REGIONAL DIRECTOR, E.S.I. CORPN. AND ANR. v. FRANCIS DE COSTA AND ANR.

A work connection to impel the courts to fmd temporary room for it within the course ~f employmen~ concept.

De hors the Human Right and constitutional goal, the march of Jurisprudence emphasises that the law did not remain static but kept pace with the changing social demands to secure socio-economic justice to workman.

It would thus be held that the employment of a workman does not commence until he has reached the place of employment and does not continue after he has left the place of work, the journey to and from the place of employment being excluded. An employee travelling from his residence to his place of work ordinarily is not on duty and is not acting in the course of his employment. But travelling as a part of duty between place nf work and residence is in the course of his employment when the employee is entitled to payment of travelling allowances/wages is part of duty. The employee then is travelling on the employer's time. He will be acting in the course of his employment. The doctrine of coming in -and· go from work place is subject to reasonable extention. It is common knowledge that the home is the employee's base from which it is his duty to start for work. When an employee was travelling by direct route from his/her home to the place of work but for that he/she has no occasion to traverse the way though private/public road way is the normal or agreed or accustomed route to reach the work place, he/she must be treated to be travelling in the course of his/her employment as incidental to join the duty or leaving the work place. The accident is in the C;Ourse of his emplo~ent because he/she is then at the scene of the accident by reason only of his/her employment and he/she has reached the sphere of employment. The test is whether the employee has exposed to a particular risk by reason of his/her employment or whether he/she took the same risk as is incurred by any other public using the public way·otherwise then his/her employment. The accident occurred while using transport provided by the emploY.er is during the course of employment. The motive to use public ·or private transport .or route to reach the place of accident is not relevant. The employee may use the place, public road or transport services as usual course of means of attending to or going from the place of ~ork, office or factory. The proximity of time and place of accident to the time of report- ing to the duty or after duty time are relevant facts to be reckoned. No H hard and fast rule can be liad, When a workman walks/rides the bicycle

E.S.I. CORPN. v. FRANCIS DE COSTA [RAMASWAMI, J.) 55

etc. along the public road/street to get to his/her work, his/her right to walk A .J... does not spring, undoubtedly, from employment, and he/she also may exercise it as a member of the public. Nevertheless the workman too uses the public/permitted private way as access/means to attend to duty. The question whether he/she had _encountered the danger or the accident exercising his/her right and to be at the place of incident as a member of the public or as his/her integral courser of employment must always be born B in mind and is a question of fact to be .considered in each case. While as a member of the public he/she may have a right to walk or ride a cycle, --\ drive a car etc. but while walking or crossing the road/driving to reach the place of work or duty he/she encounters the danger or the accident, which he/she would not have encountered but for that employment, then it must c be incidental to his/her employment. The motive which induces the employee to do a thing is not material. His/her motive to go by a particular route is also immaterial, whether it was to save time or to save himself/her- self from trouble. Whether the place at which the injury/death occurred _.) was on the only route or at least the normal/accustomed route which the D employee must traverse to reach the place of work and became the hazard of the employment is also relevant fact. It is impossible to exactly define in positive terms the degree of casual connection. The fact that the risk is common to all mankind does not prove that the accident has not arisen out of employment. It must be sho\Vn that the employee was exposed to the risk by reason of employment, though the risk may be common to all. The E ). residents may be exposed to the risk as residents but the employee is exposed to the risk because he/she is required by his/her employment so to expose himself/herself. On the facts in a given ca5e, if the court would come to a positive conclusion, the incidentfmjury/death arose out of and during the course of employment. F It is true, as contended by Shri Tuls~ that Ss.51A and 51C of the Act _,L give statutory presumptions/grounds as to when an accident happen while travelling in an employer's transport, etc. The Act intends to reiterate the

' law declared by this court, apart from creating same statutory presump- tions. But it is no cortolary to conclude that an accident arising out of and G in the course of employment, in any other way, by necessary implication, should stand excluded. In Gi~ Devi Anand v.Jeevan Kumar& Ors., [1985} ,..:..... Suppt 1 SCR 1 a Constitution Bench of this Court was called upon to consider under Delhi Rent Act by expressly defining heirs of tenant of residential accommodation are. tenants whether to exclude heirs of the H

56 SUPREME Cci'URT REPORTS (1992) 3 S.C.R.

A tenant for commercial tenancy. It was contended that by necessary implica- tion it stood excluded. This Court negatived that contention and held that the statute by necessary implication did not exclude the heirs of the tenant in occupation of commercial accommodation and applied the general law relating to succession and the contract and upheld that they are tenants for B commercial premises as well. To the extent ~vered under Ss.51A to 51D by statutory amendment stands incorporated in the Act but in other respects the court has to consider whether the accident has arisen out of and· in the course of employment, de hors the statutory presumptions etc. provided in Ss. 51A to 510.

C The next contention that the Motor Vehicles Act provides the remedy for damages for an accident resulting in death of an injured person and that, therefore, the remedy under the Act cannot be made availed of lacks force or substance. The general law of tort or special law in Motor Vehicle& Act or Workman Compensation Act may provide a remedy for damages. The coverage of insurance under the Act in an insured employ- D ment is in addition to but not in substitution of the above remedies and cannot on that account be denied to the employee. In K Bharati Devi v. G.l.C.I., AIR 1988 A.P. 361 the contention that the deceased contracted life insurance and due to death in air accident the appellant received compensation and the same would be set off and no double advantage of ·E damages under carriage by Air Act be given was negatived.

It falls foul from the mouth of the appellant, a trustee de son tort who collected the premium from the employee and employer with a promise to expend it for disability, to attempt to wringgle out from the F promise or to deprive the employee the medical benefit for employment injury covered by the insurance on the technicalities. It is estopped to deny medical benefit to the insured employee. We are conscious of the fact that the plea of estopple was not raised by the respondent but it springs from the conduct of ~ appellant.

G Applying the· above law to the facts, the necessary conclusion is that the respondent was trekking the road to attend to duty which found to be the ~ccustomed rout~ to reach the factory and just few minutes before i.e. 15 minutes before reporting to duty he was struck by the truck resulting in the employment injury. It, therefore, occurred during the course of .his IH employment and thereby he is entitled to the amount as compensation

E.S.I. CORPN. v. FRANCIS DE COSTA [REDDY, J.) 57

under the Act. The appeal is dismissed but without costs. A

B.P. JEEVAN REDDY, J .• This appeal raises a question with respect to the meaning and ambit of the expressions "in the course of employment" and "arising out the employment" expressions occurring in the definition of "employment injury" in clause (8) of Section 2 of the Employees' State B Insurance Act, 1948. The appeal is preferred by the E.S.I. Corporation against the judgment and order of a 'Division Bench of the Kerala High · Court dismissing its appeal.

The first respondent, Francis De Costa, was employed with J & P Coats {P) Ltd., Koratty, second respondent in this appeal. He was an insured employee. On 26.6.1971 he was going on a cycle, owned by him, to report to duty at the factory. While he was at a distance of one kilometer from the factory, he was hit by a lorry bt'.longing to the employer. As a result of the accident, be suffered servere injuries and was declared totally and permanently incapacitated for work in the factory. It was so certified by the Insurance Medical Officer. The employee-first respondent laid a claim for the benefits under the Act before the Regional Director, E.S.I. Corporation (the appellant herein) which was rejected. The first respon- dent thereupon moved the Employees' Insurance Court for relief under Sections 75 and 76 of the Act. His case was that since the injury was suffered by him while on the way to his duty, it is an 'employment injury'. E The Corporation, however, contended that it is not so, inasmuch as the accident took place on a public road. The E.S.I. Court held in favour of the first respondent, against which the Corporation preferred an appeal to the High Court unsuccessfully. F The facts found by the E.S.I. Court and accepted by the High Court are to the following effect: On that day, the first respondent bad to report for duty at 4.30 P.M. The first respondent was proceeding to the factory on his cycle, following the usual route along which he passed every day to and from the factory. The cycle on which he was riding was purchased by him from the advance given to him by the employer with a view to facilitate G· speedy arrival at the factory. The first respondent was not guilty of negligence while riding the cycle.

It is on the above facts that the question arising herein has to be answered. H

58 SUPREME COURT REPORTS (1992) 3 S.C.R.

A The Act was enacted by Parliament since it though it expedient to r.l... provide for certain benefits to employees in the case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. Section 2 is the interpretation clause, Clause (8) whereof defines 'employment injury' in the following terms:

B "(8) "employment injury" means a personal IDJUry to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable ~- employment, whether the accident occurs or the occupational disease is contracted within or outside the torritorial limits of c India;)"

A reading of the 'definition' shows that for constituting an employ- ·-- ment injury it must not only be caused by an accident arising out of his employment but must be one arising in the course of his employment. Both --4..... ingredients must be satisfied. Chapter IV (Sections 38 to 45B) deals with the contributions to be made both by the employers and the employees while Chapter V specifies the benefits which can be extended to the insured persons. (Section 46 inter alia provides for periodical payments to. an employee disabled as a result of an employment injury as well as to the dependants of an insured person who dies as a result of employment injury). Section 51 read with the First Schedule prescribes the amounts .~. payable in case of disablement. Sections 51-A to 51-D were added by the Amendment Act 44of1966. Section 51-A creates a rebuttable presumption to the effect that the accident arising in the course of employment shall be presumed, in the absence of evidence to the contrary, to have arisen out . of that employment as well. The Section reads as follows: F "51-A. Presumption as to accident arising in course of employ- _.)..__ ment - for the purpose of this Act, an accident arising in the course of an insured person's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment." G Section 51-B provides that an accident shall be deemed to arise out of and in the course of employment notwithstanding that at the time of the accident, the employee was acting in contravention of the provisions of any ... ~

law applicable to him or of any orders given by his employer. It is not necessary to quote the section for the purpose of this case. Section 51-C,

E.S.I. CORPN. v. FRANCIS DE COSTA [REDDY, J.] 59

though not directly relevant is still of some significance herein and may, therefore, be set out in full:

"51-C. Accidents happening while travelling in employer's transport. (-)(1) An accident happening while an insured per- son is, with the express or implied permission of his employer, travelling as a passenger by any vehicle to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment, if-

(a) the accident would have been deemed so to have arisen had he been under such obligation; and

(b) at the time of the accident, the vehicle-

(i) is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer, and

(ii) is not being operated in the ordinary course of public transport service.

{2) in this section "vehicle" includes a~essel and an aircraft.)" E According to Section 51-C, where an employee is travelling in a vehicle provided by or on behalf of the employer, and where the travel is to or from the place of work, if any accident occurs resulting in injury to the employee, it shall be deemed that he has suffered the injury arising out of and in the course of employment even if he was under no obligation to travel by that vehicle, so long as the vehicle is not being operated in the ordinary course of public transport service. Section 51-D provides that where an accident occurs while meeting an emergency it shall be deemed to arise out of and in the course of employment. It is not necessary to notice the section for the purpose of this case. Section 74 in Chapter VI provides for constitution of the Employee's Insurance Court while Section 75

- specifies the questions/disputes which are within the jurisdiction of such Court.

In this case the first respondent-employee had not yet reached the factory. At the time of accident he was travelling along a public road, to H

60 SUl'REME COURT REPORTS (1992] 3 S.C.R.

A go to the factory. He was following the usual route which he was following every day for going to and for returning from the factory. He was riding a cycle owned by him which was purchased by him from out of the advance given by the employer for his convenience. The cycle was not provided by the employer, nor was it owned by the employer. The place of accident was_ one kilometer away from the factory. The accident occurred 15 minutes B before the hour when he had to report to duty. While travelling on the public road he was hit by a lorry owned by the employer. Can it be said in the circumstances that he suffered the injury in an accident "arising out of and in the course of his employment"?

C The words. "arising out of and in the course of employment" are not defined~ the Act or the Rules and Regulations made th~reunder. They have no doubt been the subject matter of several decisions not only under this Act but also under the workmen's Compensation Act where to these expressions occur in Section 3. These seemingly simple words have led to D . a good deal of divergence of judicial opinion. While both the expressions ·-~ "arising out of' and "in the course of' do not mean the same thing, both of them do denote and contemplate a causal connection between the accident (which leads to injury) and the employment. The accident, in other words, must not be unconnected with the employment. This in turn raises the question when does an employment begin and end. For this purpose, one E has necessarily to turn to decided cases. But before doing so, it is well to keep in mind two relevant factors: (i) the Act is a piece of social legisla- tion - a beneficial legislation. It creates a fund, contributed both by the employees and the employer (Section 26) to meet and provides for sickness maternity and employment injuries to insured employees (Section 28). Any F interpretation placed upon the above words should be such as to advance the object underl~ng the Act and (ii) in respect of injuries suffered in accidents not arising out of and in the course of employment, i.e., in the . case of injuries other than employment injuries, remedies and forums are different e.g., Motor Vehicles Act, (Section HOA) Railways Act (Sections 82-A to 82-J) and so on. In other words, if an employee covered by the G Act suffers an injury on accourit of an accident not arising out of and not in the course of his employment, he is not without a remedy in law. Forum may be different; procedure may be different; but he certainly has a remedy; just as any other citizen of this country; Neither less no more.

H Coming to decided cases, I may start with the decisions of this Court.

E.S.I. CORPN. v. FRANCIS DE COSTA [REDDY, J.] 61

In Saurashtra Salt Manufacturing Company v. Bai Valu Raja and Ors. A (A.I.R. 1958 S.C. 881) the meaning of the expression "in the course of his employment" occurring in Section 3(1) of the Workmen's Compensation Act fell for consideration. The workman concerned therein was employed -in a salt work. He _was returning home after finishing his work. He had first to traverse a public path, then pass through a sandy area in the open and finally across a creek by a ferry boat. While crossing the creek in the ferry boat it capsized due to bad weather and drowned. A claim for compensa- tion was laid wbfoh dispute ultimately reached this Court. It Wa3 found in that case as well, that the workman was following the usual and ordinary way to go to and return from the s~t works. Imam, J. speaking for himself and N.H. Bhagwati and Gejendragadkar, JJ. stated the law in the following words:

' . ' "7. As a rule, the employment of a_ workman does not com- mence 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. D 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 repasses in going to and in leaving the actual place of work. There may be some reasonable extention · in both time and place and a E 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 F of a workman, keeping in view at all times this theory of notional extention."

After noting the fact that the ferry was not provided by the employer, the learned Judge held as follows: G "It is well settled that when a workman is on a public road or a public place or on a public transport he is there as allY 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 H

62 SUPREME COURT REPORTS (1992) 3 S.C.R~

A of his employment from the moment he leaves bis home and is on bis way to bis 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 extention, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if B it be assumed that the theory of notional extention extends upto point D, the theory ~ot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of bis employment and any accident happening to him on the c journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The D accident which took place when the boat was almost at point resulting in the death of so many workmen was unfortunate, but for that accident the appellant cannot be made liable."

(The Salt works was situated across a creek opposite Porban- E dar. Point A is the place where employee going from Porbandar got into the ferry. They alighted at point B. From point one could go to Salt works passing through the sandy area. On the sandy area near point B there was also a public foot-path leadinglo Salt-works at point D.) F According to this decision an employee who travels along a public road in a public vehicle that is or may not be provided or arranged by his employer and suffers an injury from an accident, cannot be said to have suffered the injury, in the course of his employment, even though he is proceeding to his place of work of returning therefrom-unless, of course, he is at such public place or on such public transport in the course of his employment. For example, an employee may be required to travel throughout the city or a particular area in the course of discharge of his dutie~ as in the case of a Medical Repres~ntatives. It may also be a case where an employee may be sent on an errand or on some work or duty assigned by the employer and in that connection he travels by a public

E.S.I. CORPN. v. FRANCIS DE COSTA [REDDY, J.] 63

vehicle along a public road. A The next decision is in General Manager, B.E.S. T. Undertaking, Bom- bay v. Mrs. Agnes, [1964] 3 S.C.R. 930. In this case the deceased employee was the bus driver of the appellant corporation. After finishing the work for the day, he left the bus in the depot, and boarded another bus to go to his residence. That bus met with an accident r.esulting in injuries to him leading to his death. He widow laid a claim under the Workmen's Com- pensation Act. The question was, whether the death of the employee occurred in an accident arising "out of and in the course of his employment" within the meaning of Section 3(1) of the Workmen's Compensation Act. Subba Rao and Mudholkar, JJ. answered the question in favour of the employee while Raghubar Dayal, J. ruled to the contrary. The majority noticed that a bus driver employed by the appellant-corporation is given the facility to travel in any bus belonging to the Corporation to reach the place of his duty and also while returning therefrom. This facility was found to have been provided not as a matter of grace but as a matter of right of the employees, with a view to increase the efficiency of the service. In other words, it was found that travelling by bus to reach or return from the place of duty was a condition of his service and that there was an implied obligation on the part of the employee to travel in the buses of the Corporation as a part of his duty. In these circumstances, it was held, the accident had occurred during the course of employment. The majority approved and applied the principle of the decision of Court of Appeals in Cremins v. Guest, Keen & Nettle/olds, Ltd., (1908) 1 K.B. 469 the facts of which case were somewhat similar to the case before them.

The above principles were reiterated in Mackinnon Machenzie & Co. F Pvt. Ltd. v. Ibrahim Mahommed Issak, [1970] 1 S.C.R. 869 though the decision therein actually turned on the facts of that case.

We may next notice certain decisions of the High Courts in this country relied upon by the first respondent. The first case is in Bhagubai G v. Central Railway, Bombay, (1954) 2 Labour Law Journal 403 a decision of a Division Bench of the Bombay High Court comprising Chagla, CJ. and Dixit, J. The deceased was a Mukadam employed in the Central Railway at Kurla station. He lived in the railway quarters ad.ioining the railway station. The only ac.cess for the deceased from his quarters to the railway station was througb the compound of the railway quarters. On 20th Dec., H

64 SUPREME COURT REPORTS [1992] 3 S.C.R.

A 1952 the deceased left his quarters a few minutes before midnight in order to join duty. Soon thereafter he was stabbed fatally by some· unknown person. It was not disputed before the Court that "that the accident arose in the course of his employment". The only contention urged by the employer-railway was that the accident did not arise out of the employment of the ·deceased. Chagla, CJ. refe~red to certain English decisions and a B few earlier decisions of the Bombay High Court and held thus:

"In our opinion, once the applicant has established that the deceased was at a particular place and he was there because he had to _be there by reason of his employment and he further c establishes that because he was there he met with an accident, he had discharged the burden which the law placed upon him. The law does not place an additional burden upon the applicant to prove that the peril which the employee faced and 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 D public."

The principle applicable in these matters, according to the learned Judge, is this:

E "Now, it is Clear that there must be a causal connexion between the accident and the employment in order that ·the Court can say that the accident arose out of the employment of the deceased. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The authorities have 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 had to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connexion is established between the accident and the employment. It is now well settled that the fact that the employee shares that peril with other members of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him, the peril must be - ·r-\. _ incidental to his employment. It is also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do with his own action or

E.S.I. CORPN. v. FRANCIS DE COSTA [REDDY, J.] 65

his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril, a causal connexion is established between the employment and the accident."

This is evidently a case where the accident took place on the premises of the employer. The deceased was a railway employee. His place of work was the railway station. He lived in the railway quarters adjoining the station. He was proceeding from his quarter to the station. Thus he was on the employers' premises when he was fatally attacked. This case, therefore, does not help the respondent. It may also be seen that this case was decided before the decisions of this Court referred to above. C The next decision is in Regional Director ESIC v. L. Ranga Rao & Anr., (1981) 2 Karnataka Law Journal 197. This is a case arising under the .- .)· Employees State Insurance Act. The deceased-employee was run over by an unidentified motor vehicle at 9.45 p.m. while he was on his way to join duty at the factory at 10.00 p.m. The accident took place on a national D highway at a distance of two kilometers from the factory. A Division Bench of the Karnataka High Court, speaking through Jagannatha Shetty, J. (as he then was) referred to the definition of "employment injury" in section· 2(8) of .the Act and observed: J_ E "It may be sufficient if it is proved that the employee having regard to his employment has to be at a particular place and by reason of his being in that particular place he has to suffer an injury by accident. If that much is proved, then a causal connection is established between the accident and his employ- ment and he shall be held to have suffered an employment F. injury.

We may also point out that it is also immaterial whether an employee was travelling in a public transport vehicle or an omnibus at the time of an accident. It is equally immaterial whether he was going on a public road or a private lane when G he suffered an· injury. He must have the choice of going in any ,>-- route which is convenient for him, to go. and any mode of conveyance which is economical to him. These matters cannot be considered with any set pattern and greater latitude must be .given to the employees in growing cities and to\vns." H

66 SUPREME COURT REPORTS (1992) 3 S.C.R.

A In Sadgunaben Amrutlal & Ors. v. The Employees' State Insurance Corporation, Vol.22 (1981) Gujarat Law Report 773 the employee was '"' standing at the bus stop for boarding a bus which would take him to the place of his work. The transpOrt-was not proyided by the. employer. He had not been feeling well allegedly on account of strain of his work. While B waiting at the bus stop, he collapsed and became unconscious. He was taken to the hospital but he died even before reaching the hospital. Medical Examination revealed that he died of acute cardiac failure. Thakkar, J. speaking for the Bench opined that a liberal test must be adopted in these matters designed to achieve the social objects underlying the enactment. He upheld the claim. c On the other hand, the learned Additional Solicitor General appear- ing for the corporation relied upon the decisions in Regional Director E.S.I. Corporation, Trichur v. K. Krishnan, (1975) Kerala Law Times 712 rendered by the Division Bench comprising Baiakrishna Eradi and George Vadak- D kel, JJ. and Commissioners for the Port of Calcutta v. Mst. Kaniz Fatema, A.l.R. 1961 Vol.48 Calcutta 310, a decision of the Division Bench of Calcutta High Court Comprising S.C. Lahiri,. CJ. and R.S. Bachawat, J. In both these cases the accident occurred on a public road while the employee was going to or returning from the place of his work. It was held that it cannot be said that the accident has arisen out of and in the course of E employment.

At this stage, a brief reference to some of the decisions rendered in

F U.K. may be in order. Most of the reported decisions are those where the accident took place either on the premises of the employer or while travelling by or on a vehicle providediarranged by the empioyer. In Gane - v. Norton If.ill Colliery Co., (1909) 2 K.B. 539 an employee working in a Colliery left his work and was proceeding by a route which crossed certain railway lines belonging to and under the control of his employet. While trying to cross a railway line he met with an accident and was seriously injured. The workman could have gone by another safer route but since G that was longer, he adopted the shorter one which was indeed used by all the workmen who lived in the same direction as the injured employee. It was fo.und that the said shorter route was used with the knowledge. and consent of the employer. On these facts the Court of Appeal found that the accident must be said to arise out of and in the course of employment · H within the meaning of the Wor~en's Compensati,on Act, 1906. Practically

E.S.I. CORPN. v. FRANCIS DE COSTA [REDDY, J.] 67

same are the facts in John Stewart and Son (1912) v. Longhurst, (1917} A ~- Appeal Cases 249. A carpenter, employed in repairing a barge lying in dock, was returning after the work was over. It was a dark night. While proceeding along the quay, he fell into the sea and drowned. The employees had leave to pass through the dock on their way to and from the barge. It was held by the House of Lords that inasmuch as the man was on the dock premises solely by virtue of his contract of service the B .. accident arose out of and in the course of employment. Again in Howells -:J, v. Great Western Railway, (1928) 97 LJ.K.B. 183, a dock labourer employed to load cargo into a steamer took a shorter route instead of taking the specified route. The specified route was a longer one. All the workers used to follow the shorter route to the knowledge of the Company officials. c While going by the shorter route, the employee was knocked down and killed. The Court of Appeal held that since the accident took place on the premises of the employer and also because he was going by the accustomed -.)-. route, though not permitted, the accident must be said to arise out and in the course of employment. In Cremins v. Guest, Keen & Nettle/olds Limited, D (1908) 1K.B.469 the accident took place on a platform under the exclusive use of the employer. A train was provided by the employer for transporting the workers free of charge. In the circumstances, it was held by the Court of Appeals that it was an implied term of the contract of service that the colliers should have the right to travel by train, to and fro, without charge. ..i. In the circumstances, it was held that the employer was liable. In Weaver E v. Tredegar Iron & Coal Co. Ltd., (1940) 3 All England Law Reports 157, the House of Lords reviewed the entire case law and held that where the accident took place on a platform owned by the Railway Company with which the employer had an arrangement for transporting the employees and the accident took place on such platform, the accident must be said F to have arisen out of and in the course of his employment. Lord Porter observed that the exigencies of service, the practice obtaining therein and the nature of service must all be looke.d into to ascertain the scope of duty and employment. In Hill v. Butterley Co. Ltd., (1948) 1 All England Law Reports 233, the accident took place on the property of the employer. The Court of Appeal held the employer liable. G

,,,,_ We. may now refer to cases wher~ the accident took place on a public road while the employee was going to or returning from the pla'c of work, In other words, in these cases, the accident did not take place on the premises of the employer or while travelling by a vehielc/earriage owned H

68 SUPREME COURT REPORTS (1992) 3 S.C.R.

A situation which is now covered by Section 51-D of the E.S.I. Act, F arose in Blee v. London and North Eastern Railway Company, (1938) Appeal Cases 126. By the terms of employment, the employee was bound to attend to emergency calls outside his duty hours. For this extra work he was paid from the moment he left his house and till he reached back. He was called on such an emergency duty and while going there he was knocked down by a vehicle and died. It was hetd that the accident must be said to have arisen out of and in the course of his employment.

From the above decisions, it emerges clearly that any injury suffered -~- by an insured employee as a result of an accident occurring on a public road (or a public place), even while going to or returning from the place of employment cannot be treated as an employmertt injury. Once it is found

E.S.I. CORPN. v. FRANCIS DE COSTA (REDDY, J.) 69

that the accident took place on a public road, it becomes immaterial whether that place is one mile .or one furlong away from the work place. Of course, if the employee suffers an injury wJiile travelling, whether voluntarily or as a condition of service, by a transport provided or manged by the employer it will be an employment injury. Similarly, if the accident takes place on the premises of the employer, it will be treated as one arising out of and in the course of employment. It is, however, necessary to clarify that if an employee suffers an injury while travelling by a public transport or while proceeding along a public road in the course of performance of his duties e.g., medical representatives, linesmen employed by Electricity and Telephone undertakings, repair and maintenance personnel employed to go to the residential and other places, (where the units/gadgets arc installed), to attend to them and so on.

I do not propose to set out the relevant principles exhustively. It is

- .)_ neither possible nor desirable. I am only stating certain principles keeping in mind the facts of the case before us. In view of these principles, I am of the opinion that the respondent employee herein cannot claim any disable- D ment benefit under the E.S.I. Act for the injuries suffered by hiin.

The appeal has to succeed and is hereby allowed.

ORDER E In view of difference of opinion Registry is directed to post the appeal before the Bench of three Judges for deciding the matter.

T.N.A. Matter referred to Larger Bench.