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Patel Engineering Co. Ltd. Vs. Commissioner for Workmen's Compensation and Ors. (17.02.1977 - APHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1978)ILLJ147AP
AppellantPatel Engineering Co. Ltd.
RespondentCommissioner for Workmen's Compensation and Ors.
Excerpt:
.....as to include an area which the workmen passes and repasses in going to and in leaving the actual place of work. the workman while crossing the creek in a public ferry boat which capsized due to bad weather, was drowned; it is especially so if he proceeds by a public transport which is available for every citizen as, in that case he must -be deemed to be using the public transport like any other ordinary citizen. without the said right, it would be very, difficult for a driver to sign on and sign off at the depots at the schedule timings, for he had to traverse a long distance, but for that facility, not only punctuality and timings cannot be maintained but his efficiency will also suffer it was sought to be argued that such class of employees could as well go by local suburban trains..........an accident in which 21 persons travelling in the lorry were fatally injured. 17 of them, who were workmen working directly under the government, applied for compensation under the workmen's compensation act and were paid the compensation due to them. the other four were employed by the appellant-contractor and they were, therefore, directed to approach the contractor for payment of compensation. but as no compensation was paid, they initiated proceedings under the workmen's compensation act. the commissioner for workmen's compensation, by his order dated 21st october, 1975, awarded compensation of rs. 7,000 each for the applicants in w.c. nos. 109 of 1974, 153 of 1974 and 156 of 1974 deducting a sum of rs. 150 under section 8(4) of the workmen's compensation act, which was paid as.....
Judgment:

Alladi Koppuswami, J.

1. The appellant is a contractor who was entrusted with Power Tunnel Work in Srisailam Project. On 25th July, 1973 a number of labourers were proceeding in a lorry belonging to the Government. There was an accident in which 21 persons travelling in the lorry were fatally injured. 17 of them, who were workmen working directly under the Government, applied for compensation under the Workmen's Compensation Act and were paid the compensation due to them. The other four were employed by the appellant-contractor and they were, therefore, directed to approach the contractor for payment of compensation. But as no compensation was paid, they initiated proceedings under the Workmen's Compensation Act. The Commissioner for Workmen's Compensation, by his order dated 21st October, 1975, awarded compensation of Rs. 7,000 each for the applicants in W.C. Nos. 109 of 1974, 153 of 1974 and 156 of 1974 deducting a sum of Rs. 150 under Section 8(4) of the Workmen's Compensation Act, which was paid as advance for funeral expenses, etc., and awarded Rs. 6,500 in W.C. No. 24 of 1975. The appellant has preferred these appeals against the common order in the four applications under Section 30 of the Workmen's Compensation Act.

2. Two main contentions were raised before the Commissioner by the appellant. Firstly, it was contended that the applicants were not regular employees but casual labourers. Secondly, it was contended that the accident did not take place in the course of the employment of the applicants The Commissioner held against the appellant on both these points. The same contentions are urged before us.

3. In order to appreciate the contentions of the appellant, it is necessary to set out the relevant provisions of the Workmen's Compensation Act. Section 2(n) defines 'workman'. The definition omitting the irrelevant portions is as follows:

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

Section 3 deals with the employer's liability for compensation and is in the following terms:

If personal injury is caused to a work-man by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter:

Provided that the employer shall not be so liable.(a)* * * *(b)* * * *

4. The first contention of the appellant is that the employment of the applicants was of a casual nature and, therefore, they were not workmen within the meaning of Section 2(n) of the Act and there was no liability on the part of the employer for payment of compensation for any injury caused to such persons. The evidence discloses that, as far as three of the applicants are concerned, they were working for more than six months under the appellant-contractor. The contractor employed a set of workmen who were paid monthly wages and another set of workmen who were paid daily wages. These daily wages were paid once a week with the result that these persons, whose wages were reckoned as daily wages had to wait until the end of the week for their wages. All the applicants belong to the category of persons whose wages were reckoned as daily wages, but were paid once a week, P.W 2, a departmental employee, who was working as a Compressor Operator in the Compressor Sub-Division of M. & W. Department and who, travelled in the lorry on the relevant date, deposed that three of the deceased workmen were being carried to the workspot for six months prior to the date of the accident. R W. 3, a fitter employed in the Dam Division III of the project, also deposed to the same effect. R.W. 4, an Executive Engineer in charge of Dam Division II, admitted that all the four deceased workmen were working under the appellant. The appellant sought to rely upon certain registers for the purpose of showing that the three workmen were not working regularly for six months but were working of and on. But the Commissioner refused to rely upon the register, Ext. R. 4 on the ground that it was produced at the fag-end of the proceedings. R.W. 3, who is the sub-contractor of the appellant, admitted in cross-examination that he could not say whether each of the four deceased workers had worked even by looking into the register. The Commissioner went to the extent of holding that the register is a fabrication. Even if we are not prepared to agree with the Commissioner that it was a fabrication, still it follows from what has been stated above that the register is not of any assistance to show whether the applicants were only casual workers. We have, therefore, no hesitation in agreeing with the Commissioner that, as far as the three applicants who had worked for more than six months are concerned, they cannot in any event be regarded as being in employment of a casual nature. The learned Counsel for the appellant, however, submitted that, as far as one of them, Shankaraiah was concerned, he was proved to have worked only for two days and, therefore, his employment must be regarded as one of a casual nature. From the mere fact that the person worked for two days before he died in an accident, it would not automatically follow that his employment was of a casual nature, for it is possible that even a regular employee may meet with an injury either ordinary or fatal immediately after he joined duty. In this case, P.W. 1, the wife of the deceased Shankaraiah, deposed that her husband worked for two days and on the third day, he was involved in the accident. Though he was a daily-rated wage employee, the payment used to be made once a week. His employment does not stand on any different footing from the employment of the other three applicants. The finding of the Commissioner that all the four applicants were not employees of a casual nature is one of fact and no sufficient grounds have been made out for interference in appeal.

5. The next contention is that the injury was not caused to the deceased workmen by an accident arriving out of and in the course of their employment. The case of the appellant is that the evidence does not disclose that the lorry was proceeding to the work-spot where the deceased workmen were engaged. The lorry did not belong to the appellant and it was not expected to carry the deceased workmen to their workspot. It is not even proved by sufficient evidence that the workmen were proceeding in the lorry for the purpose of their work. Even if they were proceeding in the lorry for that purpose, it cannot be said that the accident arose out of and was in the course of the employment of the workmen.

6. The expression 'arising out of and in the course of employment' occurring in Section 3 of the Act has been the subject, of a number of decisions including those of the Supreme Court. In the decision of the Supreme Court in Saurashtra Salt Manufacturing Go. v. Bai Valu Raja : (1958)IILLJ249SC , it was pointed out that:

As a. rule, the employment of a work-man does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of national extension of the employer's premises so as to include an area which the workmen passes and repasses in going to and in leaving the actual place of work. There may be reasonable extension in both time and place and a workman may regarded as in the course his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extensions.

The Supreme Court observed in that case that:

When a workman is on a public road or a public place or pa a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A. workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension outside of which the, employer is not liable to pay compensation for any accident happening to him.

In that case, the workmen employed in a salt works, while returning home after finishing his work, had to go by a public path, then through a sandy area in the open public and finally across a creek through a ferry boat. The workman while crossing the creek in a public ferry boat which capsized due to bad weather, was drowned; It was held, on the facts of that case, that the accident could not be said to have arisen out of and in the course of the employment while crossing the creek inasmuch as the theory of notional extension could not extend to the point where the boat capsized.

7. It is thus seen from this decision that normally when a person is proceeding from his home to the place of work, he cannot be said to be in the course of his employment. It is especially so if he proceeds by a public transport which is available for every citizen as, in that case he must -be deemed to be using the public transport like any other ordinary citizen. But there may be circumstances which would indicate that even before he reaches the workspot and is on his journey from his home to the place of the work or from the place of work back to his home, it would still be in the course of employment. There is no hard and fast rule and the question has to be determined with reference to the facts and circumstances of each case. As was pointed out by Lord Romer in Weaver v. Iredegar Iron and Coal Co. Ltd. [1940] 3 All E.R. 157 at 175.

In all cases, therefore, where a workman, on going to or on leaving his work, suffers an accident on the way, the first question to be determined is whether the workman was at the place where the accident occurred in virtue of his status as a workman or in virtue of his status as a member of the public.

In B.E.S.T. Undertaking v. Mrs. Agnes : (1963)IILLJ615SC , the Supreme Court had to consider in detail the scope of the notional extension. They pointed out that the scope of such extension must necessarily depend upon the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of ingress and egress to and from the place of employment. In the case before them, a driver of a public transport undertaking in Bombay was returning to his house after finishing his day's work. He was travelling in a bus belonging to the employer. The bus met with an accident as a result of which he was fatally injured. It was held that though the driver of the bus belonging to the undertaking had used a public transport, the user was by way of a proved necessity. A contractual duty or obligation on the part of an employee only to use a particular moans of trans port extends the area of the field of employment to the course of the said transport. The exigencies of the service, the practice obtaining therein and the nature of the service obtaining therein would be the guiding factors to ascertain the scope of the duty. After reviewing all the authorities interpreting the expression 'arising out of and in the course of employment' and similar expressions the Supreme Court observed that the Courts have agreed that the employment does not necessarily end when the 'down tool' signal is given or when the workman leaves the actual workshop where he is working There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. In that particular case, they observed that the bus driver was under a duty to appear punctually at the depot to which he was allotted at the calling time. He was permitted to travel free of charge in a bus in uniform. It was presumably to enable him to keep up punctuality and to discharge his onerous obligations that he was given the facility in his capacity as a driver, to travel in any bus belonging to the undertaking. It was also observed that Bombay was a city of distances. Without the said right, it would be very, difficult for a driver to sign on and sign off at the depots at the schedule timings, for he had to traverse a long distance, But for that facility, not only punctuality and timings cannot be maintained but his efficiency will also suffer It was sought to be argued that such class of employees could as well go by local suburban trains or by walking. But the. Supreme Court observed that the employees could not afford the former method and the latter; having regard to the long distances involved, would not be practicable. In those circum stances, it was held that the free transport provided was a proved necessity giving rise to an implied obligation on his part to travel in the said bases as a part of his duty, He was not exercising the right as a member of the public, but only as one belonging to a service.

8. In the light of the principles enunciated in these case; it has to be considered whether, in the present case, the accident can be said to have arisen out of or occurred in the course of employment. We have perused the evidence adduced in the case The evidence is to the following effect : The lorry used to carry not only the workers employed directly under the Government, but workers employed under the contractors also. From 1969 onwards, the practice was inforce and the workers employed under the contractors used to travel in this lorry. They were not required to pay any charges and were taken free along with other work men. The contractors had no lorry belonging to: them for the purpose of carrying the workers and hence the workers used to avail themselves of the Government lorry. It was sought to be contended that the Government lorries were prohibited from taking workmen working under the contractors; but it was admitted that no separate passed were issued to the workers to enable them to identify themselves either as workers of the the Government or those working under the contractors. It was only after the accident that such passes were issued and instructions were given not to carry the workers working under the contractors in Government lorries. R.W. 1, an Assistant Engineer-in-charge of the works entrusted to the appellant, stated that the workers of the appellant were not entitled to travel in the department transport, and in particular, he stated that the lorry which met with the accident was only for the staff employed in dam division IV, whereas the contractor was entrusted with power tunnel works in dam division II. He, however, admitted that he could not produce any circulars to show that the workers under the contractors should not be carried in the lorries and further admitted that passes were issued to departmental workers to travel in Government vehicles only after the accident. On the other hand, P.W. 2, who was working in the Compressor Sub-Division, stated that since 1969 the lorry used to carry the workers to the dam site. Though the lorry belonged to the dam division IV, all the workers working in the project either under the Government or under the contractors used to travel in the said lorry. Since the workers used to live 7 Kms. from the dam site the lorry was being provided to take the workers to the place of work so as to enable them to reach the workspot in time. The wives of the deceased labourers also spoke to the fact that their husbands regularly used to catch the lorry at 6 A.M at Domelpenta and proceed to the workspot

9. On a perusal of the entire evidence, it is clear to us that as a matter of regular practice, the lorry was carrying all workers including the workers under the appellant-contractor. It may be that the ultimate destination of the lorry was division No. 4 which is said to be on the right bank, whereas the power tunnelling carried on by the appellant was division No. 2 on the left bink There is nothing improbable for the workmen, whose workspot is on the way, to get down on the way from the lorry which is proceeding to a further point. Sri Panduranga Rao vehemently argued before us that the burden lies upon the workmen to show that the accident occurred during the course of the employment and in order to substantiate this, one essential fact to be proved by them was that the lorry was proceeding on the day of the accident to the place of work. In this case the evidence is that every day the lorry used to start at Domulpenta and a number of workers either working under the department or under the contractors used to get into the lorry. It is reasonable to infer, therefore, that on the day of the accident also, the lorry was going through the place where the injured persons had to get down for going to their workspot and, therefore, the injured persons made use of this facility. There is no evidence contra to show that, on this particular occasion, the lorry was being used for any other purpose or that the injured persons were proceeding in the lorry for any purpose other than proceeding to the workspot. In cross-examination, it was repeatedly suggested to them that they were going in the lorry to attend to some personal work : but this was denied. In view of the fact that it was a working day and that the lorry started at 6 A.M. as usual, there cannot be any doubt that the lorry was doing its usual rounds and the injured persons were proceeding only to the workspot.

10. The learned Counsel for the appellant contended that, even so, the injured persons in the accident would occupy the same position as a person travelling in a public transport and on the authority of the decisions of the Supreme Court referred to above submitted, they cannot be said to have been involved in an accident arising during the course of employment. He submitted that the appellant has not provided for any transport and it was not obligatory on the part of the labourers to travel in this lorry. In our view, it is not necessary that the workman concerned should either travel in a conveyance provided by the employer or that it would be obligatory on their part to do so in order to conclude that they were in the course of employment while travelling in that conveyance. As has been repeatedly pointed out by the Supreme Court in the two decisions referred to above, the question has to be considered with reference to the facts and circumstances of each case. In this case, there has been a long course of conduct by which the workers of the contractors also were proceeding to the work-spot in the departmental lorry. It is, therefore, reasonable to infer that the contractors expected the workmen to make use of this facility especially when it is to be noted that they were not being charged for travelling in the departmental lorry. As in the case of B.E.S.T. Undertaking v. Mrs Agnes, (supra) where it was observed that Bombay was a city of vast distances in this case also, the workspot is nearly 8 Kms. from the place where the labourers reside. It was to the advantage of the appellant that the workers made use of conveyance like a lorry so that they may not only arrive punctually at the workspot, but would not be exhausted by the time they start their work if they were compelled to go to the workspot by walk. We are of the view that, having regard to all the facts and circumstances of the case, it is proper to infer that the contractors expected these persons to avail themselves of the facility of the departmental lorry for arriving at the workspot. The question is a mixed question of law and of fact and there is no reason for us to interfere with the conclusion of the Commissioner under Section 30 of the Workmen's Compensation Act, which permits this Court to interfere with the findings of the Commissioner only where a substantial question of law is involved.

11. The learned Counsel for the appellant referred to a number of decisions wherein it was held that the employee concerned, while proceeding to his place of work, was not going in the course of his employment. In Ray & Co. v. Taslim : (1967)IILLJ307Cal , the workman was going to his work on foot while he was run over by a taxi outside the gates of the factory in which he was employed. In Abdul Majid v. The King : AIR1950Cal164 , the workman was going to the factory on a bicycle which was not provided by the employer. In Vishnu v. Ramunni (1939) 2 M.L.J. 851 : A.I.R. 1940 Mad. 207, the workman was going as a passenger in a public bus. All these cases are distinguishable from this case, where we have held that, as a matter of practice, the workers employed by the appellant-contractor in or near Domulpenta were expected to use the Government transport lorry regularly proceeding from Domulpenta towards the side of the workspot for enabling them to reach the workspot in time.

12. In the result, we agree with the order of the Commissioner for Workmen's Compensation and dismiss the appeals with costs.


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