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Mst. Abida Khatun Vs. General Manager, Diesel Locomotive - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1973)ILLJ387All
AppellantMst. Abida Khatun
RespondentGeneral Manager, Diesel Locomotive
Excerpt:
- - the passage where he was murdered was safe in the ordinary course, and that he was killed by somebody on account of personal enmity. , but it was pointed out that the same witness had in cross-examination clearly stated that the godown was within their controlling area. something like 'the exigencies of the service. 37. in some decided cases phrases like 'dangerous spot',special peril' or 'added risk' have been used. , risks inherent in the surroundings like risks from natural forces (e. it was held that the authorities had clearly laid down that, if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face peril and the accident is caused by reason of that peril which he has to face, then a.....satish chandra, j.1. this is an appeal under section 30 of the workmen's compensation act, 123, against an order disallowing a claim for compensation. at the hearing of the appeal a learned single judge felt that there was considerable conflict of opinion on the questions of law involved in this case. he consequently referred the appeal to a full bench.2. mohammad ayub khan, the deceased husband of the claimant-appellant, was employed as works supervisor in the diesel locomotive works project, varanasi. 4th june, 1967, was his rest day but owing to some work the senior civil engineer ordered him to report for duty on that day. in pursuance of this order he started from his house at about 6.30 in the morning. on the way, he was assaulted by some unknown persons. as a result of the injuries.....
Judgment:

Satish Chandra, J.

1. This is an appeal under Section 30 of the Workmen's Compensation Act, 123, against an order disallowing a claim for compensation. At the hearing of the appeal a learned single Judge felt that there was considerable conflict of opinion on the questions of law involved in this case. He consequently referred the appeal to a Full Bench.

2. Mohammad Ayub Khan, the deceased husband of the claimant-appellant, was employed as Works Supervisor in the Diesel Locomotive Works Project, Varanasi. 4th June, 1967, was his rest day but owing to some work the Senior Civil Engineer ordered him to report for duty on that day. In pursuance of this order he started from his house at about 6.30 in the morning. On the way, he was assaulted by some unknown persons. As a result of the injuries caused to him he died on the spot. His widow instituted a claim for Rs. 8,000 as compensation against the employer.

3. The Diesel Locomotive Works, the employer of the deceased, admitted that Ayub Khan was employed as alleged and that he was murdered on 4-6-1967 while going to join his duty. It was, however, pleaded that the deceased did not receive personal injury at an accident arising out of and in the course of his employment within the meaning of Section 3(1), Workmen's Compensation Act, It was asserted that he was murdered because of personal enmity and so the employer was not liable to pay compensation.

4. In support of the claim the appellant produced two witnesses. J.K. Mital (P. W. 1) was the Senior Civil Engineer at the D. L. W., Varanasi. He stated that 4-6-1967 was the rest day of the deceased, but he had called him for doing certain work. He died as a result of the assault near the grain godown of the D. L. W, This godown was not within the premises of the D. L. W., but was adjacent to it. The deceased was living outside the D, L. W. premises but the place where he was murdered was his usual way for coming to the D. L. W. In cross-examination he stated that the place where the murder took place was within the limits of their territorial control.

5. P. W. 2, Zakir Hussain, was the father of the deceased. He stated that his son left his house at 6.30 in the morning on a bicycle in order to report for duty. He was murdered on the way. He did not know the reason or the motive for the murder.

6. The employer-respondent adduced no evidence, documentary or oral.

7. The Workmen's Compensation Commissioner held that 4-6-1967 was admitted to be the rest day of the deceased but none the less he had been called to report for duty on that day. Hi was way-laid near the food grains godown which was not within the premises of the D. L, W. The passage where he was murdered was safe in the ordinary course, and that he was killed by somebody on account of personal enmity. On these findings the Commissioner came to the conclusion that the accident did not arise out of and in the course of the employment of the deceased with the D. L. W. The claim was dismissed.

8. Under Section 30, Workmen's Compensation Act, an appeal against such an order lies only on a substantial question of law. The findings of fact cannot be questioned. On behalf of the appellant it was, however, urged that the finding that somebody killed Mohammad Ayub Khan out of personal enmity is vitiated by an error of law because there was no evidence in support of it. learned Counsel for the respondent was not able to point to any material from which either expressly or by implication an inference can be drawn that the cause of the murder was personal enmity. A finding without any evidence can be interfered with in appeal on the ground that it suffers from a substantial error of law. I would, therefore, ignore this finding.

9. learned Counsel then pointed out that it is true that Sri Mital stated that the food-grains godown was not within the premises of the D. L. W., but it was pointed out that the same witness had in cross-examination clearly stated that the godown was within their controlling area. This was a very significant statement which, since it was elicited in cross-examination conducted by the employers, and against which the employers led no rebutting evidence, was binding on them. The fact that the place of the murder was territorially controlled by the employers would only mean that a person could be at that place only with the permission of the employers and that no member of the public would have any right to be there. The learned Commissioner overlooked this part of the statement and since this fact can be treated as admitted between the parties, it ought to be taken into consideration.

10. The claim for compensation was laid under Section 3, Workmen's Compensation Act, Sub-section (1) whereof states :

(1) If personal injury is caused to a workman 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) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding seven days ;

(b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable to-

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of the workman, or

(iii) 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.

11. It will be seen that the liability to compensation arises if personal injury is caused to a workman by an accident, provided the accident arose out of and in the course -of his employment. Under the proviso, if the personal injury results in death of the workman, the employer will be liable, even though the workman may himself have contributed to the accident by being under the influence of drink or drugs or by wilfully disobeying security measures or removing security devices. In case of death, the Legislature has specifically included cases where ths workman by his misconduct of the kinds mentioned in the proviso causes the accident. Such accidents will none the less be deemed arising out of and in the course of his employment. Obviously, the legislative intent is to widen the significance and concept of an accident arising out of and in the course of employment, in cases of death.

12. The Workmen's Compensation Act, 1923, is in pari materia with the Workmen's Compensation Act, 1897 (replaced by the Act of 1906), of England. The relevant provisions of the two Acts are identical in language. The Courts in this country have hence considered English decisions while determining the meaning and connotation of the terms 'accident', 'arising out of and 'in the course of employment'.

13. The term 'accident' caused controversy. Did it imply, as in criminal jurisprudence, absence of mens rea or was mens rea irrelevant as in insurance contracts. Lord Macnaghten in Fenton's case (Fenton v. Thorley [1903] A. C. 443) held that the Act used 'accident' in its popular sense as denoting an unlocked for mishap or an untoward event which is not expected or designed.

14. This, however, did not close the point. Injury by assault was designed by the aggressor. Is such an assault an accident ?

15. This was settled in Kelly's case (Board of Management of Trim Joint District School v. Kelly 1914] A. C. 667. The majority held that it must not be designed by the sufferer. Viscount Haldane, L. C. observed that the principle of the Workmen's Compensation Act was one more akin to insurance at the expense of the employer against accidents arising out of and in trie course of his employment, than to the imposition on the employer of liability for anything for which he might reasonably be made answerable on the ground that he ought to have foreseen and prevented it. The fundamental conception is that of insurance in the true sense. In this context 'accident' would mean the kind of event which is unlocked for and sudden and causes personal injury. If, so far as the workman is concerned, unexpected misfortune happens and injury is caused, he is to be indemnified.

16. Referring to the proviso of the governing section (which was in terms similar to the proviso in our Act) it was observed that the language used in the proviso confirms the view that 'incident' is used as including a mishap unexpected by the workman, irrespective of whether or not brought about by the wilful act of some one else. The view taken by the Court of Appeal in Nishat v. Reyne [1910] 2 K. B. 689, and in Anderson v. Balfour (1910) 2 J.R. 497, that the definition of 'accident' extended to a case of death by murder was affirmed. It was observed that 'injury by accident' is an integrated phrase and an event in the ordinary and popular sense can be described as an accident even though it was caused by deliberate violence.

17. There is no evidence that the occurrence in which Mohammad Ayub Khan received personal injuries was designed by him. The cause or the motive of the occurrence is unknown. It must be held that it was a mishap or an unexpected misfortune so far as the deceased workman was concerned. It was an 'accident' within the meaning of Section 3(1) of the Workmen's Compensation Act.

18. The accident, however, must arise out of and in the course of his employment. The phrase 'out of and in the course of employment' has proved troublesome.

The word 'employment' said Lord Finlay in Davidson & Co. v. M' Robb [1918] A.C. 315, 'must mean the same thing when in apposition with in the course of, as it means when in apposition with 'out of.'

19. Employment was held to mean the discharge of the duties of the workman. This was understood to point to the specific work he was employed to do. Lord Finlay in Dennis case, Dennis v. A. J. White & Co. [1917] A.C. 479 (482), observed that if the injury is by assault it is material to show that the nature of the work involves liability to such mishaps, as in the case of a game-keeper or watchman.

20. Lord Shaw of Dunfermline in Thorn or Simpson v. Sinclair [1917] A.C. 127, 140, 141, held that this would mean that the words 'arising out of the employment' should be construed to mean 'arising out of the nature of the employment'. The noble Law Lord declined to so narrow the statutory words. It was observed that when a minor is engaged to mine coal, and in the course of his work brings down upon himself a mass of superincumbent material it is plain that such a case would fall within the limited construction. But what would result in those infinitely more numerous cases of accident to underground workers, the specific nature of whose employment was, for instance, not in actual excavation, but merely in the haulage of the coal or the lighting or watching of the pit? Accidents arise, not from anything in the nature of the particular miner's work, but possibly from causes, say, subsidence, fires, or escape of gas, taking their origin, it may be miles away, communicating along the strata of the earth and in no way casually connected with the particular workman's jobs. In all such cases it is quite possible to figure injuries by accident in the course of and arising out of employment which are totally disconnected with the nature of the employment upon which the workman was generally or for the moment engaged, but which without any doubt sprang from the employment in the sense that it was on account of the obligations or conditions thereof, and on that account alone that he incurred the danger. His Lordship then held:

In short my view of the statute is that the expression 'arising out of employment' is not confined to the mere nature of the employment. The expression in my opinion applies to the employment as such-to its nature, its conditions, its obligations, its incidents.

21. This statement of the law was approved by our Supreme Court in M. Mackenzie v. I. M. Issak : (1970)ILLJ16SC . It will be seen that though the elucidation was general, the principle was laid down in the context of the phrase 'arising out of employment.'

22. To clarify, the same learned Judge said in Hewitson's case (St. Helen's Colliery Co. v. Hewitson) [1924] A.C. 59,(83), that 'that opinion substantially showed my estimate of what was the scope and meaning of the word 'employment' under the statute. I respectfully adhere to that view (which applies equally to the phrase 'in the course of employment').

(Italicised mine).

23. In the context of both 'out of' and 'in course of employment' has to be understood in the same and liberal sense: something like 'the exigencies of the service.'

24. The conditions or obligations of employment were referable to the duties of the workman, express or implied. Courts differed on the nature and scope of duty. In Hewitson's case (supra) the majority in the House of Lords took a strict view. It was held that the workman should be under the control of the employer at the time of accident and be bound to do what he was doing. There the employer had provided special trains to transport its workers to and from the place of work. But the workmen were not bound to use them. An accident at the railway platform was held outside the Act.

25. The matter was reviewed by the House in Weaver v. Tredegar Iron and Coal Co. Ltd., (1940) 3 A.I.R. 157. The accident occurred at a railway platform provided by the employer for the workmen's transport by railway. Lord Atkin observed that the word 'duty' in the text has such a wide connotation that it gives little assistance as a practical guide. It was held that though the workmen were not bound to use the train, but if practically all the workmen used it, they used it as a condition or incident of the employment. It was held that if a workman, in order to get to the actual place of work, had to enter and leave premises or areas on which otherwise he had no right to be and no reason for being, and, if an accident happens while the workman is so trying to get to his actual place of work, it is related to the employment, because it was part of his duty both to go to and to proceed from the work which he is employed to do.

26. This view of duty has been accepted by our Supreme Court in B. E. S. T. Undertaking v. Mrs. Agnes : (1963)IILLJ615SC . Subba Rao, J. held that though at the beginning the word 'duty' has been strictly construed, the later decisions have liberalised its concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion.

27. The words 'out of' connote origin, source or cause. It has been said that there ought to be a causal connection. The accident should be the effect of which the cause is employment. In Upton v. Great Central Railway Co. [1924] A.C. 302, Viscount Haldane observed that the expression 'arising out of' no doubt imports some kind of causal relation with the employment, but it does not logically necessitate direct or physical causation. It was held:

That the accident should have arisen out of his fulfilment of these conditions (namely the conditions under which he was employed) seems to be all that is required to establish the only kind of causation that is demanded.

There an employee of a railway company was sent from station A to station B to repair a water main there. After finishing his work he returned to station B and awaited arrival of the train for A. As the train came in, he hurried across the platform to reach the proper carriage and slipped and hurt his knee, and he died as a result of the injury. It was admitted the injury arose in the course of employment. The House held it arose out of employment as will, because he was crossing the platform in fulfilment of the implied direction of the employer to return to station A. The fulfillment of the implied duty was the causal relation, because it brought the man to the place of accident.

28. In M. Mackenzie v. I. M. Issak (supra) the seaman (who was killed by unexplained drowning) was off-duty when he fell off the deck. It was held that the accident did not arise out of employment. The Supreme Court referred to the distinction drawn by Farewell, LJ. in Bender v. Owners of SS. 'Zent' [1909] 2K.B. 41, that if a sailor was on duty as a member of the watch and he disappears, an inference might fairly be drawn that he died from an accident arising out of his employment. But, if he was not a member of the watch (that is, he was off-duty) and he came up on deck and disappeared, the accident could not be said to arise out of employment. It is being engaged in fulfilling some duty that makes the main difference.

29. The fact that the employment brings the man to the placs of accident, where he would otherwise have no right to be and no reason for being, establishes the causal relation between the obligations of employment and the accident, especially when the other relevant fact as to the cause is known. Such an accident 'arises out of' the employment. The words 'out of' emphasise that the purpose of the workman's being at the place of the accident should be the employment.

30. The words 'in the course of' point to the time element of employment. The workman must have entered his employment and must not have left it, at the place and time of the accident.

31. It was once thought that employment begins at the employer's premises and ends when the 'down tool' signal is given, or when the workshop is left. This conservative view was given up. Lord Atkin said in Weaver v. Tredegar Iron and Coal Co. Ltd. (supra) (at page 164):

It does not necessarily end when the 'down tools' signal is given of when the actual workshop where he is working is left. In other words the employment may run its course by its own momentum beyond the actual stopping place. There may be some reasonable extension in both time and space.

32. This passage has been referred with approval by our Supreme Court more than once: see Saurashtra Salt Manufacturing Co. v. Bai Valu Raja : (1958)IILLJ249SC , and B.E.S.T. Undertaking v. Mrs. Agnes (supra) at page 199).

33. The decided cases show the extent of this notional extension of the employer's premises or, as Lord Atkin put it in Weaver's case, 'of the area (or the immediate area) of the employment,' or as Subba Rao, J. held 'of the area of the field of employment'. In Weaver's case (supra) Lord Atkin after illustrating several cases of 'going to' or 'coming from' held that the course of employment runs till the place or area where the workman has no right to be and no reason for being except because of the conditions of his employment. The course includes, apart from the actual work-place, such places or areas which the employer provides or controls to facilitate the ingress or egress of his workmen.

34. The course of employment thus does not necessarily run up to the place of the workman's residence. The facts of each case have to be examined to determine its limits. In the present case Ayub Khan had been called on duty on his rest day. He was going on a bicycle to report for work when the accident happened. The obligation of his employment brought him to that place. This was the causal relation. The accident thus arose out of his employment.

35. The place of occurrence was within the area of control of the employers. The deceased was going on the habitual route. The accident at such a place would be in the course of the employment.

36. The injury, namely, death by accident, arose out of and in the course of employment of Ayub Khan. His dependents were within the Act entitled to compensation.

37. In some decided cases phrases like 'dangerous spot', 'special peril' or 'added risk' have been used. When considered out of context they cause confusion. There may be cases where the nature of the employment involves risks peculiar to it. In those cases a direct causal relation exists. They are special risks. A warden of a lunatic asylum, a gamekeeper or a watchman face risk of an assault, because the nature of their work involves it. Employment, however, has been used in the Act in a wider sense, to cover in addition its conditions, obligations and incidents. These elements may expose the workman to risks of an accident. Such risks are what are generally called 'environmental' or 'community' risks, i.e., risks inherent in the surroundings like risks from natural forces (e.g., lightning, etc.). There are other general risks popularly called 'street' or 'locality' risks. In all these, the causal connection is not direct, but proximate. In such cases the relevant query is not whether the nature of the employment involves the risk, but whether the workman faced the dangerous spot during the time of his employment and while doing his employer's work or fulfilling some obligation or condition of his employment.

38. The privy Council in Margaret v. T.B. Sons Ltd. A.I.R. 1933 P.C. 225 (229), held that the phrase 'dangerous spot' means a spot which, in fact, turns out to be dangerous. It dissented from the definition of this phrase by Lord Wrenbury in Allcock v. Rogers, 118 L.T. 386, as a place which has some quality which results in danger, as for instance, that an insecure wall which may fall exists there.

39. With respect, I am in agreement with the decision of Chagla, C.J. in Bhagubai v. General Manager, Central Railway : AIR1955Bom105 . In that case the deceased was employed in Central Railway at a station and he lived in the railway quarters adjoining the railway station. It was found as a fact that the only access for the deceased from his quarters to the railway station was through the compound of the railway quarters. One night the deceased left his quarters a few minutes before midnight in order to join duty and immediately thereafter he was stabbed by some unknown persons. There was no evidence that the employee was done to death because some one was interested in murdering him. It was admitted that the accident arose in the course of his employment. It was held that the authorities had clearly laid down that, if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face peril and the accident is caused by reason of that peril which he has to face, then a causal connection is established between the accident and the employment, because the peril was incidental to his employment. I would respectfully add that the peril or the risk was incidental to the employment because at the time of the accident the deceased was fulfilling an obligation of his employment, namely, to join duty, and while doing so he became exposed to the risk of being assaulted. The facts of this case are similar to the present one and the decision is applicable.

40. learned Counsel for the employer sought to-place reliance upon Fitzgerald v. S.G. Clarke and Son [1908] 2 K.B. 796. The House of Lords in Thorn or Simpson v. Sinclair (supra) at page 138, held this decision to be doubtful. learned Counsel also referred to Kelly's case, (supra). An assistant master at an industrial school, while engaged in the performance of his duties was assaulted by two of the pupils and killed. The entire discussion was if the event was 'an accident'. The majority held that the motive of the assaulter was immaterial. The victim had not designed it and so it was an accident. This case is not an authority for the plea that an assault would arise out of the employment only when the motive of the assaulter is known, and the motive connects it with the work of the victim. As already seen, such a submission has been repeatedly repelled. If it is established, as the evidence in Kelly's case (supra) did, that the aggressor planned the murder because of the victim's toughness in his work, the fact goes to show the existence of a direct cause. But, as- seen, a direct causal relation is not necessary. A proximate connection is also enough. If the victim is 'on duty' (in its liberal sense), the accident arises out of employment.

41. In my opinion, the phrase 'in the course of and arising out of' denotes an integrated idea involving the concept of time, place as well as purpose. As explained above, if these factors are established, i.e., the workman is at the place of the occurrence during his employment and for the purpose of his employment, the employer can get out of the Act only if it is proved that the occurrence was designed by the workman (as in the case of a suicide) or was due to his wilful misconduct (as in a case of personal enmity). If these facts are proved, the case, in my opinion, goes outside the Act because then it ceases to be an 'accident' as known to the section. An event proved to be designed or expected by the workman is not an 'accident'. In the present case, there is no evidence of suicide or personal enmity. The employer remains liable.

42. The Employees' State Insurance Act, 1948, is in pari materia with the Workmen's Compensation Act, 1923. It by Section 3 establishes an Employee's State Insurance Corporation and by Section 26 an Employees' State Insurance Fund to which the Central Government makes a grant (S. 27) and to which contributions are made by the employees, as well as the employer (S. 3p). Section 38 provides that subject to the provisions of this Act, all employees in factories or establishments to which this Act applies shall be insured in the manner provided by the Act. Section 1(4) states that the Act shall apply in the first instance to all factories including factories belonging to the Government other than seasonal factories. Section 28 lays down the purposes for which the Employees' State Insurance Fund shall be expended. One of the purposes is payment of benefits to insured persons and to their families. Section 52 provides for dependants' benefits. It says that where an insured person dies as a result of an employment injury sustained as an employee under this Act, dependants' benefits shall be payable to his dependants at such rates and for such period as is specified in the Second Schedule. Section 53 provides for disablement and dependants' benefits. It says:

53. Disablement and dependants' benefits.-Where an insured person is or his dependents are entitled to receive or recover, whether from the employer of the insured person or from any other person any compensation or damages under the Workmen's Compensation Act, 1923, or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act, then the following provisions shall apply, namely:

(i) The insured person shall, in lieu of such compensation or damages, receive the disablement benefit provided by this Act (but subject otherwise to the conditions specified in the Workmen's Compensation Act, 1923) from the Corporation and not from the employer or other person.

(ii) If the insured person dies as a result of the employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury), dependants' benefit shall be payable at the rates and in the proportion specified in the Second Schedule to his widow or widows during her or their widowhood, and to minor legitimate or adopted sons and minor legitimate unmarried daughters.

(iii)...

(iv) ...

(v) Save as modified by this Act, the obligations and liabilities imposed on an employer by the Workmen's Compensation Act, 1923, shall continue to apply to him.

This Act provides for payment of benefits for employment injuries to the insured person and in case he dies to his dependants. Compensation for employment injury is payable to the insured person by the Corporation, the employer is not liable to pay it. But, in case of death, the dependants are entitled to claim compensation at the rates specified in the Second Schedule from the Corporation, and this is not in lieu of their entitlement to the compensation under the Workmen's Compensation Act, 1923, but appears to be in addition to it.

43. The insured person or his dependants can claim compensation only in respect of an employment injury. Section 2(8) defines an employment injury to mean a personal injury to an employee caused by an accident or an occupational disease arising out of and in the course of his employment in a factory or establishment to which this Act applies, which injury or occupation disease will entitle such employee to compensation under the Workmen's Compensation Act, 1923, if he were a workman within the meaning of the said Act. It will thus be seen that the entitlement to compensation under the State Insurance Act is in respect of the same injury for which compensation is provided by the Workmen's Compensation Act, 1923, namely, an injury by accident, arising out of and in the course of his employment.

44. Under the Employees' State Insurance Act the employee also makes contribution to the Fund from which he or his dependants are entitled to receive the benefits. The significance and connotation of the expression 'arising out of and in the course of employment' given to the phrase occurring in the Workmen's Compensation Act will have a direct impact upon the right of the workman to claim compensation under the State Insurance Act. This phrase should, therefore, be construed liberally so that the combined object of the Workmen's Compensation Act and the Employees' State Insurance Act of providing insurance is advanced. It should not be so construed as to deprive an employee from compensation from the Corporation even though he may have contributed a substantial sum to it as an insurance against a contingency like death owing to an employment injury. This aspect also impels me to construe the phrase 'arising out of employment' in its liberal and realistic sense.

45. It is agreed that the monthly wages of the deceased was Rs. 285,50. Under Section 4 read with the 4th Schedule of the Act, the employers were liable to pay Rs. 8,000 as compensation. V

46. In the result, the appeal is allowed. The impugned order is set aside. The application for recovery of Rs. 8,000 is decreed with costs throughout.

M.N. Shukla, J.

47. I have had the advantage of perusing the judgments prepared by my learned brothers Hence, it is not necessary for me to repeat the facts of the case and I shall content myself merely with the treatment of the question of law which falls for decision, I regret my inability to agree with the conclusion reached by Hon'ble Satish Chandra, J.

48. The employer's liability under the Workmen's Compensation Act arises provided the conditions laid down in Section 3 of the Act are fulfilled. This provision has been the subject of a catena of judicial decisions, English as well as Indian. The one point which emerges from these decisions is that the condition precedent to a liability under the said provision is a causal connection or association between the employment and the injury caused by the accident. If after looking at the whole body of facts it can be drawn as a fair inference and without overnice conjectures that an act done in carrying out the condition of the employment caused the accidental injury, the employer would be liable for paying compensation. In the instant case where the workman was murdered no liability for compensation can be fastened on the employer unless some nexus can be established between the employment as such and the act of murder. This aspect of the nature of liability under the Workmen's Compensation Act is fully illustrated by the decision in the leading case of the House of Lords in Board of Management of Trim Joint District School v. Kelly (supra). The facts of that case were that an assistant master at an industrial school, whilst engaged in the performance of his duties, was assaulted by two of the pupils in pursuance of a preconcerted plan of attack and killed. A dependent of the deceased claimed compensation from the managers of the school. The country Court judge found that some of the boys were unruly and badly disposed and that the deceased met his death by accident arising out of and in the course of his employment. It was held (1) that the death was caused by accident, and (2) that there was evidence to support the finding of the arbitrator that the accident arose 'out of the employment.' But it may be noted as Viscount Haldane, L.C., pointed out (at page 673 of Report) that there was evidence in the case that the assault was premeditated and the outcome of a conspiracy among some of he boys to injure the school master, who had punished or threatened to punish them, and who on the occasion in question was remonstrating with them. In the instant case similar evidence is lacking and there is nothing to connect the murder of the deceased with the workers in the D. L. W. so as to warrant the inferencs that the accident arose out of the employment.

49. The same principle has been approved by our Supreme Court in recent decisions some of which may be noted. In B. E, S. T, Undertaking v. Mrs. Agnes (supra), the facts were that the workman who was employed as a bus driver in the undertaking finished his work for the day at about 7-45 p.m. at Jogeshwari bus depot. After leaving the bus in the depot, he boarded another bus in order to go to his residence at Santa Cruz, The said bus collided with a stationary lorry parked at an awkward angle on Ghodbunder Road near Erla Bridge, Andheri. As a result of the collision the workman was thrown out on the road and injured. He was removed to hospital for treatment where he succumbed to his injuries. His widow filed an application is the Court of the Commissioner for Workmen's Compensation, Bombay claiming compensation. The Commissioner dismissed the application. On appeal the High Court of Bombay allowed the claim and passed a decree in favour of the widow. Hence, an appeal was preferred in the Supreme Court on behalf of the B.E S.T. Undertaking. The evidence in that case was to the effect that in order to afford facility to the bus drivers employed in the Undertaking and enabling them to attend to their duties punctually they were provided on behalf of the Undertaking free transport in any of the numerous buses owned by the Undertaking. Subba Rao, J. observed:

As the free transport is provided in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of his duty.

He is not exercising the right as a member of the public, but only as one belonging to a service.

Thus, it was emphasised that on the facts of the case it was evident that the facility was given 'in the course of employment'; it was virtually the duty of the employees in the interest of service to utilise such buses both for coming to the depot and going back to their homes. In these circumstances it was held that when a driver while going home from the depot or coming to the depot used the bus and any accident happened to him, it must be deemed to be an accident in the course of the employment. The basis of the whole decision was that the workmen drivers were given that facility not as members of the public but as employees. Therefore, the Supreme Court held that the workman's widow was entitled to compensation. It is manifest that an intimate relationhip between the accident and the course of the employment was established in that case.

50. The same principle was endorsed by the Supreme Court in M. Mackenzie v. I.M, Issak, supra). In paragraph 5 of the reports Ramaswami, J. observed:

There must be a causal relationship between the accident and the employment.

He added:

The expression 'arising out of employment' is again confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents.

In my opinion, the addition of these words does not militate against the former observation which underlines the causal relationship between the accident and the employment. On the other hand, it reinforces the same.

51. Applying the above dictum to the facts of the present case I find absolutely no material which may reflect any intimate relationship between the death of the workman and the course of his employment.

52. It is also necessary to examine the consequences of the proviso to Section 3(1) of the Act. It runs as follows :

Provided that the employer shall not be so liable-

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable to-

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen,

(iii) 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.

Clause (b) of the proviso in substance provides that if the personal injury results in the death of the workman, the employer will be liable, even though the workman may himself have contributed to the accident by being under the influence of drink or drugs or by wilfully disobeying security measures or removing security devices. From this in my opinion it is not correct to spell out a legislative intent to widen the scope of the employer's liability. The substantive provision which prescribes the criterion for the employer's liability for compensation is Clause (1) of Section 3 of the Act. The proviso does not enlarge the area of such liability, much less does it create any new liability. On the contrary, it restricts the scope of the employer's liability in certain situations and at the same time provides that in certain other situations the scope of the liability would not be abridged. The ultimate effect of the proviso is either to curtail or not curtail the extent of the liability created by Section (1). It cannot obliterate the basic condition which must exist, viz., a reasonable nexus between the accident and the employment. Even where a workman by his own action such as drunkenness etc. contributes to his death, the employer becomes liable provided that at the time of the accident the workman was performing the duties of his employment and the accident occurred because he chose to discharge those duties. If he had refrained from discharging such duty, the occasion for the accident would not have arisen. Therefore, there is a fundamental connection between the accident and the employment and the former can be deemed to have arisen out of employment. But where this primary causal connection is absent no liability can be fastened upon an employer by virtue of the proviso to Section 3. In other words, the proviso merely provides where the contributory cause afforded by the workman himself would disentitle him from claiming compensation and where it will not so preclude him. The proviso simply rules out what in its absence would have been extenuating circumstances qua the liability of the employer.

53. In any case the proviso does not enlarge the ambit of the central provision contained in Clause (1) of Section 3. A personal injury to a workman may result in death or disablement for a period exceeding three days or it may not have any of these two results. Assuming for a moment that there was no proviso to the section. In that case if the accident (of either kind referred to above) occurred in the course and arising out of the employment, the employer shall be liable and the circumstances enumerated in (i), (ii) and (in) of Clause (b) of the proviso would be immaterial. The effect of the proviso is to partially restrict that liability, i.e., in cases where there is death or disablement for a period exceeding three days. The factors mentioned in (i), (ii) and (iii) would become material in restricting the liability to cases where the injury results in death.

54. The normal rule of construction with regard to a proviso is that it must prima facie be limited in its operation. It cannot be treated as if it were an independent enacting clause instead of being dependent on the main enactment. It is foreign to the proper function of a proviso to read it as a substantive provision save in very exceptional cases. As Lord Watson said in West Derby Union v. Metropolitan Life Assurance Society [1897] A.C. 647 : 'I am perfectly clear that, if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implication from a proviso'. The principle laid down by the House of Lords in the above decision was that arguments from a proviso which seek to extend the operative effect of the substantive enactment are not legitimate unless there is real ambiguity in the substantive enactment. The rule is thus stated in 'Craies on Statute Law' (sixth edition) at page 217:

The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it ; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect.

When one finds a proviso to a section,' said Lush, J. in Mulling v. Treasurer of Surrey, (1880) 5 Q. B. D. 170, 173 'the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso.

In S. B. K. Oil Mills v. Subhash Chandra A.I.R. 1961 S.C. 1598 (at page 1600) Hidayatullah, J. ruled:

The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule.

Therefore, a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. Sub-section (1) of Section 3 of the Workmen's Compensation Act expressly enunciates the fundamental; condition for creating the liability for payment of compensation. It is not ambiguous, much less absent in the substantive enactment, hence the proviso must be interpreted as reinforcing the same.

55. To me it appears to be of no consequence that the same phrase 'arising out of and in the course of his employment' occurs in another enactment (the Employees' State Insurance Act, 1948) relating to employees in factories, establishments, etc. Section 2(8) of that Act defines an employment injury to mean a personal injury to an employee caused by an accident or an occupational disease arising out of and in the course of his employment in a factory or establishment to which this Act applies. But the adoption of the same language in more than one statute is not a legitimate ground for giving an extended or wider meaning to those words. If other relevant considerations under an Act incline in favour of a restricted construction, the same must be applied. It is irrelevent that the adoption of a liberal interpretation of certain phraseology in a plurality of statutes has the potentiality of conferring more extensive benefits on a sizable section of society. The desire to assist the workman in distress should not load to a stretching of the language of the statute. No doubt, the mandate of the Constitution in Article 38 is to build a welfare society in which justice, social, economic and political shall inform all the institutions of our national life. Never the less, in my opinion, the broad sweep and generalisation and emphasis on social objectives must yield place to a more legalistic approach in the field of industrial jurisprudence.

56. I would, therefore, dismiss this appeal but make the costs easy.

K.N. Seth, J.

57. This appeal by the claimant in a case under the Workmen's Compensation Act (Act No. VIII of 1923) (hereinafter referred to as the Act) has been referred to the Full Bench in view of the importance of the legal questions raised in the case.

58. The husband of the appellant was employed as Works Supervisor (Maintenance) in the Diesel Locomotive Works Project (hereinafter referred to as the D. L. W.). On 4-6-1967 he was called for duty in the morning although that was his rest day, While going to the D. L. W. in the morning, he was murdered by some unknown assailant at about 7-30 a.m. near the grain godown. A claim for Rs. 8,000 as compensation was preferred by the appellant. It was asserted that the deceased was attacked because of his strictness in supervision and taking of work and report for action against certain workers.

59. The claim was contested by the respondent. It was admitted, that the deceased was employed as a works supervisor and was murdered on 46-1967 while coming to the D. L. W. It is also not in dispute that the pay of the deceased was Rs. 285.50 p.m. It was, however, denied that the personal injury in this case was caused by accident arising out of and in the course of employment. It was further asserted that he was murdered because of personal enmity with certain persons.

60. The Workmen's Compensation Commissioner by his order dated 286-1968 dismissed the claim of the appellant holding that the accident did not arise out of and in the course of the employment of the deceased in the D. L. W.

61. The question that arises for consideration in this appeal is whether the accident arose out of and in the course of employment within the meaning of Section 3 of the Act which runs as follows:

(I) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the the provisions of this Chapter..

62. It is well-settled that to enable a claimant to come within the Act, the injury by accident must arise both out of and in the course of employment. The words 'arising out of and in the course of his employment' are part materia with those found in the corresponding section of the English statute. The phrase 'in the course of employment' refers to the time during which employment continues. A narrow meaning was given to these words by the earlier English cases, but subsequent decisions have widened its scope. It is no longer correct to say that the employment commences when the employee reaches his place of work and ceases when he leaves the place. It is unnecessary to refer to the various decisions in England as the theory of notional extension of time and place has been recognised by the Supreme Court in the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja (supra). It was observed:

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

It was, however, emphasised in the aforesaid case 'that when a workman is on a public road or a public place or on 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.' The facts of the case were that in order to reach the place of employment one had to cross a creek on boat and after traversing the sandy area one could reach the salt jetty of the appellant-company. On the day in question a boat carrying certain workmen employed by the appellant-company met with an accident while crossing the creek and some workmen were drowned. Applying the theory of notional extension, their Lordships held that when the workmen left the premises of the employer and reached the bank of the creek for crossing over to the other side and met with the accident while crossing the creek it could not be said that the accident happened in the course of employment. The question was again considered by the Supreme Court in the case of General Manager, B. E. S. T. Undertaking v. Mrs. Agnes (supra). Subba Rao, J., delivering the majority judgment after considering a large number of English cases, observed:

The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the 'down tool' signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of the field of employment to the course of the said transport. Though at the beginning the word 'duty' has been strictly construed, the later decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion.

In the aforesaid case the Supreme Court, after discussing the terms of employment of the workman, came to the conclusion that the right to travel in the bus in order to discharge his duties punctually and efficiently was a condition of his service and on that basis came to the conclusion that when a workman going home from the depot or coming to the depot uses the bus any accident that happens to him is an accident in the course of his employment. It is thus clear that the theory of notional extension of time and place is not unlimited in its scope and would depend on the circumstances of each case. As observed by Lord Porter in Weaver v. Tredegar Iron and Coal (supra) (at p. 179) 'the question is not, I think whether the man was on the employer's premises. It is rather whether he was within the sphere of area of his employment.' Lord Porter further observed:

It is in the course of his employment and, if the phrase be used, it is part of his duty, both to go to and to proceed from the work upon which he is engaged, and, so long as he is in a place in which persons other than those so engaged would have no right to be, and indeed, in which he himself would have no right to be but for the work on which he is employed, he would, I think, normally still be in the course of his employment.

In the present case it is not disputed that the workman was on his way to join his duty, and he met with an accident at a place which was within the jurisdiction of the D.L.W. It is clear that but for his employment the workman would not have been at that place. Applying the theory of notional extension it may be held that the workman met with the accident in the course of his employment.

63. It is, however, not enough that the accident took place in the course of employment and it must be further established that it arose out of the employment. The words ' out of ' and 'in the course of employment' are used conjunctively and not disjunctively. As observed by Lord Wright in Dover Navigation Co, Ltd. v. Grage, (1939) 4 All E. R. 558:

What arises 'in the course of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is employed to do-gives a claim to compensation, unless it also arises out of the employment.

64. The expression ' arising out of the employment' was explained by Lord Shaw in the leading English case of Thorn (or Simpson) v. Sinclair, (supra) thus:

In short, my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment'. The expression in my opinion applies to the employment as such-to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply. If the peril which he encountered was not an added peril produced by the workman himself, as in the cases of Plumb v. Cobden Flour Mills Company [1914] A.C- 62, and Barnes v. Nunnery Colliery Company [1912] A.C. 44, in this House, then a case for compensation under the statute appears to arise.

In this case a woman employed by a fish curer while working in a shed belonging to her employer, was injured by a fall of the wall which was being built on an adjacent building with the result that the shed collapsed and the woman was buried under the wreckage. Applying the test laid down by Lord Shaw it is obvious that the employee was brought within the zone of special danger due to her employ merit and the House of Lords, therefore, held that the accident arose out of her employment and was entitled to compensation.

65. It is not necessary to multiply citation of English cases except to refer to the speech of Lord Tomlin in Simpson v. London, Midland and Scottish Railway Company [1931] A.C. 351, wherein the Law Lord, reviewing previous authorities of the unexplained accident cases, stated :..Where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment;....

In the same case Lord Thankerton observed:..The principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the arbitrator is entitled to infer, in the absence of any evidence tending to an opposite conclusion, that the accident arose out of the employment.

This question has been considered by the Supreme Court in the case of Mackinnon Mackenzie and Co. Private Ltd. v. Ibrahim Mahommad Issak, (supra) wherein Ramaswami, J. speaking for the Court observed :

To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment' 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 employment' are understood to mean that 'during the course of the employment injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master it is reasonable to believe the workman would not otherwise have suffered'. In other words, there must be a causal relationship between the -accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of these factors the workman is brought within the zone of special danger, the injury would be one which arises ' out of employment'. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent Act.

The Supreme Court quoted with approval the following observation of Lord Sumner in Lancashire and Yorkshire Rly, Co. v. Highley [1917] A.C. 352:

There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this : Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury If yes, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of this was within the sphere of the employment or was of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury.

In the case before the Supreme Court the facts were that the deceased was employed as a deck-hand, a sea man of category II 011 the ship. On 13th December, 1961 he complained of pain in the chest, but nothing abnormal was detected clinically. He was prescribed some tablets and the employee reported fit for the work on the next day. On the 15th he complained of insomnia and pain for which he was prescribed some sedative tablets. The official log book of the ship shows that on 16th when the ship was in the Persian Gulf the deceased was seen near the bridge of the ship at about 2.30 a.m. He was sent back but at 3 a.m. he was seen on the tween deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and a search was undertaken. The dead body, however, was not found either on that day or later on. It was a normal night and the Commissioner, who made a local inspection of the ship, saw the position of the bridge and deck and found that there was bulwark more than 31/2 feet. On these facts the Supreme Court, upsetting the judgment of the High Court, ruled that there was no material for holding that the death of the sea-man took place on account of the accident which arose out of his employment. The test applied was that there was no causal relationship between the accident and employment.

66. learned Counsel for the appellant has relied upon a decision of this Court in Works Manager, Carriage and Wagon Shop, E.I. Rly. v. Mahabir : AIR1954All132 . In this case a workman, who lived in a village close to Malhaur railway station, used to come free of cost to Lucknow junction every morning from Malhaur along with other employees in a workmen's special provided by the railway and proceed after crossing the lines to the Alambagh Workshop which was at a distance of about a mile from the junction across the railway yard. This route was taken as a matter of routine for going to and coming from the works in preference to a sub-way and two other overbridge routes which were also available. On the day of accident the workman finished work at 5.30 a.m. and was returning as usual to the Lucknow junction station over the yard in order to catch the passenger train which left there at 8 a.m. for Malhaur. When he was within a short distance of the station platform, he was run over by a shunting engine at about 6.30 a.m. As a result of the accident his legs were crushed and they had to be ultimately amputated. In this case Misra, J. with whose opinion Sapru, J. concurred, held that the accident arose out of the employment. It may be noticed that in this case there WES causal relationship between the accident and the employment. It was established that in order to catch the special train provided by the railway the workman used the shorter route which was taken as a matter of course and but for his employment and the facility provided by the railway for the workman, he would not have been at the place where he met with the accident, The use of the special train by the workman could be said to be one of the terms of his employment. Such circumstances leave no room for doubt that the accident took place in the course of his employment. The case would come within the principle laid down by the Supreme Court in General Manager, B.E.S.T. Undertaking v. Mrs. Agnes, (supra).

67. The learned Counsel placed strong reliance on the case of Bhagubai v. General Manager, Central Railway (supra). In the aforesaid case the deceased was employed in the Central Railway at a station and he lived in the railway quarters adjoining the railway station. The only access for the deceased from his quarter to the railway station was through the compound of the railway quarters. One night the deceased left the quarter in order to join the duty and was stabbed by some unknown person. There was no evidence that the employee was done to death because some one was interested in murdering him. Chagla. C. J. after quoting the principles laid down in Thorn (or Simpson) v. Sinclair (supra) held that the accident arose out of the employment of the deceased that he found himself at a spot where he was assaulted and murdered. In this case it was observed that once the claimant had established that the deceased was at a particular place and he was there because he had to be there because of the reason of his employment, and he further established that because he was there he met with an accident, a causal connection between the accident and the employment was established. In the opinion of the learned Judge the law did not place the additional burden upon the claimant to prove that the accident which arose because of that peril was not personal to him but was shared by all the employees or the members of the public and once a proximate connection is established between the employment and the injury, the claimant has discharged the burden, and the proximate connection between the employment and the injury was the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death. With respect, it is not possible to agree with this broad proposition. The mere fact that the workman was stabbed to death by some unknown person while he was on his way to join his duty would not establish a nexus between the accident and employment. It may establish that he was done to death in the course of his employment, but it is difficult to hold that the accident arose out of the employment. As laid down in Lowell v. Great Western Railway Co. [1940] 1 All E.R. 87, it must be shown that the injury caused was due to the fact that the workman was specially exposed to such peril because of his employment or that the injury was due to some special risk that the workman had to undergo. In the Bombay case there was no such evidence that the injury was due to some special risk the workman had to undergo or that the workman was specially exposed to such peril because of his employment.

68. In the case in hand there is absolutely no evidence as to who caused the murder and what was the motive behind it and it is also not known that there was any risk which was ordinarily inherent in the discharge of the duties of the deceased. It is also not established that the workman was exposed to some special risk at the place where the accident took place. In the absence of any such evidence it is not possible to attribute the accident to any such risk and to hold that the accident arose out of the employment. In fact there is no evidence to connect the death of the workman with his employment. He might have been killed by a person out of personal animosity wholly unconnected with his employment. The evidence on record has several missing links and in the absence of any reliable evidence, it would be unsafe to reach a conclusion that the murder had any connection with the employment of the deceased or in other words it arose out of the employment.

69. Bhagubai's case (supra) was also relied upon for the contention that once it was established that the deceased was a workman and he met with an accident during the course of his employment, the claimant has discharged the burden and it was for the employer then to establish that either the peril was brought about by the employee himself, that he added to or extended the peril, or that the peril was not a general peril but a peril personal to the employee. Here again Chagla, C.J., laid down too wide a proposition with which it is difficult to agree.

70. Dealing with the question of burden of proof Lord Birkenhead, L, C. in Lancaster v. Blackwell Colliery Co. Ltd. [1918] W.C. & I.R. 345 observed:

If the facts which are proved give rise to conflicting inferences of equal degrees or probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case, because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the arbitrator is justified in drawing an inference in his favour.

71. In Mackinnon Mackenzie and Co. Private Ltd. v. Ibrahim Mahommed Issak (supra), the Supreme Court stated the principle on burden of proof as follows:

In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to Court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it.

72. The principle laid down by these authorities appears to be that the burden of proof primarily rests on the workman to prove that the accident arose within the employment, but it is not necessary that there must be direct evidence to that effect. It is open to the Court to draw such an inference from the facts brought on the record of the case if such an inference is legitimately possible. There must, however, be some material on record to lead to the inference that the accident was attributable to the employment of the workman.

73. Keeping in view these principles it may be noticed that in the present case all that the appellant has been able to establish is that the deceased was an employee of the respondent and that he met with an accident while on his way to join his duty. From the evidence of J. K. Mital, who was the Senior Civil Engineer of the respondent at the relevant time, it is clear that the deceased was found lying dead near the grain godown. This godown was not within the area of D. L. W. but adjoined it and was on the way to D.L.W. He, however, admitted that the placo where the workman was found lying dead was within the jurisdiction of the D. L. W. Zakir Hussain, father of the deceased, stated that his son was murdered at a place which fell on the route to D. L. W. He, however, admitted that he could not give any reason for the murder of his son. Apart from the statements of these two witnesses, there 'is no other evidence on record.

74. It is admitted that no report about the murder was lodged with the police. As observed earlier, there is absolutely no evidence regarding the motive of person or persons behind the murder. No special risk ordinarily inherent in the discharge of the duties of the deceased or place where the accident took place has even been hinted at. In absence of these materials it is not possible to connect the death of the workman with his employment. As such, the claimant has miserably failed to establish any proximate connection between the accident and the employment of the deceased and there is no material on record from which an inference could be drawn 11 that effect.

75. The appeal has no merits and is accordingly dismissed. The parties shall bear their own costs.

By the Court-In view of the majority opinions the appeal is dismissed but without any order as to costs.


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