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The Municipal Corporation Vs. P. Ganapathy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 472 of 1971
Judge
Reported in(1977)79BOMLR14
AppellantThe Municipal Corporation
RespondentP. Ganapathy
DispositionAppeal allowed
Excerpt:
.....of documents - 'arising out of employment'--workmen's compensation act viii of 1923, section 3--words 'arising out of employment' more restrictive than words 'in the course of employment'.;by an agreement made in may 1965 between the b.e.s.t. undertaking of the bombay municipal corporation and the union of its employees, it was inter alia agreed that employees injured in accidents arising out of employment shall be paid full wages during the period of incapacity except in certain cases.;g, a bus-hunter in the b.e.s.t. undertaking sustained injury to hia back while travelling in a b.e.s.t. bus from his residence at kurla to dadar where he was to report for duty, and the back was in plaster for over two and a half months. he received a sum of rs. 316 being the payment to which he was..........the only point that arises before us for determination pertains to the construction of the words 'arising out of employment' in clause 2 of the agreement dated may 21, 1965. that clause reads as under:it is agreed that employees injured in accidents arising out of employment shall be paid full wages during the period of incapacity except in cases....it is not in dispute that we are not concerned with the exception provided in this clause.4. mr. singhvi, the learned counsel appearing on behalf of the petitioner-corporation, contended that the words 'arising out of employment', must not be given the same connotation or meaning as the words, 'in the course of employment', and that the legal fiction of notional extension of time and place attributed to the words, 'in the course of.....
Judgment:

Lentin, J.

1. By this Special Civil Application, the Municipal Corporation of Greater Bombay seeks to set aside the order dated November 25, 1970 passed by respondent No. 2 who is the presiding officer, 1st Labour Court, Bombay.

2. The undisputed facts which have led to the matter before us are that, at all material times, respondent No. 1 was employed by the petitioner-Corporation as a bus-hunter in. its Bombay Electric Supply and Transport Undertaking (referred to hereafter ass 'the B.E.S.T.') On April 19, 1967, respondent No. 1 left his residence at Kurla at about 6.30 a.m. and boarded a B.E.S.T. bus in order to proceed to Sion from where he had to take another B.E.S.T. bus in order to report for duty at Dadar. Between Kurla and Sion, the driver of the B.E.S.T. bus in which respondent No. 1 was travelling, applied the emergency brake, which caused a jerk. As a result, respondent No. 1 sustained an injury to his back and was in plaster from April 23, 1967 till July 10, 1967. He received a sum of Rs. 316, being the payment to which he was entitled under Section 4(1)(d) of the Workmen's Compensation Act, 1923. He, thereafter made a demand to the B.E.S.T. Undertaking of the petitioner-Corporation for a further sum of Rs. 435.28, being the difference in his full wages and the amount received by him under Section 4(1)(d). This demand was made by respondent No. 1 under an agreement dated May 21, 1965 between the B.E.S.T. Undertaking of the petitioner-Corporation and the union of its employees. As this demand of Rs. 435.28 was repulsed, respondent No. 1 made his claim before the Labour Court, which, by its judgment and order dated November 25, 1970, upheld the same, and ordered the payment thereof to respondent No. 1. Hence the present Special Civil Application.

3. The only point that arises before us for determination pertains to the construction of the words 'arising out of employment' in Clause 2 of the agreement dated May 21, 1965. That clause reads as under:

It is agreed that employees injured in accidents arising out of employment shall be paid full wages during the period of incapacity except in cases....

It is not in dispute that we are not concerned with the exception provided in this clause.

4. Mr. Singhvi, the learned Counsel appearing on behalf of the petitioner-Corporation, contended that the words 'arising out of employment', must not be given the same connotation or meaning as the words, 'in the course of employment', and that the legal fiction of notional extension of time and place attributed to the words, 'in the course of employment', would have no application to the words in the agreement, viz. 'arising out of employment'. Mr. Singhvi urged that the meaning of the words '' arising out of'', is more restrictive than the words 'in the course of'. Thus, according to Mr. Singhvi, the accident not having arisen out of respondent No. 1's employment, or in the course of his duties as a bus-hunter, he was not entitled to the additional amount of Rs. 435.28, and hence respondent No. 2 was in error in awarding the same.

5. We are in agreement with these contentions of Ms. Singhvi. Random House Dictionary defines 'arise' as:

to come into being,...; originate; appear; spring up..

'Course' is defined as:.the continuous passage or progress through time or a succession of stages:.

Thus, the continuous passage or progress through time ora succession of stages as envisaged by the definition of 'course', is conspicuous by its absence in the definition of 'arise'. These two pharaseologies, viz. 'arising out of' and 'in the course of', are distinct, separate and independent of each other, without the one having any nexus or connection with the other. The one cannot be read for, confused with, or substituted for, the other. The words in the agreement, 'arising out of employment', are necessarily less wide than the words, 'in the course of employment'. The words 'arising out of employment,' unlike the words 'in the course of employment', must necessarily mean that the incident must be the direct result of, and must be immediately connected with, the employment and the performance of the duty of the worker concerned. Mr. Singhvi is correct that the legal fiction of notional extention of time and place given to the words, 'in the course of employment', cannot be given to the words 'arising out of employment'. Hence it cannot be said that the accident had any nexus with respondent No. l's employment, which would entitle him to the additional amount claimed by him.

6. As an aid to the construction placed by us on the words 'arising out of employment', we may say that in Section 3 of the Workmen's Compensation Act, which provides for the employer's liability for compensation for personal injury caused to a workman by accident, both the phraseologies, viz. 'arising out of and in the course of his employment', are used. The Legislature in its wisdom would not have done so had the meaning of both these phraseologies been the same. It is presumed, that the Legislature does not use words which are superfluous and the very fact that both these phraseologies have been used in that section, would be an unmistakable indication that the same meaning cannot be attributed to them. We make it clear that we are not construing this section of the Workmen's Compensation Act but have only alluded to it as an aid in arriving at the construction placed by us on the words, 'arising out of employment', in the agreement before us.

7. However, Mr. Naik, the learned Counsel appearing on behalf of respondent No. 1, invited us to come to a contrary finding on the ground that, according to Mr. Naik, when the agreement dated May 21, 1965 was arrived at, the intention of the parties was that the worker should receive a larger amount than what he would have been entitled to under the 'Workmen's Compensation Act. Mr. Naik invited our attention to Service Regulation No. 27/14 which was as under:

Accident Leave, Whole Staff: In cases in which any one of the Undertaking's staff is absent from duty as a result of an accident incurred in the direct performance of his duties in the Undertaking's service, Heads of Branches are authorised to sanction at their discretion full (or less) pay for a period not exceeding 3 months..

Mr. Naik emphasised that the word 'direct' in this Service Regulation had been given a go-by in Clause 2 of the agreement where that word does not find a place, because it was intended under Clause 2 of the agreement, that the injured worker would be entitled to full wages even if the injury did not arise directly in the performance of his duties.

8. We are not much impressed by this contention of Mr. Naik. The words 'arising out of employment', in Clause 2 of the agreement must be given their natural meaning. If the intention had been as suggested by Mr. Naik, there was nothing to prevent the parties from using the words 'in the course of employment', instead of the restrictive words 'arising out of employment', in Clause 2 of that agreement. This was the only contention urged by Mr, Naik, which must fail.

9. In the result, the judgment and order of the learned presiding officer is set aside and this Special Civil Application is allowed. Rule absolute. Mr. Singhvi fairly does not press for costs. There will be no order as to costs.


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