with cases where a person
applies for compensation under one of the scheme referred to
above and the application is rejected or payments made in
pursuance of the application are discontinued on the ground
that the injury is not one covered by the scheme.

In such a case the limitation for giving notice of accident
for making a claim is modiﬁed--we are not concerned with the
details of the modiﬁcation.

It appears that the schemes referred to in sub--section (5) of
section 15, are now obsolete'; and, if that is so, sub-section (5')
and sub-section (6) should both be deleted}

6.16. There is no special provision in the Act in relation to
aircraft'1,-----such as is contained in section 15 as to ships. Such
a provision is obviously needed since in certain cases. persons
employed on aircraft fall within the Second Schedule. We re-
commend that section l5 should be applied to aircraft with
such modiﬁcations as are requircdﬁ.

6.17. Section 16 deals with eturns as to compensation and
needs no change.

6.18. Under section' 17. any contract or agreement whereby
a Workman relinquishes his right of compensation would be
null and void in so far as it purports to remove or reduce the
liability of any person to pay compensation. in a Gujarat ease'-',
the heirs of a deceased workman accepted an ex-gratin payment
of a sum of money from the employer, giving up whatever legal
right.r they had to claim the amount by relason of death by the
accident. The question arose whether a contract entered into
after the Iibility arose is hit by section 17. It was held that the
agreement was hit by section 17 and was void. There is no-
thing in the section which limits its operation to a contract or
agreement entered into before the liabiiiiy has arisen. The sec-
1. Pensions (Navy. Army. Air-force and Mercantile Marine) Act, I939 (2

and 3 Geo. VI. Ch. 83).
2. This is subject to veriﬁcation from the Ministry concerned.
3. In case, similar schemes are in operation in later statutes, they should
be provided for by a fresh provision.
4. As to extra-territorial application. see discussion relating tr
5. Draft not annexed.
5. Ciimmhriihen v. Burjorjr' Se.rhnc1(|972) A.C.J. 441.) (Gui) cited in the YC;i1'Iy
Digest (1971), Col. 2610 (Akbar S. Sarela 1).

section I.

tion applies irrespective of whether the contract (of the nature
contemplated by the section) is made before or after the acci-
dent.

6.19. It may be convenient to codify this judicial inter'preta~
tionl so as to make this beneﬁcial provision comprehensive. We
therefore recommend that in section 17 after the words "whe-
ther made before or after the commencement of this Act", the
words "'rmd whether nfade before or after a right to c0.rnpen.m~
tiara has nc'r.'rrred under this" Act" should be inserted.

6.20. Since the Workmen's Compensation Act is a measure
meant for the beneﬁt of the workers, it is desirable that the
workers should know of their rights under the Act. This pur-
pose can be achieved by giving wide publicity to the provisions
of this Act and one method of giving such publicity is to
require the employers to display the relevant abstracts of this
Act in their prernises--1'.e., in the place of work. In many
other Labour Laws and Social Welfare Laws, there are provi-
sions for giving publicity to those particular laws by requiring
the management to exhibit the abstracts of these Acts at promi-
nent places in their premises". One such provision. section 62
of the '\.-'lines Act, 1952, is reproduced below:

"There shall be kept posted up at or near every mine.
in English and in such other language or languages
as may be prescribed, the prescribed abstracts of
the Act and of the regulations and rules."

In the Workmerfs Compensation Act, section 32(2) (c).
also lays down that the State Government "may make rules pro-
viding for prescribing abstracts of this Act and requiring the
employers to display notices containing such abstracts. Since
this Act is a Central Act, it would be much better to have uni-
formity in the matter throughout the country. instead of
leaving it to the rules, it is desirable that a section should be
introduced in the Workmcn's Compensation Act in this respect.

6.2]. We therefore recommend the insertion of a new sec-
tion on the subject. It will also be necessary to introduce a
penalty clause for contravention of the new section. Necessary
amendment can be introduced in the penal section3 which pro-
vides for a ﬁne of Rs. 500 for contravention of certain sections
of the Act. Consequently the provision in the rule-making sec-
tion can be removed'.

l. Para 6.18. mprri.
5'. Sec --

ta) Section 108, Factories Act. I94-'E:

tb) Section 62. Mines Act, I952;

Recoin«
mcndation
as to sec-
tion 17.

Section
17A (New
Display of
abstracts.

R ecum-
nt cndat ion.

The new section requiring the display of abstracts of impor-
tant provisions of the Act will be1 on the following lines":

"HA. There shall be kept posted up at or near every
place of work where workman are employed sub-
stracts of "sections 3 and 4%

(a) in the language of the State; and

(I3) where the majority 01' the workman employed in
that place do not understand the language of the
State, also in the language of the majority of

workmen."
Section 6.22. Section 18A provides penalties for contravention of
ISA. certain provisions of the Act. We recommend the following

changes in the section:--

(a) the niaximum amount of ﬁne should be increased
from live hundred rupees to one thousand rupees,
having regard to the fall in the value of the rupee.

(b) Imprisonment upto six months should be added.

(c) Section references should be altered having regard
to the scheme proposed" for the re--arrangement of
sections 10, 10A and 10B.

(d) As a new section' relating to display of extracts is
proposed to be added, violation of the provisions of
that section should also be made punishable under
section 18A.

Section 18A should, in the light of the above discussion, be
revised as follows:---

pem. I,-c_.;_ "ISA. (1) Whoever

(a) fails to send a report which he is required to make
under section 10, or

(b) fails to maintain an irttinwrion book which he is
required to maintain under sub-section (4) of sec-
tion IOA, or

(c) fails to send to the Commissioner :1 statement which
he is required to send under sub--seetion (1) of
section 10B. or i

1. Sect ion [BA also to be amended.
". Section 32(2) to be eonsequentiallt' amended-
3, See recommendation as to section ID. IDA and 10B.

'. See rccommenda'i:>:: *0 insert section 17A.

99 '
(d) fails to make a return which he is required to make
under section 16, or

(:3) fails to display extracts of the provisions of this Act
as required by section 17A,

shall be punishable with imprisonment upto six monihs or with
ﬁne upto one thousand rupees or both."

Introduc-
tory.

Section 19

Section
20 (1)

CHAPTER 7

COM MISSIONERS,THElR JURISDICTION AN D
PROCEDURE

7.1. Sections 19 to 26 deal with the appointment of Coin-
missioners, their jurisdiction and procedure. Of course, the Act
does not contain all the law of procedure that is applicable: to
the Commissioners, because many of the matters are
left to rules.' A certain amount of uniformity in procedure
would, no doubt, be desirable; but, at the same time, having
regard to the fact that Commissioners are appointed by the
State Governments. and also in View of the need to maintain
a certain measure of elasticity in proceedings before the Com-
missioner, the present Act has left the matter mostly to the
rules conﬁning itself to a few important matters, such as, the
venue, the form of application, the power to call witnesses. the
appearance of parties, the method of recording evidence, and
costs. The provisions being sketchy, there is not much room
for improvement, except that such of the provisions as are
based on the corresponding sections of the Code of Civil Pro-
cedure, now require reexamination, in View of the changes
proposed in that Code.'-' We should also note that the pm-
vision relating to application" to the Commissioner suffers from
a basic ﬁawt. The elementary (but fundamental) proposition
that a claim may be made is missing.

If there is no bar of ]imitation5, then, a claim may be enter-
tained by the Comn1issioner--this proposition is given only an
indirect recognition elsewhere in the Act". The matter should,
we think be dealt with more directly. We shall deal with the
point in detail7 under section 22.

7.2. Section 19 needs no change.

7.21-'L Section 20(1) rcadsw

"20(1) The State Government, may by notiﬁcation in
the Official Gazette, appoint any person to be a
Commissioner for Workmeifs Compensation for
such area as may be speciﬁed in the notiﬁcation."

._Scctior1 azmrcu. id). to. (i), an etc.

1. See discussion relating to section 25.
9. Section 22.

'. Sec para 7.13, irrfm.

5. Section It).

5. Section 10.

. Para 7.13, irrfra.

100

10]

Usually, senior judicial oﬂicers are appointed as Commission-
ers. But it is not feasible to impose a rigid requirement that
oﬂicers appointed as Commissioners should have judicial ex-
perience. Hence. we are unable to accept a suggestion made
in that rcgardl.

7.3. There is a brief pro-vision relating to experts in section
20(3). Under this sub--seetion, any Commissioner may, for the
purposes of deciding any matter referred to him for decision
under this Act, choose one or more persons possessing special
knowledge of any subject relating to the matter under inquiry,
"to assist him in holding the inquiry". The provision is not
conﬁned to medical experts, and any matter on which "special
knowledge" can be acquired, could come within this provision.
The number of reported cases on this sub--section is very small',
but its utility is obvious.

However, there is a certain amount of obscurity as to the
exact position of the person chosen "to assist the Commissioner
in holding the inquiry" under the section. Is he in the position
of an assessor, or is he in the position of an expert witness '5'
If he is an assessor, then, he is practically a member of the
Court". If he is an expert witness, he would be subject to cross-
cxaminution by the parties.

7.4. In general, when the opinion of a person having spe-
cial knowledge of a subject is intended to be utilised by or
before a Court, there are several courses open, as will be evident
from the brief analysis given below :--

( i) A.r.s'c5.mr--The person possessing special knowledge
could be an 'assessor'. He then becomes a member
of the court. He sits throughout the proceedings.
He does not give any "evidence? and cannot, there-

fore, be subject to cross--examination by the parties'.

(ii) Court' expert--Thc person possessing special know--
ledge could be described as a "court expert"5. He
remains independent of the parties, but is not a
. member of the court. What he renders to the court
can be properly called a "report" or "advice".
This, category is not known to our legal system.
We are referring to it since the present provision,
it may be argued, is in this category.

I. S. No. 70 (Suggestion by one High Court).

3. A/char 4/! v. Jrrvn Bcntral Litre, Ca!r'm'm. /\.l.R. I937 Cal. 697. 70!. 703.
. The ward "court"' is used here in a wide sense.

. CK English Act. I925. First Schedule Rules 5 and II.

5, For history ofcxpert evidence. see Learned Hand's article in 15 Harvard

Law Rev. 40.

Section
20(3)
obscuril y of
position of
expert.

Recom-
mend-atio I1.

102

(iii) Court wime.rs------The person having special know-
ledge could be treated as a court witness. In this
case, he has to be summoned1 and examined on
oath, and would be subject to c1'0ss--examination
by either partyz.

(iv) Witness 0)' a party-----The person possessing special
knowledge could be summoned as a witness at the
instance of either party (or produced by a party
without a summons), Like any other witness, he
would be examined on oath, and cross-examined.
The court has no initiative in the matter.

7.5. It appears to us that so far as the Workmen's Compen-
sation Act is concerned, there is no need to carve out a separate
category--(ii) above'*',--for the reasons already mentioned. Nor
is it necessary to give the specialist the position of an assessor'---
(i) above. Category (iv) abov£=ﬁ\vitness of a par1.y---nectls
no express provision.

7.6. and 7.7. It is therefore enough to empower the Court
to call him as a Court wit_ness--category (iii) above"-a.

7.8. Power to summon a court witness is already contained
in the Code of Civil Prowdure, and that will be available to the
Commissioner'.

7.9. If the specialist appointed under section 20(3) gives
an opinion, the parties should have the right to test the validity
of his opinion. At present, the person appointed is more of the
nature of an assessor, and is not subject to examination by the
parties. The present provision is also defective in another res-
pect; the specialist may be consulted in chambers by the Corn-
missioner, and the parties then know nothing of the advice
given by him. This defect should be removed.

7.10. In the light of the above discussion, we recommend
that in place of section 20(3), the following subsection should
be substituted :--

"( 3) If, for the determination of any matter, the app-
raisal of which requires special knowledge. it is

1, Section 23. Workmen 5 Compensation Act.
2. See case-law on --

(at Order I6. rule 14, Code of Civil Procedure, I908;

(b) Section 540, Code of Criminal Procedure, 1898; and corre:p.)nding

Section in the 1974 Code.

(c) Section I65, Indian Evidence
". Para 7.4 (ii) supra.
3--s_ Para 7.4 (iii) supra
'. Section 23, Workmens Compensation Act. and Order 16, rule 14. Code
of' Civil Procedure, 1908.

Act. I872.

I03

necessary to obtain the opinion of an expert the
Commissioner may summon such expert to appear
as a witness and express his opinion on that matter.

(3A) Where a person summoned under sub--section (3)
appears, he shall be examined by the Commissioner,
and may then be cross-examined by the parties."

7.11. Section 21 deals with the venue of proceedings and
the transfer of cases.'

Under section 21(1), any matter to be done by or before
the Commissioner shall, subject to the provisions of the Act and
the Rules, he done by or before a Commissioner for the area
in which the accident took place which resulted in the injury.
Under the proviso to the sub--seetion, which is meant for cases
where the workman is the master of a ship or a seaman, any
such matter may be done by or before a Commissioner for the
area in which the owner or agent of the ship resides or carries
on business. The reference in section 21( 1) to "agent of the
ship" is really a reference to the "agent of the owner of the ship".
We recommend that this should be brought out by a suitable
verbal amendment."

7.12. Section 22, sub--soction (1) begins negatively, by pro-
viding that no application for the settlement of any m.atter by
a Commissioner (other than an application by a dependant or
dependants for compensation), shall be made unless and until
some question has arisen between the parties in connection there-
with, which they have been unable to settle by agreement. This
provision, at ﬁrst sight, gives the impression that before the
Commissioner can assume jurisdiction, some attempt at settle-
ment must have taken place between the parties and proved
abortive. This, of course. is not the intention; and it has been
judiciallyi' made clear that there is no obligation on the parties
to attempt to settle, before they can proceed to make an appli-
cation to the Commissioner.

7.13. An equally serious flaw in the present Act is, that the
elementary proposition that a workman can make an applica-
tion for compensation,--which, of course, is* implicit in the
Act~--does not ﬁnd a place in the section. In view of the gene-
ral understanding that the right to make an application under a
special statute should be conferred in express words, it is desir-
able to have an express provision, particularly because the right
to compensation under the Act is different from the common
law right to damages. The prevalent view seems to be that a
claim by the workman before the Commissioner does not fall

I. As to the proviso, see para lB.23 supra.

'. Draft not annexed.

'. C. E. Corpararfon v. Dureraj, A.l.R. 1960 Orissa 39.
'. See also para 7.l, mp:-a.

Section
21 (1).

Section
22(1) .

Express pro-
vision as to
right to
make an
applica-
tion desir-
able.

D?-""'

Recommend-
ations, to
Amend sec-
tion 22.

Sect ion

22 (2)(b)

Recommend-
ations.

Section 12A

I04

within section 22, but within section 10. But every section 10
begins negatively, vide the words "no claim shall be entertained"
in section 10. It bars a claim ﬁled after the expiry of the period
of limitation. We are of the view that at positive pmvision
empowering the person concerned to make 21 claim is needed.

7.14. In view of what is stated above, we recommend that
in place of sub-section (1) of section 22, the following provi-
szons should be substituted. -

"i'_ 1) Where an ctccfdenr occtzrs in respect of ivnfcfi lia-
bility to pay com!pcn.i':n't'on under this Act arises,
in claim for such L'0J.'r?jJeﬂ.s'££1fOIi may, sub,"ec'1' to this
provisions of this Act, he made before the Commis-
.S'l0fl€l'.

(IA) Srrbfecz to the provisfom: of suh--.rec!E.:).=i (1), no
application for the settlement of any matter by :1
Commissioner, other than an application by a dc-
pendant or dependant [or compensation, shall be
mac c--

(a) rmless and until some qiiestion. has arisen between
the parties. or

(b) if the parties have been able to .-r.ezti'e the quesriim
by agreement."

7.15. Under section 22(2} (b), the following particulars,
are to be given in an application to the Commissioners :'----~

"(bl In the case of a claim for compensation against
an employer, the date of service of the notice oi'
the accident on the employer, and. if such notice
has not been served or has not been sen'-2d in due
time, the reason for such omission."

7.16. As the giving of notice of accident by the workman
is not to be optional' and is to be described as an intimation,
we recommend that as a consequential amendment, section
22(2) (13) should be revised as follows :

"(b} in the case of a claim for compensation against-

an employer, the date of service of im.':':rmn'on of
the accident on the employer, if sue}: Enririmiirnn has
been served... . . . . . ...."

7.17. There is a verbal point concerning section 22_A~ under
which, after the deposit of a sum by an employer as "compensa-
tion for injury resulting in death, the Commissioner has power

I. See discussion as to section 10.

-I15-9 r

105

to require the employer to make a further deposit. In sub-
section (2) of the section, such a determination of the Commis-
sioner is described as an "award". But, everywhere else in the
Act, the word used is "order". The use of a diﬁerent word is
not appropriate, and, in fact, has created some controversy in
another ﬁeld, namely, whether1 the decision of the High Court
under section 30 on appeal from an order of the Commissioner
is a "judgment" within clause 15. of the Letters Patent.

7.18. It seems, therefore, to be advisable to replace the 1§":'f1"c]':l't'iOnS
word "award" by the word "order" in section 22A. We re- ' '
commend that section 22A should be so amended.

7.19. Section 23 deals with the powers and procedure of Sf=€ii0'133
Commissioners. It needs no change.

7.20. Section 24 relates to the appearance of parties. It 530W" 24
needs no change.

7.21. For the cllective representation of claimants under Se3ti0J124A
the Act, a provision regarding legal aid is desirable. In the and 24B
absence of legal aid, the provisions conferring rights remain a (Ne"E'3'
dead latter, for want of proper assertion of those rights. In L°gal"'.d-
this connection, attention may be invited to our Report on the
Code of Civil Procedure''', where we have made a recommenda-
tion that where a person permitted to sue as an indigent is not
represented by a pleader, the court shall assign a pleader to
him at the expense of the State.

7.2lA. In relation to the eligibility for proposed legal aid, E-lisibilityj

we have, after some consideration, co-me to the conclusion that f'"' 1°33' "d-
it is not necessary to lay down any means test. The right to

legal aid should be available to every workman, irrespective of

his ﬁnancial condition. We do not think that such a provision

would east any undue burden on the State, because, in practice,

those who can aﬁord to engage a private lawyer, will always

do so.

While legal aid for workmen who are injured and who are
alive presents no diﬂiculties, a peculiar difﬁeulty might arise in
relation to their dependants. This difficulty arises because of
the fact that there might be a conflict of interest amongst the
dependants, where rival claims are put up under section 8(5)
in respect of apportionment of compensation amongst the var-
ious dependants. It is obvious that the oiﬁeial lawyer--whorn
we propose to designate as the Claims Prosecutor would be
placed in an embarrassing position if he were to be burdened
with the duty of pleading before the Commissioner the case of
each dependant in respect of his claim to apportionment. In
ifsiic'"'R§ga}'F€'.W5ic:non Mackenzie at £17., A.I,R. 1970, Bom. 273.233 IE:

& .
1. See, for example, section 30, which speaks of "order".

3. 54th Report (Code of Civil Procedure), Chapter 33, recommendation to
insert Order 33. rule 9A (new).

Recommend-

[06

so far as the case of dependants is common to all of them, he
would have no diﬂiculty, but where there is a conﬂict of in«
terest of the nature mentioned above, his position would be
embarrassing. We, therefore, propose to make it clear that in
such cases, he will not represent the dependants in respect of
matters on which there is a conflict of interest. In case of con-
ﬂict, the official lawyer shall not represent them in respect to
the conflict. Subject to this rider, it may be provided that every
workmanl (alive) and all dependatns together shah. be entitled
to be represented by an oﬁicial lawyer.

7 .22. We are not suggesting any elaborate provisions as to
procedure for grant of legal aid. As regards appeals and re-
ferences before the High Court, the procedure in this regard
will be governed by rules to be made by the High Court. As
to proceedings before the Commissioner, the necessary rules
can be made by the Government under the general rule--mak'mg
power. If necessary, the relevant section? can be suitably
ampliﬁed.

Procedure for

grant oflegal 7.23 & 7.24. We may note that the Committee on Legal"

aid; Aid has also made a recommendation" as to legal aid in pro-
ceedings under the Workmen's Compensation Act. We ap-
prehend, however, that implementation of the Report will take
time. because that Report contemplates a comprehensive scheme.
In the meantime, it is necessary to make some provision in the
Workmerfs Compensation Act as to legal aid.

We hope that our recommendations will be implemented at
an early date.

7.25. We are of the view that so far as proceedings before
the Commissioner are concerned, there should be at least one
legal practitioner in each Cornrnissioner's office, who should
conduct cases on behalf of workmen and dependants. He
should be appointed by the State Government.

As regards proceedings before the High Court, the High
Court should assign an Advocate ad hoc at the expense of the
State, if the workman is qualiﬁed for legal and under our scheme.

7.26. Accordingly, we recommend insertion of the follow-
ing new sections :--

"24.A. (1). The State Government shall, in respect of
every area for which a Commissioner is appointed,
appoint a qualiﬁed legal practitioner as Claim Prose»
cuter.

ation.

1. Irrespective of income.
'. Section 32('2)(c}.
'. Report of the Expert Committee on Legal Aid (1973), Ch. 8.

mn-

- 'II'hI-sung

107

(2) The claims Prosecutor shall represent,without fee,
all workmen and dependants in proceedings betore
the Commissioner, except those who do not WlSi'1 to

avail of his services.

Provided that where there is a conflict of interests among,
the dependants, the Claims Prosecutor shall not
represent them in relation to such conflict."

"24B. (1) Where, in proceedings under this Act before
the High Court, a workman or dependant is not
represented by an advocate, the High Court shall
assign an advocate to him; at the expense of the

State.

(2) The High Court may, with the previous approval"
of the State Government, make rules providing

for--

(a) the mode of selecting advocates to be assigned in
the High Court under subsection (1);

(b) the facilities to be allowed to such advocates in
the High Court;

(c) the fees payable to such advocates by the Gov-
ernment, and, generally, for carrying out the pur-
poses of sub--section (l)."

7.27. Section 25 is as follows :--

"25. The Commissioner shall make a brief memoran-
dum of the substance of the evidence of every wit-
ness as the examination of the witness proceeds, and
such memorandum shall be written and signed "by
the Commissioner with is own hand and shall form
part of the record-

Provided that, it' the Commissioner is prevented from
making such memorandum. he shall record the rea-
son of his inability to do so and shall cause such
memorandum to be made in writing from his dicta-
tion and shall, sign the same, and such mernorandum
shall form part of the record.

Provided further that the evidence of any medical wit-
ness shall be taken down as nearly as may be word
for word."

It would be noticed that under this section the Commissioner
can dictate the memorandum of evidence only if he records the

Svction 25

Scction_25.-

Rt cording of

evidence

reason of his inability to make the memorandum himself: This .

28 M of Law/74--8

Re::omm<:r'.l~
anon.

SCCIE-')t'.l 36.

108

restrictive provision follows the corresponding provision Ln the
Code of Civil Procedure.' We are of the View that the dicta-
tion by the Commissioner should be provided for, irrrspective of
any question whether he is able or unable to make the memo-
randum himself. We have made a similar recommendation in
our Report on the Code of Civil Procedure."

7.23. Accordingly, we recommend that section should be

amended so as to read as follows :~-

"25. (I) The Commissioner shall, as the examination
of each witness proceeds, make or de'cta1.3 or C{I!-l.':'n'.'
to the mechanically recorded--

(a} the evidence of arty merffcol wizness, as nearly as
may he, word for word;

(b) a brief memorandum of the substattrc of the

evidence of ever)' other witness.

(2) Such ew'(Eence'or memorandum, as the care may hr.-
shall be signed or otherwise authenticated by the
Commissioner, and shall form part of the record."

7.29. Section 26 relates to costs. It needs no change.

1. Order 13. Rules 5 and 13, .C.P.C. (Appealable 2tl:l¥r1on-oopeo;|ie_ cases
respectively).

3. 54th Report, Chapter 18.

fly'-'t
1

CHAPTER 8

REFERENCE, REGISTRATION OF AGREEMENTS,
APPEAL AND RECOVERY

3.1. In certain cases, the Commissioner may like to submit
to the High Court a question of law for its decision. Even
where the Commissioner has already made his order, an appeal
lies to the High Court from his order, in certain cases. On
the other hand, the parties may themselves settle the matter by
agreement; but, in that case, the agreement must be registered
with the Commissioner, who has to be satisﬁed as to its gen-
uineness. Finally, where an amount becomes payable under
the Act by any person. either. by reason of an order of the Com-
missioner or under an agreement, or otherwise, a provision as
to the recovery of the amount has to be made. These matters
are dealt with in sections 27 to 31, which will be dealt with in

this chapter.

8.2. Section 27 deals with the power to submit cases.
Registration of agreements is dealt with in sections 28 and 29.
They need no change.

8.3. Section 30 deals with appeals from the orders of the
Commissioner. Sub-section (3) of the section reads thus I:

"The provisions of section 5 of the Indian Limitation
Act. [908 shall be applicable to appeals under this
section." This sub--scction is now redundant, in
view of section 5, Limitation Act, 1963, and should
be deleted. We recommend its deletion.

8.4. Section 30A provides for withholding payment of sums
deposited before the Commissioner, pending appeal. No
change appears to be needed in this section.

8.5. Section 31 deals with recovery, and needs no change.

109

Introd1.'I::-
tory

Sections 27
to 29.

Section 30-
Recommcn
dations to
delete sub-
section (3).

Section 30A.

Section 3].

Introduc-
tory.

Section 32
(2}ﬁ

V ario us
clauses
requiring
amend-
ment.

CHAPTER 9

RULES

9.1. This chapter is concerned with the power to make rules
(sections 32 to 36). The principal section to be considered
is section 32, which deals with power oi" the State Government
to make rules. Certain changes are required in sub-section (2)
of section 32, which enumerates the matters in respect of which
rules may be made. These are mentioned below.

9.2. Clause (i)--\Under section 32(2),
be prescribed for proceedings under the Act.
there should be a maximum of, say, two rupeesﬂ
applications.

clause (j) fees may
We think that
as regards

Accordingly, we recommend that in clause (j), after the
words "'fees", the words and brackets "(not exceeding two
rupees in Case of crpplt'c'cm'ons)"' should be inserted.

Clause (1).-----The notice book under (existing) section 1.0
is now proposed to- be made compulsory? and is to be called an
intimation book.

Accordingly, clause (1) of section 32(2) should be revised
as follows :»---

"(1) for prescribing . . . . ..the form of intimation book
to be maintained by employees."

Clause (In): In clause (m) of section 32(2), the refer-
ence to "section 10A" should be replaced by a rc:'ercnce to
"section 10B", in view of proposed rearrangement" of sections
10, 10A and 10B.

_ Clause (n) : Since the report under (existing) section 10B
15 now to be made compulsory in every case', clause (n) should
be omitted from section 32(2).

Clause (0): Clause (o) empowers the State Government
make rules requiring employers to display abstracts of the

1. giesegees are in addition to the court fees (if any) levied under the Court
ces ct.

". See discussion re. section 10.
3. See discussion as to sections 10, 10A and 10B.
4. See discussion as to section 10B.

110

lll

Act. We have recotnmendedl the insertion of a speciﬁc SBCIICIH
on the subject. Clause (0), therefore, becomes redundant. and
should be deleted from section 32(2).

A new clause should be added as to rules

Clause (cc) :
It will be as follows :--

regarding legal aid".

"(cc) prescribing the mode of selecting advocates to be
assigned in proceedings before the Cornmissioner
under section 24A, the facili'lie.s' to be allowed to
such advocates by the Government, and, generaliv
for carrying out the purposes of sections 24A, in
so for as it relates to proceedings before the Com-
missioner."

9.3. The next Section requiring change is section 35(1).
In section 35(1), main paragraph, the reference to any part of
i-lis Majesty's Dominions, (which occurs twice) should be omit-
ted. The words "any other country" should sulﬁce. Other
consequential changes should be made.

9.4. While rules can be made under section 35(1) to give
cilect to arrangements for the transfer of money deposited with
a Commissioner where the person entitled to the money resides:
in a foreign country, the proviso to the sub--seetion lays down
that a sum deposited in respect of a fatal accident shall not be
transferred without the consent of the employer concerned, until
the Commissioner has passed orders determining its distribution
under section 8(4) and 8(5). During our discussions we con--
sidered the question whether there should also be a provision
prohibiting such transfer, where the employee prefers an appeal.
We think that this would be a reasonable provision, and accord-
ingly recommend that the following further proviso should be
inserted3 below the existing proviso to section 35(1) :--

"Provided further that where the eriipioyer concerned
prefers an ripped! under clause (a) of sub-secn'0rz
(1) of section 30, the sum deposited under -Ihfs
Act in respect of any accident shall not be so trans-
ferred without the consent of the ernplorer concern-
ed until the appeal is disposed of."

9.5.' Section 36 needs no change.

1. Se: discussion relating to section 17A.
3. Sc-3 discussion re. s. 26.11'-\ and 2413. (New).
3. Cf". section 30A.

Section 35
(1) main
paragraplt
rcconimen.
dalion to
amend.

.'-Section 35
(' E) Second
proviso
(Nﬂw'j.

Secti c n 35.

CHAPTER 10

SCHEDULES
Inu-oduc- 10.1. The Act has four Schedules annexed to it, namely.----
'°"' SCHEDULE 1. List of injuries deemed to result in

perman cnt to-ta] disablcment.

SCHEDULE 2. List of persons who, subject to the pro-
visions of section 2(l)(n), are includ-
ed in the deﬁnition of Workman.

SCHEDULE 3. List of occupational diseases.
SCHEDULE 4. Compensation payable in certain cases.

The ﬁrst and fourth Schedules are important for the pur-
pose of computing the amount of compensation. The Second
Schedule is relevant to the scope of the Act. The Third Sche-
dule is important, since it lists the diseases which attract the
application of the Act.

First S¢hC- 10.1A. We think that it is not necessary to recommend any
'll-""*""0 changes in the ﬁrst Schedule, and therefore we have no sugges-

tions to make with reference to that Schedule.

Second 10.2. With reference to the Second Schedule, we frst come
Sggiuiggt to an important type of employment, namely, agricultural em-
in ag§;'__u]_ ployment. The present scheme of the Act concentrates on in-
iui-e_ dustrial employment, and, though some activities connected with
agriculture are mentioned in some of the items in the Second
Schedule, there is no comprehensive item relating to agriculture.
Having regard to certain important consideration,' this matter

requires detailed discussion.

Directive 10.3. We have already rnentioncdi' that the Constitution-
]_"""C.'l""5 lavs down the Directive Principle" that the State shall try to
lelamlg 1° ' t th lfa of the 'co le b' sec rin (.1 0t t"

economic promo c_ e we . re p_ p y ._ u _g an 'or cc mg,
justice and as effectively as 1! may. a social order in Wh1Cl'I _]l.lS[lCE:, social,
conditions economic and political, shall inform all the institution; of the

0"W0fk- national life.

10.4. In article 43, the Constitution provides that the State
shall endeavour "to secure by suitable legislation ............. .. to
all Workers agricultural, industrial or otherwise .......... .. condi-
tions of work ensuring a decent standard of life." This article

1. See irrﬁm.
2. Chapter 1 supra.
3. Article 38 of the Constitution.

112

113

not only speciﬁcally mentions agricultural workers, but also
places them in the forefront, thus indicating the desirability of
giving a priority to them.

10.5. Economically, agricultural labourers are the poorest.'
Socially, they are the lowest in strata? They are not organised.
They are heavily in debt. Moreover, any imbalance in their
economic condition is likely to have serious repercussions on
the general economy of the country. Hence, it is specially
necessary that the extension of the Act to them should be con-
sidered as an urgent measure of social justice. Their lot was
neglected for a long time, in framing welfare. legislation. This
neglect, during the pre--independenee period, may have been due
to the fact that much of the legislation relating to welfare of
labour was modelled on the lines of the corresponding laws in

Western countrres, where agriculture did not possess primary
importance.

We are making these general observations in order to ex-

plain the need for expanding the scope of the Act by extending
it to agricultural workers.

10.5A. We may mention that persons employed in agricul-
ture have, in the course of their duties. to subject themselves to
various hazards. The following list of the hazardous factors
or activities is illustrative only.------

(i)
(ii)
(iii)

(iv)

use of pesticides,

snakes, jackals or other dangerous creatures.
hazards from bunds or excavation, or
carrying heavy loads.

Of course, the liability to pay compensation under our pre-
posal will not be conﬁned to accidents arising from these haz-
ards. We have mentioned them merely to emphasise the justi-
fiability of extending the Act to agricultural employment, subiect
to the criteria to be inserted in that behalf".

10.6. At the same time, we realise that it would he imprac-
ticable to extend the Act to agricultural. employment in general,
because such an extension would bring in, within the scope of
the Act an umnanageably large number of persons. We have
to have due regard to the employer's capacity to pay, as also to
the need for the existence of an organised activity, and also to

the nearness of hazards, in deciding the activities to which the
Act should be extended.

1. K. K. Ghosh. Agricultural Labour in India, (1969) page
'. K. K. Ghosh, Agricultural
". Para i0.ll, .ra_r:ra.

97.
Labour in India. (1969), page 79.

Considera-
tions to be
borne in
mind.

r=§_,,/

Possible
tests.

Present
position--.
Second
Schedule

114

10.7. We have no speciﬁc material before us in this con-
nection. But tentatively. as a. common sense test, we are men-
tioning certain possible criteria. Government may adopt one of
them, or devise any other test for ensuring that only persons
having the capacity to pay will be covered. The criterion in
this regard should be objective, not involving determination of

nice questions of fact or law.

The possible tests are:

(a) Minimum man days, i.e. the number of labourers
multiplied by the number of days for which they
were employed during a speciﬁed period should
satisfy a certain minimum, or

Minimum number of labourers should have been
employed for a minimum number, of rays during
a speciﬁed period; or

(cl) Acreage under cultivation and quality of. and should

be of a speciﬁed minimum grade;
(c) Any other test which may he considered appropriate
by Parliament.

(b)

We make no positive recommendation as to the test to be
adopted, but, as already stated, we leave it to Parliament to
adopt any of the test suggested above by us, or to adopt any
other test which is just and fair, at the same time avoiding

complicated questions.

\Ve did not hold an inquiry on this point, because an in-
quiry by us would have involved considerable expense which
we wished to avoid at the present time. Since conditions vary
from State to State, the inquiry would also be complicated and
time-consuming. Government, with its resources, can deal with
details in lesser time, and with lesser expense.

With these preliminary observations, we proceed to state
the present position regarding employment in agriculture, and to
consider the changes needed.

present position, the Second
Schedule has to be consulted. The Schedule itself is a very
long one, containing entries (i) to (xxxii). It would appear
that the only items which can possibly be pressed into service
in connection with agricultural employment, are items: (iii) and
(xxix) of the Schedule, quoted below' :--

10.8. For ascertaining the

"{iii) employed for the purpose of making. altering,
repairing ornamenting, ﬁnishing or otherwise adapt-
ing for use, transport or sale any article or part of

I. Seconrhghedule, iterns (iii) and (xxix).

ll5

an article in any premises wherein or within the
precincts whereof twenty or more persons are so
employed;

(xxix). employed in farming by tractors or other eon-
tnvanees driven by steam or other mechanical power
or by electricity."

Item (iii), quoted above, cannot be applied to agricultural
employment without straining the language. item (xxix), quo-
ted above, is conﬁned to the actual process of 'farming', and
also requires the use of speciﬁed contrivances.

There is an item connected with tube--we]Is, which reads as
i'ollows1:--

"(xx:It) employed, otherwise than in a clerical capacity,
in the construction, working' repair or maintenance.
of a tube-well."

There are also specific items relating to coffee etc. and palm-
trees. But all these are conﬁned to speciﬁc processes. There
is no item covering agricultural employment in general.

10.10. We have already noted" that some of the notiﬁcations
issued on the subject are relevant to agricultural operations. But
there has been no systematic attempt at a comprehensive amend--
ment in this respect.

10.11. In so far as mechanical and allied eontrivances are
used in employment in agriculture also, the employment be-
comes as much hazardous as industrial employment; and the ex-
tension of the Act to injuries resulting from accidents caused
by such contrivances in agricultural employment would, there-
fore, be justiﬁed in principle part from the additional consider-
ation that the Second Schedule to the Act already contains men-
tion of one type of employment in agriculture," relating to
persons employment in farming by tractors etc.. as we have
already poin 'ed out'. The question, however, still remains.
whether the Act should be extended to employment in agricul-
ture.

10.12. Before we took up the question of revision of the entire
Act, we had taken up sun man: the limited question of extension
of the Act to employment in agriculture, and our tentative pro--
posals on the subject were circulated for comments to the
Ministry concerned and to State Governments and others. From.

1. Second Schedule, item 30.
3. Para l.'\.2. supra.

3. Second Schedule item 29.
'. See para 10.8, srrprct.

l\'otilica--
tion by
State
Govern-
ments.

Hazard
constituted
by mecha-
nical con-
trivances
used in

ag ricui-
ture.

Views recei-
ved from
States by
Ministries-

obi,

Importance
of Agricuf-
tu1'alemploy-
merit

lit')

the comments which we received from the Ministry of Labour}
it appears that the Ministry had also circulated a similar proposal
to States. That Ministry has been good enough to furnish us
with a gist of the comments received from State Governments,
as well as a list of the hazardous employments in agriculture as
forwarded by various States. We have studied those lists, and,
while we ﬁnd that many of the items suggested in the lists are
substantially covered by existing items in the Second Schedule,

a few are not so covered.

lO.13. It was observed from the replies received from the
State Governments" that some State Governments were not
favourably inclined to the proposal for eiitenscion of the1pro-
visions of the Act to the workmen emp oye in agricu ture.
The arguments given by them against the proposal were broadly
on the following lines :--

(il Many agrieulturists have small holdings, and they
will not be in a position to bear the expenditure on
payment of compensation under the Act.
Scattered nature of employment, illiteracy among
the employers, and employees. and poor means of
communication to reach the place of employment
will present :1 diﬂiculty of considerable magnitude
in the administration and execution of the provisions
of the Act ;

In agriculture, as opposed to industrial type of work,
the manual work is not directly exposed to hazards
and hence does not involve risk to life, except when
farming through mechanised system is done by mak-
lng use of tractors etc. digging of channels, making
_ I? bunds etc. which are already covered under the
Ct.

lO.14. We have taken all these points into consideration. We
hope that the limited recommendations which we are going to
make Wlll. avoid the diﬂiculties said to be likely to arise. As
we have already point out", our intention is to cover only those
employers who can afford to bear the expense.

(ii)

(iii)

10.15. Finally. we would like to re--emphasise.the importance
of agricultural employment. Writing in 1969. the National Corn-
mission on Labour' noted as follows :-~-- (

"Agricultural labour excluding small cultivators, accord-
mg i0 the Census. accounts for 30.6 millions. Agri-
culture in its broad connotation accounts for nearly

lllcptt. of Labour and Re|iabilita-

'. Comments of the Ministry of Labour,
Hon (1? October, 1973).

". Para 10.1], .rr.rpm.

". Para I0.ll. .r.'em'(:.

4. National Commission on labour Report. ([969). page 394, para 28.6.

117

50 per cent of our national income and engages

about 70 per cent of the working population."
The same Commission noted' that agricultural labour is most-
ly provided by economically and socially backward classes. 'These
ﬁgures and facts bring out the magnitude of this occupation of
employment in agriculture. It is also well--known that I'l'lCCl'l3.11l-
sution is on the increase in agriculture as in other walks of life.

lU.l6. We Woulci also like to quote what was stated in a
recent study" dealing with personal injurics--

"The rate at which social institutions and ideas are being
turned upside down is not merely clran1atic--il is
accelerating every year in a fashion which demands
a great deal of mental energy to keep pace. it can-
not be good enough, therefore. to adjust merely to
the contemporary needs. Some deliberate attention
should be given to the foreseeable demands oi." the
years immediately ahead. And if there may seem to
be a weight of tradition against change, at least it
is worth remembering that the apparent heresies of
one generation become the orthodoxies of the next.
The ultimate validity of any social measure will
depend not upon. its antecedents. but upon its current
and future utility."

10.17. There is, therefore, considerable justification for widen-
ing the scope of the Act on the subject mentioned above.

10.18. Before making our recommendation on the subject,
we may ﬁrst dispose of the course to be adopted for so widen--
ing the Act, i.e. for extending the beneﬁts of the Act to agricul-
tural employment as indicated above. There are two courses
open. One method would require only a notiﬁcation by the State
Government. The State Government has power" to add to the
List in the Second Schedule, any class of persons employed in
any occupation which, the State Government is satisﬁed, is a
"hazardous occupation". This power can be utilised for the
above purpose. The other alternative is an amendment of the
Act by Parliament. We are deﬁnitely in favour of the latter
course. as it would introduce uniformity.

This takes us to the question of legislative competence. that is
to say.__competencc of Parliament to extend the Act to agricultural
employment.

1. National Commission on Labour. Report (1969). page 393, para 28.4.
3.Woocll1ouse Cornmis.-iion----Report on compensation for persona] in-

.ll!|'J" (NEW Zéalimcll (1959). Dam 33. cited in note on Contpensation for
personal injury (1969) 20 l..C'.L.Q. l9l. I96.

'3. Section 2(3).

Deslrilbi lily
ct" a:ncnd--
rtent.

E.xtension
of the AC!-
how to be
acheixed.

Legislative
power to
enact the
amnediiient
under consi-
deration.

RtiCOlT1l!TlCl'.-
dation rela-

Cl::§l03.ments course, be the actual or potential hazards

i ii agricul-
tiire.

Item 1 -
'6XClLISlO11 of
clerks.

118

IU.l9. Under the Constitution, the power to make a law for
the "welfare of labour" is a concurrent one, and amongst the
sub--heads of the power as mentioned' in the relevant legislative
entry, "workmeifs compensation", is speciﬁcally mentioned. That
sub--head is, obviously, wide enough to cover legislation relating
to workmen connected with agricultural employment. There
should, therefore, be no constitutional diﬁiculty if an amendment
by Parliamentary legislation is recommended and undertaken to
extend the Act to such workman. In fact, entry 29 in the Second
Schedule to the Act was amended in 1959, and the arnendnicnt

illustrates actual exercise of the power.

10.20. Having taken the various aspects into consi-Jeratioii,
we are making certain reconiineiidations on the subject. it our
reconiniendations are accepted. we trust that all the usual hazards
of agriculture will be covered by a combined operation of the
existing and new entries relevant to agricultural ripei'iit3:>its.

10.21. We now proceed to deal with the lines on ii-Eiieli the
amendment should be made. The principal consideration will. of
in the ciiipleymeiit.
Such hazards may be evidenced by the size of the uiidertaking,
or by the nature and area of work, and the like-. In the first
place, therefore, we recommend extension of the Act to any agri-
cultural employment which satisﬁes the criterion to be inserted in
this regard after determination by Parliament. We have already?
indicated the possible criteria.

10.22 and 10.23. In addition to what we have recommended
above,'-' we recommend that where any agricultural operation in-
volves the use or handling of any contrivance driven by steam or
other mechanical power or by electricity, the Act shouid apply.
The hazard supplies the justiﬁcation in such cases*'. In such
cases, the application of the Act should be irrespective. of the
capacity to pay. this being merely an extension of what is con-
tained in the Second Schedule, item 29.

l0.24. We have ﬁnished consideration of agricultural employ-
ment. We now take up the amendments needed in the Second
Schedule in other respects. We have a few comments on item l.

which reads thus --

"employed, otherwise than in a clerical capacity or on :1
railway in connection with the operation or l'l'lEllilEC.'Il-
ance of_a lift or a vehicle propelled by steam or other
mechanical power or by electricity or in coriiiection
with the loading or unloading of anv such vehicle."

T. Constitution, 7th Schedule, Concurrent list. item
2. Para 10.7, supra.
3. Para 10.2], supra.
See para 10.! l, ¢M_0I'{t.

24.

.F--~,...-.. fw-

119

The expression "in connection with", which appears in item
1, is an expression of wide content} With this, one may con-
trast the expression "in the construction of", which could have a
narrow meaning? Those words are used in item 10.

10.25. The exclusion of persons employed in a clerical capa-
c.ity is of interest. In this connection, it may be noted that there
are, in the Second Schedule, several items which exclude persons
working in a clerical capacity?' The formula varies. First, In
some of the entries, the substantive entry speaks of a person
employed "in connection with" the speciﬁed operation', and
persons working in a clerical capacity are excluded. Secondly,
in some of the items, the formula employed in the_main entry
is "a person employed in" (or "on") certain premises, and a
geographical eontiguity is, therefore, requiredﬁ. Lastly, in some
of the items, no geographical contiguity is required", but, never-
theless persons working in a clerical capacity are excluded.

10.26. Items in the ﬁrst eategoryi, referred to abeves, exclude
persons acting in a clerical capacity, for the reason that other-
wise the wide wording "in connection with", would cover persons
not on the premises, and not directly involved in the hazardous
operation.

10.27. As regards items in the second category", which re-
quire a geographical contiguity, there is, in our view, a case for
removing the exception for persons" acting in a clerical capa-
city" in item 3, but not in item 18 where the area covered is very
large, being an "estate".

The position under item 2 is not identical with the ﬁrst cate-
gory, since the requirement of contiguity itself restricts the
entry.

H128. ,As rcgardsitems in_ the third_category,' the exclusion
of persons" working in a clerical capacity is, strictly speaking,
unnecessary, because it is difﬁcult to see how a clerk can be

1. Dukfu'.-ii' v. uC'0.V{Ji'Jh'I?.lO?! of Calcutta, A.I.R. 195i Cal. 653, 655. para 9.

". See PrriIi'v_a v._ Carparxman of Calcutta, (1951) 55 Cal. W. N. 496 (Case
of a building inspector, held to be excluded) (Decision on item page 10).

. Items 1, 2 5, 10, 14. 18, .19 and 30.
. Items l, 5 and 14.

. Items 2 and J8.

. Items 10, I9 and 30.

. Items 1, 5 and 14.

. Para 10.25, supra'.

9. Items 2 and 18.

10. To indicate precisely the aiiieiidment required, a re-draftis given at
the end of this Chapter.

11. See recommendation in para 10.34, infra.
1*. Para 10.25.

oo.,.a~Ln-ea:

Clerical
employment

various items
ll iscussed.

"em 2.

Aniiiiguili-'
in he m 2.

i'.?.0

employed. "in the coiistructiori" of an aerial rope-way1,----~as is
assumed in item 10, However, perhaps, for abundant cannon,
the e:iec_pti0n seems tohnve heeri inserted; and its rcn1ovaI_ at
this stage might be unwise, as it might be construed {is extending
the beneﬁt of the main provision to persons acting in a clerical
capacity, even though they are remote from the place where the
hazardous work is carried on.

10.2.9. We now come to item 2'-'. It has berm held in El
Bombay casct that it is not necessary 1l[1(lE.'£"1tCJ11 2 that the dc-
ccttscti should be working in the maniifncturing process itself. It
is enough if he is working in the premises where persons are cm-
ployctl in a mantifacturing process, and if the deceased is cin-
ployed in those premises otherwise than in a clerical capacity.
Thus. a night watchman employed to keep _Wa_tCh_ on the premises
of a pumping S'[.ElT.10Il'1,'\vVaS held to _'fall within iterti_2, since he
was employed in premises which satisﬁed the condifaoris of item
"3

10.30. It may be useful to codify the above inter-prctation.

10.31. There is also an ambiguity in this item. It is quoted
below :-
"(iii employed, otherwise than in a clerical t-iipacity, in
any premises wherein or within the prccircts ivherctif
21 nianul'acttii'ing process as deﬁned in clztusc (it) oi"
section 2 ot the Factories Act, 1943, is being carried
on, or in any kind of work whatsoever iiiciiicntal to
or connected with any such manufacturing process or
with the article made. whether or not empiojsment in
any such work is within such premises or precincts
and steam, water or other mechanical power or clcc--
trical power is used."

1.0.32. Do the words "and steam, water or other ineclisiiicnl
power or electrical power is used govern both the parts of the
item, (premises and work), or do they govern only the second 'J'
Apparently, both parts are intended to he covered, the hazard
being constituted by the use of power in either case. 'This could
he made clear.

10.33. It is also desirable to add nuclear or chemical energy,
in this item".

10.34. In the ﬁrst part of item 2, the exception regarding
clerical employment should he removed, as there is no reason
why clerks should be excluded" in this case, as the hazard cons-
tituted by the premises is shared by all persons. In the second

1. Item ID.

2. Item 2 is quoted in para 10.31, .-Infrcr.

3. Laxmibrii 'V. Bombay Port Trust. A.1.R. 1954 Born. 180, paragraph 3.
". Pumping is a manufacturing process.

5. Compare item 19 as proposed to be revised. Para 10.54, tvrﬂra.

. See discussion as to item 1. Para 10.2".' supra.

I21

half of the item also, it should be removed, since the require-
ment 15 that the work must mL_'0l_ve power. We propose accord-
ingly a re-draft in respect of this item.

10.35. Item 3 refers to persons employed for the purpose of
making, altering, etc. any article in any premises where 2Q or
more persons are so employed. I_'he Explanation to the article,
( which was added in 1962), explains that persons employed out-
side the premises but in work incidental to or connected with
the work relating to making, altering. etc. of the article, shall be
deemed to be employed within such premises. The emphasis in
this item is on the particular premises.'

To some extent. this item overlaps item 2, which applies to
premises where a manufacturing process is carried out and power
is used". Of course, the idea in the Explanation which governs
item 3 is to club together persons employed internally and per-
sons employed externally so as to make up the requisite number
of 20. This item need not be disturbed.

10.36. Item 4 relates to employment in the manufacture or
handling of explosives in connection with the employcr's trade
or business. Of course. the deﬁnition of 'trade or business' appli-
-cable to the Government and local authorities" makes this item
applicable, so far as the Government or local authorities are
concerned, to all their ac-rivitic-.s-.

There are, on the statute book, speciﬁc laws relating to explo-
sives and explosive substances, nevertheless, the Legislattlre has
not thought it necessary to refer to those laws for the purpose
of deﬁning the meaning of explosives, and the ordinary meaning
has been regarded as enough. in the circumstances. a change
in this regard is not suggested.

10.33'. But we are of the View that persons employed on pre-
mises where explosives are manufactured in connection with the
e:npioyer's trade or business should be covered, even if they are
not thernselves directly employed in such. We recommend a
redraft of item 4 accordingly.

10.38. Item 5 refers to persons employed in three kinds of
cmployments ---

(a) in any mine as deﬁned in the Mines Act, in any m.fm'ng
operation, or

1. Firm G. D. Gian Clumd v. Abdul Harnid, A.I.R. 1933 I_a]1o1-c s55_
5. Para 10.3. mprg.
'. Section 2(2).

Item 3.

Item 4.

Item 5.

Item 6.

Item 7.

122

(b) in any mine as so deﬁned, in any kind of work other
than clerical work, incidental to or connected with
any mining operation or (connected) with the mineral
obtained, or

soever below the ground.

10.39. That the employment under item 5 must be in a inure,"

is a requirement common to the three kinds of the work enu-
merated above,#though this aspect could have been_ brought out
more clearly. A suitable change is desirable to bring .it out.

10.39A. It is, in our view, also desirable to make it clear that
in item 5, the expression "mine" is intended to cover also mines
connected with minor minerals. item 5 applies to mines as de-
ﬁned in' the Mines Act, 1952. That Act deﬁnes a mine as mean-
ing "any excavation where any operation for the purpose of
searching for or obtaining minerals has been or is being carried
on," and as including certain other things not material for our
purpose. The deﬁriitiqn does not exclude minor minerals. The
expression "minor minerals" is deﬁned in a later Act as fol-
lows'-':--

(C) "minor minerals" means building stones, gravel, ordi-
nary clay, ordinary sand other than sand used for
prescribed purposes, and any other mineral which
the Central Government may, by notiﬁcation in the
Official Gazette, declare to he a minor mineral."

A clariﬁcation to the effect that item 5 covers minor mine-
rals would be useful.

10.40. item 6 relates to a person employed as the master
or as a sea-man of certain ships.
must be propelled by power or must have the speciﬁed tonnage
(minimum 25 tonnes net), or it must be a sezvgoing; ship pro-
vided with suyfﬁcfenr area for navigation under sails alone.' This
item does not appear to req_nirc any change.

'lO.4]. Item 7 relates to persons employed for the purpose of
speciﬁed operations connected with ships. In paragraph (a) the
reference to the Indian Ports Act, 1908, might require to be
added to, by mentioning the latest Central Act relating to certain
major ports. The enumeration of various types of work is

rather elaborate, but has the utility of precision and of avoiding -

doubts.

1. Section 3(1)U). Mines Act. 1952.

ﬁﬁgotipn 2(e), Mines and Minerals (Regulation and'De_veIopn1ent Act.
3 . . . .

Broadly speaking, the ship.

I23.

10.42. Item 8 refers to persons employed in the C-onstruction, Ill€m_§3-

maintenance, repair or demolition of speciﬁed buildings, speciﬁed
dams or embanktnents,_road_s, bridges, tunnels 'or_cana1s, wharfs,_
etc. Several points arise with reference to this item.

(i) Sometime ago, a question seems to have arisen whether
the word "repair" in this article includes painting, and the ques-
tion seems to have been answered in the afﬁ_rmative.1--2 It may
be desirable to mention painting in item 8. It is speciﬁcally men-'
tioned in item 7.

(ii) In this item, the reference to "twelve feet" in paragraphs
(a) and (b) should be replaced by a reference to_ the correspond-
ing meters.

(iii) Paragraph (3.) is conﬁned to speciﬁed buildings-
broadly speaking, multi--storeyed buildings or buildings with a
certain height. Apart from multi-storeyed buildings, the height
is the criterion. The two requirements are not cumulative; one
of them is enough3. The' above position may be brought- out
more clearly by splitting up.

As regards the words "employed in . . . . . .", a Calcuttat case
is of interest. The case was concerned with a person employed
under the Corporation of Calcutta as a Building Inspector who
had met his death at the hands of a riotous mob. It was con-
tended on his behalf that he was a workman, because he was
"eployed in the construction, repair or demolition of buildings
and other like constructions and, therefore, came under Cl. (VIII)
of Sch. II to the Act. Harries C.J., who delivered the judgment
of the Court, pointed out that a Building Inspector employed by
the Corporation had nothing to do with the construction of
buildings, and that, in any event, the work which the deceased
was employed to do was substantially work of a nature which
would not bring him within the category of persons employed
in the construction, repair or demolition of buildings. It was in
that context that the learned Chief Justice observed that in coming
to a conclusion as to whether a man was or was not a workman,
his ordinary work was to be regarded and that if the work in
which a person was sttbstantially employed was work which
would not bring him within the category of workmen, the fact
that on_ very rare occasions he might do something that would
bring him within that category would not suﬂice for the purposes
of the Act.

1. Nnr2'r'r.s'h V. Krishna Bat', A.I.R. 1936 Born. 199.

9. Brtchfa V. Shanta", A.l.R. 1946, All. 200, 473, 474, following .Bcrr.r'mr.m
v. L. & N. E. Rly. C0. (1945) I.K.B. 462.

3. Subhadrabai V. Alalwn, A.I.R. l96l Madhya Pradesh 349.

'. Prcm'ya_ V- Corporation of Calcutta, (195l) 55 Calcutta Weekly Notes
498, discussed in A.I.R. 1957, Cal. 653.

28 M of Law,' '74-9

ii.}I

Item 9."

Item 10.

Item 11.

Item 12.

Item 13.

124 '

10.43. Item 9 applies" to persons employed in setting up,
nitaintairiing,-repairing or taking down"'an'y telegraph or telephone
line or post or any overhead' electric line or cable or post or
standard or ﬁttings and ﬁxtures for the same." We do not re-
commend any changes in this item.

The word' --"tel_eg'taph-"- is deﬁned in the Telegraphs Act as
inclndiii-gF'a'wirelessitelegraphﬁ So We do not -think it necessary
to add a deﬁnition of "telegraph" in this item.

, 1__0"'.4'4'.' _Itern"10 coifers persons-employed, otherw..se than in a
clerida1"capaclty; in"the"construction-, working, repai" or demoli-
tion of any aerial ropeway, canal, pipeline, or sewer. The ex-
ceptitan for persons in clerical capacity has already been dis-
cusse .~

_ _1Q..45._ refers to (persons employed in the service of
any ﬁre brigade, and needs no change.

10.46. Item 12 applies to persons employed upon a railway
as-deﬁned,-in-clause (4) of section 3, and subsection (1) of
section I48, of; the I_ndian'Railwa'ys Act, 1890, either directly or
through:-_a _sub-contractor. by a person fulﬁlling a contract with
the railway adnfiinistration. The principal object seems to be
to cover persons [employed by (independent) contractors on
railwayworksf persons need not claim under the general
provision -as to 'si1b'icohtracto'rs.

No"cha1'rgE"-Ioffsubstancét-is required in this item. But the
worﬁs'-*'_-'by'-':a'pe_r'so'n fu-lt'r?ling?=a contract" etc. go with the word
"empteyedt-'. A gslight re'-casting is desirable to bring' this out.

-10.-'41 ='Item 13 refers--to persons "employed as Inspector,
znail"gua.rd, sort'er'o1"'van perm in the Railway Mail Service (or
as"a* telegrsphisLt'or-'as a-postal or railway signaller), or employed
in"aI1'y' occupatiomordinarily. involving outdoor work in the
Indian 'Posts and'Telcgraphs Department."

[Persons engaged onisimilar activities connected with Wire-
lesscomrnunications will be covered3, in View of the deﬁnition
of "telegra'ph" in the Telegraph:-1 Act.

10.48. In this item, we would recommend only a slight re-
casting so as to keep-railway signallers etc. separate.

1. See Indian Telegraph Act," deﬁnition of "te[egraph".
3. See discussion relating to item 1, para 10.28, supra.
3. Section 12.

'. Cf. Indian Telegraphs Act, deﬁnition of "telegr-aph".

.§@--

ls
l

I45

10.49. Item I4 refers to persons employed, otherwise than
in a clerical capacity. in connection with operations for winning
natural petroleum or natural gas. It needs no change.

l0.50. Item 15 reads :

"Employed in any occupation involving blasting opera-
tions."

It needs no change.
10.51. Item lo reads:

"Employed in the making of any excavation in which on
any one day of the preceding twelve months more
than twenty--ﬁve persons have been employed or
explosives have been used, or whose de_pth from izs
highest to its lowest point exceeds twelve feet."

The reference in item 16 to twelve feet could be replaced by
reference to corresponding metres. The item should cover
twenty ﬁve or more persons.

10.52. Item '17 refers to persons employed in operation of
any ferry bout capable of carrying more than ten persons.

it he-etis no change.

I053. Item 13 covers persons employed, otherwise than in
a clerical capacity, on any estate which is maintained for the
purpose of growing cardamom, cinchona, coffee. rubber or tea,
and on which on any one day in the preced1ng twelve months
twentyﬁx-"C or more persons have been so employed.

It needs no change.

10.54. Under Item I9. persons employed,-otherwise than in
a clerical capacity, in "the generating, transforming or supplying
of electrical energy or in the generating or supplying of gas" are
covered.

We recommend that Nuclear and Chemical energy should be
added in this item.'

10.55. Persons employed in a lighthouse as deﬁned in clause
(d) of section 2 of the Indian Lighthouse Act, 1927. fall within
item 20. which needs no change.

10.56. Item 21 relates to persons employed in producing
cinematograph pictures intended for public exhibition or in exhi-
bition or in exhibiting such pictures.

The words "public exhibition" would, presumably, cover
exhibition on the television nct--worl<.

The item needs nochange.

10.57 to 10.61. No substantial changes are required in items
22 to 25.

1. Compare item 2 as

proposedTo be Para supra.

Item 14,

Item 15.

Item 16.

[tcm I7.

Item 18.

Item I').

Item 10.

Item 21.

llclllb

22 to 25.

l26

1t<="11ﬁ- 10.62. Item 26 relates to persons employed in the handling
or transport of goods in, or within the precincts of --

(21) any warehouse or other place in which goods are
stored, and in which on any one day of the preced-
ing twelve months ten or more persons have been
so employed, or

(11) any market in which on any one day of the pre-
ceding twelve months ﬁfty or more persons have been
so employed.

It needs no change.

lten127. 10.63. Item 27 relates to persons employed in any occupa-
tion inv-.>lving the handling and manipulation of radium or X-rays
apparatus, or contact with radio«nctive substance .
it needs no change.

1tem23. l0.64. ltem 28 relates to persons employed in or in connec-
tion with the construction. errection, dismantling, operation or
maintenance of an aircraft as deﬁned in section 2 of the Indian
Aircraft Act, 1934-. If the scope of :1ir--borne vehicles itself
become widened, the necessary amendment, one can presume,
will be made in the Aircraft Act.

The item needs no change.

1l'3'" 39- 10.65. Persons employed in farming by tractors; or other
contrivances driven by steam or other mechanical power or by
electricity fall within item 29. We have separately dealt with
the question of widening this item.'

Item '-0- 10.66. ltern 30 reads : -

"Employed, otherwise than in a clerical capacjty, in the
construction, worldng, repair or maintenance of a
tubewell."

It needs no change.

Item 31- 10.67. Item 31 refers to persons employed in the main-
tenance, repair or renewal of electric ﬁttings in any building.

It needs no change.

Item 32. 10.6_8. Persons employed in a circus fall within item 32. No
change is suggested, in this item.

10.68A. We have ﬁnished the existing items. We shall new
deal with a few new items. We propose to add a new item to
employment . . .
requiring cover persons employed in any employment which requires them
them to to handle snakes" for the purpose of extraction of venom or for

glrﬂllziégi the purpose of looking after snakes. The need for it is obvious.
(New item

to be add-

ed-)

Persons_em-
ployed in

1. See discussion as to extension of the Act to agricultural employment;
para 10.21 to 10.23, supra.

rieulture, see para 10.21 to 10.23 supra.

l2?

10.69. We regard it as a serious drawback in the existing Person.-3 ax-
Act, that it fails to cover those employees who, though not posed to
directly employed in the speciﬁed hazardous employments, are. hﬂzaljdé
n€\'61'th6l€Sf+. exposed to those very hazards by reason of the fact (.ﬁl"1':1'l'[:°g';'1
that the duties of their employment require them, whether oeca- ;,,ci,,d._»d in
sionttlly or frequently, to face those hazards. For example, an the second
oilice worker who ocasionally has to visit: a thermal power house 'Schcdu'6)-
tor checking, say. stores, in order to verify the accounts of
certain purchases made for the power house, is exposed to the
same hazards as a Worker employed on the premises. But, as
the law stands now, if he is injured by an elecrical apparatus in
the power house, he is not covered by the Workmen's Compen-
sation Act. Similarly. a person performing administrative duties,
who has to go to a Govcrnmcnt--owned factory for some such
purpose as is mentioned above, is not covered by the Act. The
oztisting scheme is based on the distinction which exists between
the hazard constituted directly by one's usual employment, and

the hazard, occasionally arising from isolated contacts with the
ha7'.a1'doi1s object. '

I0.70. In our view, this distinction should, having regard to
the modern tendency to increase rather than decrease the right
to compensation, be removed. Where the accident is due to
the hazard constituted by a scheduled employment, compensation
should be admissible whether the workman is one employed in
the very employment (which is hazardous), or whether he comes
into contact with that hazard only at isolated times in the
course of his duties. We, therefore, recommend the insertion
of a general item at the end of the second Schedule, to cover
such a situation.

10.71. We now come to it question of arrangement. There Second
are 32 horns mentioned in the Second Schedule. Reading of 3,_-_1,,,,;,,i,~,__
this list is a laborious process, and whenever one wishes to regarding
find out whether a particular employment is or is not included warns
in the Schedule, one has to made through the entire Schedule 0 '
without the aid of any headings.

While it is not intended that the Schedule should be made
more genera1---«that would only be at the sacriﬁce of precision---
it is desirable that some device should be adopted to make rr:--
fcrence to the Schedule more convenient then it is at present. With
this end in view, we recommend that the items in the Schedule
should be grouped under a few broad groups. If necessary, the
group headings could be accompanied by a note to be inserted in
the Schedule itself', to the client that the headings are inserted
for the sake of convenience only.

10.72. There is scope for simpliﬁcation in this respect, be-
cause, at present, there is repetition of the same ﬁeld of employ
ment in several items. though with a diﬁerent requirement in

1. For consideration by the draftsman.

Basis of re-
grouping.

Re-draft oi'
Second
Schedule.

Recommen-

dation.

[Existing
item 1]

128

each case. For example, (artiﬁcial) power or energy in gene-
ral ﬁgures in item 1, and electrical energy in particular appears
in items 19, 20, 21 and 31. Explosives appear in item 4, but
also re--appear in items 15 and 16. Wild animals occur directly
in items 22 and 24, and indirectly in item 32, which relates to
employment in a circus.

10.73. This repetition of a common element affords one con-
venient basis for rc--grouping the existing items; this could be done
without necessarily disturbing the language of each item. Another
basis for rc--grou.ping of the items is furnished by the idea that
modes of transport, such as. ships (items 6 and 7), railways
(items 12 and 13), ferries (item 17) and aircraft (item 28).
could be grouped together. Petroleum. explosives and mines
(items 4 and 5. I4, 15 and lo) could be brought together.
Plantations and rnechanised operations in agriculture {items 13,
29, and 30) can constitute one group. Climbing trees (item
23) and diving (item 25) could be clubbed together. These
are personal hazards.

10.74. A re-draft oi' the Second Schedule, with the items
re-arranged and placed under groups, bearing in mind the possi-
ble basis for classiﬁcation indicated above, is given below.' It
also carries out the amendments which we have recornmended
in each item.

10.75. In the light of the above discussion. we rccommcncl
following rcdraft of the Second Schedule.

"SCHEDULE. [1
[See Section 2.(_ l ) (n) ]

I LIST OF PERSONS WHO, SUBJ'EC'I' TO 'THE PROVI:
SIONS OF SECTION 2l1)(n), ARE INCLUDED IN 'Tl-lit
DEFINITION OF WORKl'vl.F:N.

The following persons are workmen within the meaning of
section 2(1) (n) and subject to the provisions of that section, that
is to say, any person who is empioved as stated in any one of the
following items :--

Group A. Power and eiecrricityg

1. employed, otherwise than in a clerical capacity or on a
railway, in connection with the operation or maintenance of a
lift or a vehicle propelled by steam or other mechanical power
or by electricity or in connection with the loading or unloading
of any such vehicle ;

1. Para 10.75, i'nfm.
3. The group headings have been inserted for the sake of convenience only

l29

2. employed, otherwise than in a clerical capacity, in the
generating, transforming or supplying of electrical, nuclear or
chemical energy or in the generating or supply of gas ;

3. employed in a lighthouse as deﬁned in clause (d) of sec-
tion 2 of the Indian Lighthouses Act, 1927;

4. employed in

producing cinematograph pictures intended
for public exhibition

or in exhibiting such pictures;

5. employed in the maintenance. repair or renewal of elec-
tric ﬁttings in any building '

Group B ---- Mnnnfncmring
6. employed, . . . . . . . . .

(:1) in any premises wherein or within the precincts
whereof a manufacturing process as deﬁned in clause
(k) of section 2 of the Factories Act, 1943, is being
carried on. or

(in) in any kind of work whatsoever incidental to or con-

nected with any such manufacturing process or with

the article made. whether or not employment in any

such work is within such premises or precincts;

Provided steam, water or other mechanical power or electri-
cal. power or nuclear or chem.r'c-at energy is used in the manu-
faet:.m'ng process referred to in sub-clarrse (a) or in the work
referrerf to in sr.rb-clause (_'b).

Explanariorr : ----

It is immaterial for the purpose of sub--clause (a) that the

person employed in the premises is not himself employed in the
manufacturing process.

7. employed for the purpose of making altering, repair-
ing, ornamenting, ﬁnishing or otherwise adapting for use, trans-
port or sale any article or part of an article in any premises
where or within the precincts whereof twenty or more persons
are so employed; . . . . . . . . . .

Explan-arion.------For the purposes of this clause, persons em-
ployed outside such premises or precincts but in any work inci-
dental to, or connected with, the work relating to making, alter-
ing, repairing. ornamenting. ﬁnishing or otherwise adapting for
use, transport or sale any article or part of an article shall be
deemed to be employed within such premises or precincts :

[Existing
item [9]

[Existing
itcnl 20]

[Existing
item 21]
[Existing
item 3 I]

[Existing
item 2}

{Existing
item 3]

[Existing
item 4]

[Existing
item 5]

[Exist ing
item 14]

[Existing
iicm 15]

[Existing
item 6]

[Existing
item 7]

130
Group C--Mining, Petrol etc. and explosives

8. employed in the manufacture or handling of explosives in
connection with the employer's trade or business; or on premises
where such manufacture of explosives is carried on or

9. employed. in any mine, as defined in clause Ci) of section
2 of the Mines Act, l952,--

(a) in any mining UpC!'£tili?!'l; or

(b) in any kind of work, other than clerical work. inci-
dental to or connected with any mining operation or
connected with the mineral obtained, or

(c) in any kind of work whatsoever below ground; or
Explanation.--For the avoidance of doubts, it is hereby de-
clared that for the purposes of this clause, and for the purpose of
the deﬁnition of "mine" in the Mines Act, 1952 as adopted by

this clause, the expression "minerals" includes minor minerals.

10. employed, otherwise than in a clerical capacity, in con-
nection with operations for winning natural petroleum or natural
gas;

11. employed in any occupation involving blasting operations:

Group D------Transporr and Conmmnican'ons

12. employed as the master or as a scunian of--

(a) any ship which is propelled wholly or in part by
steam or other mechanical power or by electricity or
which is towed or intended to be towed by a ship
so propelled; or

(b) any ship not included in tub-clause (a), of twcn=:y~
ﬁve net tonnage or over: or

(c) any sea--going ship not iI'!{:i1i'LiL'<.i in sub--c|zit1sc (:1)
or sub-clause (b_) provided with suﬂicient :1:-;:-3 for
nzlvigation under sails alone;

13. employed for the purpose ofwn

(a) loading, unloziding, fuelling, c(:::sLi'ut:ting, demolishing,
cleaning or painting any ship of which he is not
the master or a member of the crew, or handling or
transport within the limits of any port subject £01 the
Indian Ports Act, 1908, of goods which have been
discliarged from or are to be iOD.LiL'{i into any vessel;
or

(b) warping a ship through the lock; or

1. If necessary reference to other laws relating to ports slmuhl tic added

13!

(d) removing on replacing dry dock caisoons when vessels
are entering or leaving dry docks; or

(f) preparing splicing coir springs and check wires, paint-
ing depth marks on locksides, removing or replacing
fenders whenever necessary, landing of gangways,
maintaining Iife--buoys up to standard or any other
maintenance work of a like nature; or

(g) any work on jolly~boats for brining :1 sl3ip's line to
the wharf; '

14. employed upon a railway as defined in clause (4) of
section. 3, and sub--seetion (1) of section 148. of the indian Rail-
ways, Act, 1890, by it person fulﬁling a contract with the railway
administration; whether such employment is directly or through
a sub-contractor.

14A. employed as a railway servant as deﬁned in section 3
of the Indian Railways Act, 1890 :

_ Provided that a railway servant ordinarily discharging duties
in any administrative, district or sub--divisional oiiitre of a railway
.............. shalt' not be a workman by virtue of this item."

l5 . employed,---

(a) as a tclegraphist or as a postal or railway signallcr;
or

!_b) as an inspector, mail guard, sorter or van peon in
the Railway Mail Service, or

16. employed in the operation of any ferry boat capable cf
carrying more than ten person;

17. employed in the handling or transport of goods in. or
within the precincts of;---

(a) any Warehouse or other place in which goods area
stored, and in which on any one day of the preceding twelve
months ten or more persons have been so employed, or

(b) any market in which on any one day of the proceed-

ing twelve months ﬁfty or more persons have been
so employed;

[Existing
item 12]

[Ti'ansfcrt'etI
from the
deﬁnition

of
workman]

[iixisting
item 13]

[Existing
item I7]

[Exis I 1' ng
item Ed}

[Existing
item 28]

[Existing
item 3]

[Existing
item 9]

[Existing
item 10}

[Existing
item I 6]

[NW]

Existing]
item 29

132

18. employed in or in connection with the construction, erec-
tion, dismantling, operation or maintenance of an aircraft as de-
ﬁned in section 2 of the Indian Aircraft Act, 1934;

Group Ew-Cormructiori

19. employed in the construction, maintenance,
demolition of--

(a) any building which is designed to be or in or has
been--
(i) more than one storey in height above the ground:
or
(ii) three and a half metres or more from the ground
level to the apex of the roof; or
(b) any dam or embankment which is three -:.-mi half
metres or more in height from its lowest to its higltcst
point; or
(C) any road, bridge, tunnel or canal; or
(d) any wharf, quay, sca--wall or other marine work
including any moorings of ships;

20. employed in setting up, maintaining, reparing or taking
down any telegraph or telephone line or post or any overhead
electric line or cable or post or standard or ﬁttings and ﬁxtures
for the same:

21. employed, otherwise than in a clerical capacity, in the
construction, working, repair or demolition of city aerial mpcwaxu
canal, pipeline, or sewer;

22. employed in the making of any excavation in wi*'_ch on
any one day of the preceding twelve months twenty-ﬁve or more
persons have been employed or explosives have been used. or
in the making of any excavation whose depth from its. highest
to its lowest point exceeds three and half n1etr'es.

Group F----Agn'culture

23. employcd--

(a) in any agricultural EHl[)i0__W?iE?f1i which S(1fi3'ﬁe.i the
following coridiiirms, naniel)' . . . . . . . ..Or1

(13) in any agricultural operation involving the use or
handling of any contrivance driven by steam or other
mechanical power or by electricity .

Explanati0rz----In this item, "agriculture" includes horticul-
ture, forestry or bee keeping and "agricultural" shall
be construed accordingly.

Theifconditions are left to up after the criterion to h---.-KaJ,ntei-ll in'
thishbchalf is decided. See discussion in para 10.7.

repair or

133

24. employed, otherwise than in a clerical can '

. . , _ . pacity on any
estate which is maintained for the purpose of growing cai-damorn,
Clﬂchﬂlla, Coffee, rubber or tea, and on which on anv one day in
tube preceding twelve months twenty-ﬁve or more persons have

een so employed;

Q 25. e_mpIoyed,_otherwise than in a clerical capacity, in the
construction, working, repair or maintenance of a tube-well;

Group G~--Wild Animals and Snakes

26. employed in the training, keeping or working of elephants
or wild animals

27. employed in operation for the catching or hunting of
elephants or other wild animals;

28. employed in a circus;

29. employed in any employment which requires the person
employed to handle snakes for the purpose of extraction of venom
or for the purpose of looking after snakes;

Group H--~Climbing and diving

30. employed in the tapping of pa1m--trecs or the felling or
logging of trees, or the transport of timber by inland waters, or
the control or extinguishing of forest tires;

31. employed as a diver;
Group I--~F ire

32. employed in the service of any ﬁre brigade.
Group 1---X Ray and radio--active substances

33. employed in any occupation involving the handling and
manipulation of radium or X--rays apparatus, or contact with radio«
active substances.

Group K----Supplementary

34. employed in any ernploymein which is (If siich __a nature
that in the course of his duties, the person employed has to sub-
ject himself to a hazard arising from any employment mentioned
in any other item in this Schedule. If his employment is inci-
dential to or connected with any eniploymeni so mentioned, and
if the personal injury is caused b_v an accident which occurs on
the premises where the ernpioyment so mentioned is carried on."

Expianation.~--In this Schedule "the preceding twelve. months"
relates in any particular case to the twelve months ending with
the day on which the aeclodent in such case occurred.

[Existing
item is]

[Existing
item 30}

[Existing
item 22]

[Existing
item 24}

[Existing
item 32]
{New}

[Existing
item 23}

[Existing
item 25]

[Existing
item 1 1]

[Existing
item 7]

[New]

ﬂit!

:13.

Mi'
.

3rd Schedule Third Scheduie The word "seque]ae"' l34 1036. Having ﬁnished consideration of the Second Schedule, we now take up the Third Schedule. The Third Schedule eon- tajns the list of occupational diseases, and has to he read with sections 3(2), 3{2A) and 3(3). The subject is of a technical character, and since we have not received any concrete sugges~ tions in respect of them, we are not recommending any changes of substance in the Schedule. A few minor points concerning the Schedule are discussed below.

10.77'. There are several items in the Third Schedule (list at occupational diseases}, which use the word "soquelae", while describing certain diseases. For example, in Part A of the Third Schedule, one of the diseases listed is "compressed air ill» ness or its scquclae". This word, which is peculiar to the langu- age used by Pathologists, is derived from the Latin word "sequel", which means "follow"'. The word connotes a morbid condition or symptom following upon some disease.

it would appear that this word caused some controversy in England'. One of the scheduled diseases in Englan-:1 (in the W-otl;rnen's Compensation Act of 1906) was "lead poisoning and its scquelae". The County Court Judge had found that the granular kidcny (from which the diseased workman died) was one of the Consequcrtces of lead poisoning (a scheduled discasel. but there was no ﬁnding that in this pctrticrtfar case if was con- sequcnt upon lead poisoning. An appeal was preferred and allowed. The Court of Appeal pointed out that these words had no operation unless it was ﬁrst established to the satisfaction of the County Court Judge that lead poisoning was either the proximate or the ultimate cause of death, in the particular case. Co2ens~---Hardy M. R. observed as foliow.s:--«»--

"lt is not suiﬁeicnt that death was caused by something which may in some c:a.s'es*" be a scquela of lead poison- ing but may also be a sequela of gout or alcnholisinh. In short, it must be proved that death was a conse- quence of lead poisoning in the case of .',ltt'3 porti- cidar individztal, not necessarily a direct or imme- diate consequenccs but at least a remote cons«,:-

quence."

Farewell L. I. explained the meaning of the expression "seque- lae", in the following terms:--

"It is clear, if scquelae be translated into plain English and called 'or its consequences"--~--i.e., the conse- quences. not a possible consequence", the allegation then is that the man died not from lead poision--

'1, H,,_,,,:,,.;; ti, ﬁsh} at 10'}; (-I908} 2 Kings Bench 3137 (Court of---A51;-teal}. =_ Emphasissupplied.

5_ Emphasis sL1p_o1icd.

L» 135 ing, but from a consequence of lead poisoning and it is as necessary for him to prove this case as it would be for him to prove that he had died from lead poisoning if that had been the case. The schedule cannot be read as if the words were "lead poisoning or granular kideny"; it can only be "lead poisoning". It is impossible to have the con- sequence without the cause, which is the gist of the liability."

10.78. It would, therefore, appear that the object of insert- ing the words "or its sequelae" in the Schedule to the Act this to preven: an employer from evading his liability to pay compen- sation on the ground that his employee had died, not actually from the scheduled disease, but from a complaint which. super- vened or was consequent upon it. At the same time. the death or injury must be traceable to CI crmsequance of the scheduled disease.

10.79. In view of What is stated above, it would be advis- able to substitute, in the Third Schedule, for the words "its se- quelae", (wherever they occur), the words "any diieuse caused thereby in the particular case", and we recomrnend ttccordingly.

10.80. The Third Schedule also leaves scope !'or improve- ment in respect of arrangement of the items. At present, the items in the Schedule bear no number, and are airaugcd in a haphazard fashion. The following changes are proposed 1-3 facilitate reference:

(I) Division of the Schedule into Parts.

('2) Hazards otherwise than by poisoning will be placed ﬁrst in each Part. Hazards by poisoning will be placed next.

(3) Numbering of the items (with separate numbering within each part).

(4) In ennrnerating hazards by poisoning, alphabetical order is to be followed, as far as possible.

The revised arrangement will be as folloxvszm Third Schedule (see section 3) List of Occupational Di.raase.s Oocupatioiial disease Employnlent PART A Any employment H-

fa) involving the handing of wool, hair, bristles or animal carcases, or parts of such carcasses, including hides, hoofs and horns; or

1. Anthrax; .

Recomn1en-

tlatirm re-

siarding the E'_1{r3!'G5SiUl1 ' Ee<| ue!:1C°.

_.-§_r.'n,ngeri1cnl of items in the Tiiird 1-.t:hedL1lI:.

136

Oocupatiuua] disease

2. C01'npn:ssed air illness or my diveasc cczuxeci thereby in the particular Care

3. Poisoning by lead 1etra- ethyl.

4. Poisoning by nitrous fumes

5. Poisoning by organic phos- phorus, insecticides.

I. (lccupatiouai C23.ta_r'r1cI: due 10 infra-red radiations.

2. Chrome ulceration or any gliseasg mu.-red thereby the particular case,

3. Pathological ina.:1ifL-stations due to :--

(3) radium and other radio-

acﬁve: substances;

(b) '>(--r'a.\_.'&?~.

. Primary cpilh£]io:ne1lou.~a cancer of the skin.

an . Tclegraphisﬁ Cramp Poisoniiig by ariscnic or 115 E.'OI'L'Ip()Ul1dS, or cmy disease mused 1.fm'e!)y in the pum- L-.m'ar UJSC'.

. Poisoning by benzene, or

115. hon-mlogu-es, their amiclo Lmd rﬁtrodcrixvalixrcs of any riﬁiease <'r1m'e:i' :?IeI'ehy in the pariirular case.

in place of 'seqtlelavf.

in limploy ment (bi in connection with aniineilﬁ infected with antl1rax;or (C) involving the loading, u:l«.'u-.li:Lg or transport of any merchandise.

Any §1l'0CESS carried on in cc'-mpr;:.w:d air.

Any process involving the UN of lead Eetraclhyl.

Any process involving exposur: to nitrous fumes.

Any pruc.es;.~; iiwolving the use or hzmdling or exposure to the fumes, Clusi or vapour containing any of the org.mi.; [)llOS- phorus iI'lS\?cLici<.Ec5.

PART I! Any mariufacmring process jnvulvizxg ex- posure to glare: from moiten ii=._1ta:rial or In a.nj.= other soilrces of infra-mi radia- lions.

Any process involving the Lisa 0? chi'-orni-:

acid nr oichroriiate of :."ll.lTl0I'll.LIil1 potassium or S0dlLl.ll'J, or th::i"pr<:p':1t'a-.

tions or Eh: n1anu?'autlire oi' biochro- male.

Any process invnlvia cxpzisurc t3 the action of radium mclioacti'-xx: :;¢'3%t.1ru:<.'-s' or X--r.ajvs.

Amy proczss ill'-J'C3lVli'L'I r.i1: hamlliag or use of tar. }1lLClL. bituinan, n'int:ral oij garaﬂin, or the :o.npound~:. p-';J(fui;l.~a 01' residues of lhcsn: 5ubstan<;m';.

Any employincm involving the list'. oi' telegraphic in~;mimcms.

/3tl'l_}' process 'H1\-'u1vin'a the pl'-':».;u-:}!i(I:';. liberation or utilisation of eimziiis; or iLt-; compo un-'.l3.

An;-' process involving the malluﬁwlui-c_ liberation, or use of benzene, I1n-n1o|o- guts and their amido and ni1:roderiva- ﬁves.

1. We have sepamtely recommended substitution of a dilTe-rem wording Para lD.':'3, supra.

_ nu... ,~.,_.----

Occupational Disease

8. Po_isoni11g by carbon disul- phide, or any dwecwe mused Iflerdzy in the purffcrrfcrr erase.

9. Poisoning by halogenated hydrocarbons of the aIipht-'- tic series and their halogen derivatives. '

10. Poisoning by leml. its alloys or t2OTn1'|(Mm(lS or any dis- ease caused thereby in the particular case excluding poisoning by least tetra-ethyl.

1|. l'0i.':0t'1ii1g by mangatnese or a compound of manganese. or wry d.I'.wrr.w uausmd 1ha'r('- by in rim prirtirwirrr case.

12. l'oi<nni1't;,' by :11erL'ur'_\*. its amaigams and compounds, or any rlriwrase cwmeci there- by in the parr.ir'm'ar ('a.\'e.

13. _Pnisoning by phosphorus or its compounds, 01' (my dir-

eme ('ur:.\'+'rI rF1ereI:_v in r/1:' _,De'1J'.-'I in far ('as e .

1. Asbestosis . , ,

2. Bagussosis

3. C_oa] Mii1r:r's Pneumoeonio- SIS. -

4. Silicosis . . . _ 137 Employment Any employment in :-- _ _

(a) the manufacture of carbon dlSLllpl'llClC; O!'

(b) Ll'tE manufacture of zirtiticial Silk U)' viscose process; or

(c) rubber ir1du;~;try; or (cl) any other industry involving the prOdLIL'.l.'l0n or use of products con- taining carbon disulphide or exp0_sL1r«= to emanations from carbondisulplnde.

Any process involving the manufactllrc liberation and use of hydrocarbons of the aliphatic series and their halogen derivatives.

Any rwuecss involving the handling or use of lead ore of lead or 311)' of "5 prtzpamtions or co1Ttp0und< <5-'(Wt-'T [Cad tctra~et|1yl .

Any process involving the use of, or exposure to the fumes. dust or vapour of. manganese or a C-ompoimd of manga- ne-;c_, or a substance containing m3.T1g'r1- nese.

Arty process involving the use of Inerctlry or its prcparattom or colttpmlntiﬁ.

Any process involving the liberation of Dl10'§ph(JI'1lS or use or handling of phosphorus or its preparation5 Of compounds.

PART C Any employment in :-

(1) the production of :

ti) ﬁbre t.-cment materials; or

(ii) asbestos mill board; or (2) the processing of ores containing asbestos.

Any ct11plCI_v:11ent in the production of bagasse mill board or other articles from bagasse.

Any employntcnt in coal mining.

Any employinant involving exposure to the inhalation of dust coma mi 11:; c:_ Amendment Recommen-

ded.

HS 10.81. In the Fourth Schedule, for cases where the monthlgr wages exceed Rs. 400, the present ﬁgures are Rs. 10,000, 14.000 and Rs. 87.50 respectively, in the 2nd, 3rd and 4th columns of the Schedule. We think that a speciﬁc item for the Rs. 400-500 group is required.

We therefore recommend that in the Fourth Schedule, for cases where the monthly wages are from Rs. 400 to 500, the present ﬁgure';1,~»--Rs. 10,000, 14,000 and Rs. 87.50--should be retained, and, as regards cases where the monthly wages exceed Rs. 500, the figures in the 2nd, 3rd and 4th columns of the Fourth Schedule should be Rs. 11,000, 15,000 and Rs. 100 respectively.

Carnpararivr: Thble with reference to Second Schedule Existing item Proposed item I 1 2 6 1 7 a_' --.

4 " '§"'""""

5 9 H'.-

6 1; ---i 7' __. l3 _'A-'__-_--_ 8 19 -H---

9 _£o_"' "M! 10 21 _ 11 32 -

12 14 _d--. --0 13 I5 14- 10 I5 0--- 11 Existing item Proposed i tam ¥ 16 22 17 15 18 :24 _. 19 2 ' 20 3 _.x_ \-~- _ _.

,' _ 21 '-1- 2.2 26 g! 23 30 Q 24 27 '.

6 25 31 26 17 27 33 28 18 29 23w:

I 30 25

-- I ,.~ 31 5 L . . _-

5 32 23 We would like to place on record our warm appreciation of the valuable assistance We have received from Shri Bakshi, Mem-

ber--Secretary of the Commission in the preparation of this Re port.

£40 P. B Jajcndragadknr . Chairman.

P. K. Ttipalhi . Memhcr S. S. Dhavan . Member S. P. Sen-Varma . . . Member I'. M. Bakshi . . . . . . Member-Secretary Dated: New Delhi.

the 15th October, 1974.

' t.

Fa; ' *-

I ""'\

1. Member Shri B. C'. Mitra has the Report. Please s:-:ek(tri(1re:1r-

warding letter.

MGIPRRND--2§ M of Law/74---Sec. IV (N.S-}--l0~3--75--'.1000 /"

'_;\' '-"

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