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Dudhiben Dharamshi and ors. Vs. New Jehangir Vakil Mills Ltd., Bhavnagar - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberL.P. Appeal 172 of 1971
Judge
Reported in1976ACJ136; [1977(34)FLR363]; (1977)IILLJ194Guj
AppellantDudhiben Dharamshi and ors.
RespondentNew Jehangir Vakil Mills Ltd., Bhavnagar
Cases ReferredRegina v. Medical Appeal Tribunal
Excerpt:
.....that decision within the theory of notional extension because of the sufficient proximity both in time and space when the workman was obtaining access through the specified mill gate for the propose. case, (supra) this case could clearly come within what is called 'incident of employment',because, instead of the entire route being prescribed as in other transit cases in the present case the entry gate and timings had been specified by the employer so that the worker could properly leave and enter from that gate facilitating search by the watchman at that particular time, when there was a change over of the shift. therefore, clearly he came within the zone of employment when he carried out these incidental orders which facilitated orderly and convenient transit of the workman through the..........about the time when this deceased was knocked down by a cyclist and he died as a result of this accident. the learned single judge found by accepting the material evidence of jamadar motisinh that no queue had been formed and that the gate was open and the deceased was standing on the road in a group. according to the learned judge the distance at which the main gate was situate was about 10.15 ft. away where the deceased was standing and talking possibly with fellow workers at about 3.20 p.m. when the incident was said to have occurred. it is on these facts that the commissioner as well as the learned single judge held that the theory of notional extension of the premises could not be invoked on these facts. therefore, the claim of compensation having been negatived, the dependents.....
Judgment:

J.B. Mehta, J.

1. The learned single Judge having upheld the Commissioner's order dismissing the claim of compensation by the dependents of the deceased workman in question, they have come in this appeal. There is no dispute that the deceased was an employee of the respondent mill company getting Rs. 175 per month, and that the compensation amount, if the claim was maintainable, would be of Rs. 7,000. The findings of fact which have been arrived at by the learned single Judge are that this employee who belonged to the second shift the mill working at 3-30 p.m. had in the day in question, i.e., April 4, 1966, started from his house to go to the mill on that afternoon. The mill had devised a rule in order to see that the second shift start at 3-30 p.m., that the workers should be inside the mill compound five minutes before the shift commenced. The learned Judge believed the presence of the witness Bhikha Mohan, Ext. 26, a co-worker near the gate of the mill about the time when this deceased was knocked down by a cyclist and he died as a result of this accident. The learned single Judge found by accepting the material evidence of Jamadar Motisinh that no queue had been formed and that the gate was open and the deceased was standing on the road in a group. According to the learned Judge the distance at which the main gate was situate was about 10.15 ft. away where the deceased was standing and talking possibly with fellow workers at about 3.20 p.m. when the incident was said to have occurred. It is on these facts that the Commissioner as well as the learned single Judge held that the theory of notional extension of the premises could not be invoked on these facts. Therefore, the claim of compensation having been negatived, the dependents have come in this appeal.

2. The legal position in this connection is well-settled in Saurashtra Salt . v. Hewitson, (1924) AC 59, where the learned Lord had observed that he supposed certain cases would fall within 'incidents' of the employment in which the journey to and from work may fall within the employment, because by implication but not by express words, the employer has indicated that route; and the man owes the duty to obey. But the mere fact that the man is going to or coming from his work, although it is a necessary incident of his employment, is not enough. Thereafter at page 79, their Lordship considered how zone of employment could be extended because of the facility given in the interest of efficiency of the transport service to the employees or free transport in the bus for coming and going to home. Finally, in Mckinnon Mckenzie v. I. M. Issak, [1970-I L.L.J. 14]; their Lordships in terms construed these two relevant conditions in the Act by pointing out that to come within the Act the injury by accident must arise both out of and in the of employment. The word, 'in the course of employment' meant '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 those factors the workman is brought within the zone of special danger, the injury would be one which arises 'out of employment'. To put it differently, if the accident had occurred on account of a risk which is an incident of an employment, the claim for compensation must succeed unless of course the workman has exposed himself to an added peril by his own imprudent act. Their Lordships adopted the test laid down in Lancashire and Yorkshire Rly. Co. v. Highly, (1917) AC 352, for determining whether the accident 'arose out of the employment'. Lord Sumner laid down the following test :

'There is, however, in my opinion one test which is always at any rate applicable, because it arises upon the very word of the statute, and it is generally of some real assistance. It is this : Was it part of the injured person's employment hazard, to suffer or to do that which caused his injury If yea, 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 one of the ordinary risks of the employment or reasonably incidental to the employment to 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 been in the position in which he was whereby in the course of that employment he sustained injury.'

That is why in Mrs. Margret Thom or Simpson v. Sinclair, [1917] AC 127 at page 144, Lord Shaw had explained the broad basis of these location cases in all of which because of the nature, conditions, obligations or incidents of the employment by which the workman was brought within the zone of special danger that injury by accident was pronounced to have arisen out of the employment. Lord Parmoor at page 144 in terms pointed out that the fact that the risk may be common to all mankind did not disentitle a workman to compensation if in the particular case it arose out of the employment. Any stranger walking along a road in a mine might be exposed to the risk of an accidental fall of coal, but this does not affect the claim of a miner who in the course of his duty, or to obtain access to his work, is unfortunately injured by such fall. I is not doubt not sufficient merely to allege that the accident could not have happened if the appellant had not been in the particular shed. Therefore, the location cases are all decided on the fundamental principle of this notional extension both in time and space so that the sphere of employment gets extended by reason of the nature, conditions, obligations or incidents, of the employment. If by reason of any of these factors the workman is brought within the zone of special danger, where because of that position in which he has been placed by his employment, the risk becomes an incident of employment, in such a case merely because the risk is common to other members of the public would not disentitle a workman to claim compensation.

3. Even as per the learned single Judge's findings, the workman had started from his house on that fatal afternoon and had come at the time at about 3.20 p.m. at a distance of 10-15 ft. from the mill gate, only because of the rule devised by the employer so that the second shift could punctually start at 3.30 p.m. The entry by that particular gate had been fixed by the mill company for the orderly, convenient agrees and ingress for such a large number of 1,000 to 1,200 employees when one shift ended and the other shift started. Therefore, if a workman was knocked down a cyclist while he was standing near the main entrance gate only about 10-15 ft. away trying to get access in the mill so that he could attend the second shift starting at 3-30 p.m. it is obvious that there was sufficient proximity both in time and place with his employment. It was only an ordinary incident of his employment that he had at that fatal hour of 3-20 p.m. to come at that fatal place of 10-15 ft. distance from the main gate, so that he could obtain access in the mill for attending punctually the second shift which was to start at 3-30 p.m. As pointed out by their Lordships in Saurashtra Salt Mfg. Co.'s case, (supra) a workman would not be in the course of employment from the moment he left his home and was on his way of work, but certainly, he was in the course of his employment when he reached this particular point or area of only 10-15 ft. of the main entrance which was the entry gate specified by the mill company, and had come there to obtain access at 3.20 p.m. at that particular time at which the mill expected him to come up, so that the second shift may punctually start at 3.30 p.m. Therefore, the area clearly came as per that decision within the theory of notional extension because of the sufficient proximity both in time and space when the workman was obtaining access through the specified mill gate for the propose. As pointed out in the aforesaid passage of Lord Wrenbury which was approved in the B.E.S.T. case, (supra) this case could clearly come within what is called 'incident of employment', because, instead of the entire route being prescribed as in other transit cases in the present case the entry gate and timings had been specified by the employer so that the worker could properly leave and enter from that gate facilitating search by the watchman at that particular time, when there was a change over of the shift. The employee would be under a duty to obey this rule of remaining present five minutes before the shift commences inside the compound and to enter by this specified gate for this purpose. Therefore, clearly he came within the zone of employment when he carried out these incidental orders which facilitated orderly and convenient transit of the workman through the specified gate, ensuring punctual starting of the second shift.

4. As this settled legal position has not been properly contoured, the alleged finding of fact was clearly one under misconception of law. In Hind Trading Co. v. Union of India, A.I.R. 1970 S.C. 1858 at p. 1863, their Lordships approved the salutary test of Denning. L.J., in Regina v. Medical Appeal Tribunal, [157] 1 QB 574 at p. 582, that when conclusion had been reached which could not reasonably be entertained be the authority if it properly understood the relevant enactment, then it clearly fell into a patent error in point of law. Therefore, the notional extension theory having been wrongly applied both by the Commissioner and the learned single Judge, this appeal must be allowed because the only possible conclusion as per the settled legal position was that the workman was clearly entitled to get compensation under the Act, as both the conditions, 'in the course of employment' and 'arising out of employment' had been fulfilled.

5. Mr. Vyas no doubt vehemently argued that both these extension cases were cases where transit was contemplated and the employer gave a facility for free transport or where the employer's service conditions required him to go out side the premises and in such cases alone such a notional extension could be done. There is no warrant for this assumption in view of the aforesaid settled legal position. When the employer prescribes the whole route of transit, if such principle of notional extension could be applied, there would be no reason for negativing this principle in such a case where the employer has for the purpose of punctually starting his second shift after the change over involved 1,000 or more employees has prescribed the time and place for the orderly and convenient egress and ingress of the workman, and the workman while obtaining access from this prescribed gate meets with this accident when he is expected to be at the particular time and particular place fixed by the employer. The doctrine of notional extension could clearly be applied to such a case because this was only the incident of employment which brought him in the special danger zone in order to fulfil the conditions of his employment as prescribed by the employer. In that view of the matter, this appeal is allowed by setting aside the decision of the learned single Judge and the Commissioner by allowing the claim of compensation of Rs. 7,000 on which there is no dispute, with 6% interest from the date of application till realisation with costs all throughout.


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