General Manager, B. E. S. T. Undertaking,
Bombay Vs. Mrs. Agnes [1963] INSC 155 (10 May 1963)
10/05/1963 SUBBARAO, K.
SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1964 AIR 193 1964 SCR (3) 930
CITATOR INFO :
D 1984 SC 505 (21)
ACT:
Workmen's Compensation-Accident to a bus
driver-If occurred in course of employment-Claim of compensation by
widow-Employer,if bound to pay-Workmen's Compensation Act, 1923 (8 of 1923), s.
3 (1)-Standing Rules, rr. I (e), 3, 5, 9 (a), 10 (a) (b) (c), 12 (a), 19 (a)
(b), 31 (a), 39 (a).
HEADNOTE:
One P. Nanu Raman was a bus driver of the
appellant corporation. After finishing the work for the day, he left the bus in
the depot, boarded another bus to go to his residence and the bus met with an
accident and, as a result of the injuries received in that accident, he died.
His widow, the respondent, through an application in the Court of the
Commissioner for Workmen's Compensation, claimed compensation by reason of the
death of her husband in an accident alleged to have arisen "out of and in
the course of his employment". The application was dismissed by the
Commissioner, but on appeal the High Court passed a decree in favour of the
widow. Section 3 (1) of the Workmen's Compensation Act, 1923, is as follows :"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 provision of this chapter." Held (per Subba Rao and
Mudholkar JJ.), that under the Rules, a bus driver is given the facility in his
capacity as a driver to travel in any bus belonging to the undertaking,
presumably, to enable him to keep up punctuality and to discharge his onereous
obligations. It is given to him not as a grace, but is of right because
efficiency of the service demands it. Therefore the right of a bus driver to
travel in the bus in order to discharge his duties punctually and efficiently
was a 931 condition of his service and there was an implied obligation on his
part to travel in the said buses as a part of his duty.
Though the doctrine of reasonable or notional
extension of employment developed in the context of specific workshops,
factories or harbours, equally applies to such a bus service the doctrine
necessarily will have to be adapted to meet its peculiar requirements. While in
a case of a factory, the premises of the employer which gives ingress or egress
to the factory is a limited one, in the case of a city transport service, by
analogy, the entire fleet of buses forming the service would be the
"Premises".
In the present case, therefore, the High
Court was right in saying that the accident occurred to Nanu Raman during the
course of his employment and, therefore, the respondent was entitled to
compensation.
Cremins v. Guest Keen & Nettlefolds Ltd.
[1908] 1 K.B.
469, St. Helens Colliery Co. Ltd. v.
Heurfson, [1924] A.C.
59, Aderman v. Great Western Rly. Co. [1937]
A.C. 454, Weaver v. Tredegar Iron and Coal Co. Ltd. (1940) 3 All.
E.R. 157, Dunn v. A.G. Lockwood& Co.,
(1947) 1 All. E.R.
446, Hill v. Butterley Co. Ltd. (1948) 1 All.
E.R. 233, Jenkims v. Elder Dempster Lines Ltd.' (1953) 2 Ail. E.R.
1133 and Saurashtra Salt Manufacturing Co. v.
Bai Valu Raja, A.I.R. 1958 S.C. 881, held inapplicable.
Per Raghubar Dayal J.-Rule 19 cannot be
construed as a condition of service of the bus-drivers of the corporation and,
therefore, cannot artificially extend the period of their duty and,
consequently, the course of employment by the time occupied in travelling by
the bus if the bus driver after discharging his duty or on his way to join duty
happens to travel by bus.
The present is not a case for notionally
extending the territorial area of the premises within which they had to
discharge their duty.
It is not possible to hold that the deceased
was on duty when he was travelling by the other bus and met with the accident
and that the accident arose out of and in the course of his employment and,
therefore, the respondent was not entitled to receive any compensation.
S.S. Manufacturing Co v. Bai Valu Raja, A, I
R. 1958 S.C. 881, relied on.
932 Dennis v. A. J. White & Co. [1917] A.
C. 479, St. Hellens Colliery Co. v. Hewitson, [1924] A.C. 59, Weaver v.
Tredegar Iron & Coal Co. Lid, (1940) 3 All. E.R. 157, Newton v.
Guest Keen & Netilefolds Ltd. (1926) 135
L.T. 386, Longhurst's cases, [1917] A.C. 249 and M'Robb's case, [1918] A.C.
304, referred to.
CIVIL APPELLATE JURISDICTION :Civil Appeal
No. 133 of 1961.
Appeal by special leave from the judgment and
order dated July 29, 1959, of the Bombay High Court in First Appeal No. 317 of
1958.
G. S. Pathak, S. N. Andley and Rameshwar
Nath, for the appellant.
R. Ganapathy Iyer, for the respondent.
1963. May 10. The Judgment of Subba Rao and
Mudholkar.JJ.. was delivered by Subba Rao J. Dayal J., delivered a separate
judgment.
SUBBA RAO J.-This appeal by special leave
raises a short but difficult question of the true construction of s. 3 (1) of
the Workmen's Compensation Act (8 of 1923), hereinafter called the Act, and its
application to the facts of this case.
The Bombay Municipal Corporation, hereinafter
called the Corporation, runs a public utility transport service in Greater
Bombay and the said transport service is managed by a Committee known as the
Bombay Electricity Supply and Transport Committee. The said Committee conducts
the transport service in the name of Bombay Electric Supply and Transport
Undertaking. The Undertaking owns a number of buses and the Corporation employs
a staff, including bus drivers, for conducting the said service. One P. Nanu
Raman was one of such bus drivers employed by the corporation.
There, 933 are various depots in different
parts of the City wherein buses feeding that part are garaged and maintained. A
bus driver has to drive a bus allotted to him from morning till evening with
necessary intervals, and for that purpose he has to reach the depot concerned
early in the morning and go back to his home after his work is finished and the
bus is lodged in the depot. The efficiency of the service depends, inter alia,
on the facility given to a driver for his journey to and from his house and the
depot. Presumably for that reason Rule 19 of the Standing Rules of the Bombay
Municipality B.E.S.T. Undertaking permits a specified number of the traffic
outdoor staff in uniform to travel standing in a bus without payment of fares.
Having regard to the long distances to be covered in a city like Bombay, the
statutory right conferred under the rule is conducive to the efficiency of the
service. On July 20, 1957, the said Nanu Karnan 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 said collision, Nanu Raman was
thrown out on the road and injured. He was removed to hospital for treatment
where he expired on July 26, 1957. The respondent, his widow, filed an
application in the Court of the Commissioner for Workmen's compensation,
Bombay, claiming a sum of Rs. 3,500/as compensation by reason of the death of
her husband in an accident alleged to have arisen "'out of and in the
course of his employment".
To that application the General Manager of
the B.E..S.T. Undertaking, Bombay, was made the respondent, and he contended,
inter alia, that the accident did not arise "out of and in the course of
the employment" of the deceased.
Tile Commissioner dismissed the application
accepting the contention of the General Manager of the 934 B.E.S.T.
Undertaking. On appeal, the High Court of Bombay held that the said accident
arose "out of and in the course of the employment" of the said
deceased and, on that finding, passed a decree in favour of the widow for a sum
of Rs. 3,500/with costs. The General Manager of the B. E. S. T. Undertaking has
preferred the present appeal against the order of the High Court.
Section 3 (1) of the Act reads "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." Mr. Pathak, learned
counsel for the appellant, contends that the words "arising out of and in
the course of his employment" are pari materia with those found in the corresponding
section of the English statute, that the said words have been authoritatively
construed by the House of Lords in more than one decision, that an accident
happening to an employee in the course of his transit to his house after he
left the precincts of his work would be outside the scope of the said words
unless he has an obligation under the terms of the contract of service or
otherwise to travel in the vehicle meeting with an accident and that in the
present case Nanu Raman finished his work and had no obligation to go in the
bus which met with the accident and his position was no better than any other
member of the public who travelled by the same bus.
On the other hand, Mr. Ganapati lyer, who was
appointed amicus curiae, argued that the interpretation sought to be put on the
said words by the appellant was too narrow and that the true interpretation is
that there should be an intimate relationship between employment and the
accident and that 935 in the present case whether there was a contractual
obligation on the part of the deceased to travel by that particular bus or not
he had a right to do so under the contract and in the circumstances it was also
his duty in a wider sense to do as ail incident of his service.
As the same words occur in the corresponding
English statute, it would be useful to consider a few of the leading decisions
relevant to the question raised.
In Cremins v. Guest, Keen & Nettlefolds,
Ltd. (1), the Court of Appeal had to deal with a similar problem. Cremins was a
collier in the employment of the company. He, along with other employees, lived
at Dowlais, six miles from the colliery. A train composed of carriages
belonging to the appellants, but driven by the Great Western Railway Company's
men, daily conveyed Cremins and many other colliers from Dowlais to a platform
at Bedlinog erected by the appellants on land belonging to the said Railway
Company. The platform was repaired and lighted by the appellants, and was under
their control. The colliers were the only persons allowed to use the platform,
but there was a station open to the public at a short distance. The colliers
walked from the platform by a high road to the colliery, which was about a
quarter of a mile from the platform. A similar train conveyed the colliers from
the platform to Dowlais. The colliers were conveyed fret of charge. Cremins was
waiting on the platform to get into the return train, when he was knocked down
and was killed by the train. His widow applied for compensation under the
workmen's Compensation Act, 1906. Under s. 1 of the Act of 1906 she would be
entitled to compensation if the accident arose "out of and in the course
of his employment". The Court of Appeal held that the widow was entitled
for compensation.
(1) [1908] 1 K. B. 469.
936 Cozens-Hardy M. R. gave his reason for so
holding thus : I base my judgment on the implied term of the contract of
service ............". Elaborating the principle, he said :
"......... it was an implied term of the
contract of service that these trains should be provided by the employers, and
that the colliers should have the right, if not the obligation, to travel to
and from without charge." Fletcher Moulton L. J. in a concurrent judgment
said much to the same effect thus :
"It appears to me that the workmen were
expected to travel to and from the colliery by the trains and in the carriages
provided for them by the employers, and that it was intended by both parties
that this should be part of the contract of employment." Though the
accident took place on the platform, this decision accepted the principle. that
it was an implied term of the contract of service that the colliers had to
travel to and from. the colliery by the trains provided by the employers. In
that case, there was certainly a right in the colliers to use the train, but it
is doubtful whether there was a legal duty on them to do so. But the Court was
prepared to give a popular meaning to the word "duty" to take in the
"expectation" of user in the particular circumstances of the case.
The house of Lords in St. Helens Colliery
Company Ltd. v. Hewitson (1), had taken a stricter and legalistic view of the
concept of "duty". There, a workman employed at the colliery was
injured in a railway accident while travelling in a special colliers' train
from his work to his home at Maryport. By an agreement between the colliery
company and the railway company the latter agreed to provide special trains for
the conveyance of the (1) [1924] A. C. 59.
937 colliery company's workmen to and from
the colliery and Maryport, and the colliery company agreed to indemnify the
railway company against claims by the workmen in respect of accident, injury or
loss while using the trains. Any workmen who desired t, travel by these trains
signed an agreement with the railway company releasing them from all claims in
case of' accident, and the colliery company then provided him with a pass and
charged him a sum representing less than the full amount of the agreed fare,
and this sum was deducted week by week from his wages. The House of Lords by a
majority held that there being no obligation on the workmen to use the train,
the injury did not arise in the course of the employment within the meaning of
the Workmen's Compensation Act, 1906. Lord Buckmaster, after citing the passage
already extracted by us in Cremins's Case (1),stated, "I find it
difficult, to accept this test" and proceeded to observe :
"The workman was under no control in the
present case, nor bound in any way either to use the train or, when he left, to
obey directions; though he was where he was in consequence of his employment, I
do not think it was in its course that the accident occurred " Lord
Atkinson also accepted the said principle, but he made an important
observation, at p. 70 .
" It must, however, be borne in mind
that if the physical features of the locality be such that the means of transit
offered by the employer are the only means of transit available to transport
the workman to his work, there may, in the workman's contract of service, be
implied a term that there was an obligation on the employer to provide such
means and a reciprocal obligation on the workman to avail himself of
them".
(1) [1908] 1 K.B. 469.
938 The learned Lord had conceded that a term
of obligation on the part of the employee to avail himself of a particular
means of transit could be implied, having regard to the peculiar circumstances
of a case. Lord Shaw in a dissent gave a wider meaning to the terms of the
section. According to him the expression "arising out of the employment"
applied to the employment as such to its nature, its conditions, its
obligations, and its incidents. He added that a man's employment was just as
wide as his contract.
After noticing the terms of the bargain
between the parties, he concluded thus, at p. 86 :
"These arrangements continued for the
whole twelve years of service. The company and the man were thus brought into
intimate and continual daily relations. The workman secured his access to his
work, the company provided the means of transport." Lord Wrenbury accepted
the majority view and laid down the test thus, at p. 92 :
"A useful test in many cases is whether,
at the moment of the accident, the employer would have been entitled to give
the workman an order, and the man would have owed the duty to obey it."
The learned Lord wag also prepared to imply a term of duty under some
circumstances, for he observed :
"And there are cases which would, I
suppose be within what are called above the "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 939 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." This decision accepts the principle
that there should be a duty or obligation on the part of the employee to avail
himself of the means of transit offered by the employer; the said duty may be
expressed or implied in the contract of service.
The House of Lords again in Alderman v. Great
Western Railway Co.(1), considered this question in a different context. There,
the applicant, a travelling ticket collector in the employment of the
respondent railway company, had, in the course of his duty, to travel from
Oxford, where his home was, to Swansea, where he had to stay overnight,
returning thence on the following day to Oxford.
He had an unfettered right as to how he spent
his time at Swansea between signing off and signing on, and he could reach the
station by any route or by any method he chose.
In proceeding one morning from his lodgings
to Swansea station to perform his usual duty, he fell in the street and
sustained an injury in respect of which he claimed compensation. The House of
Lords held that the applicant was not performing any duty under his contract of
service and therefore the accident did not arise in the course of his
employment. The reason for the decision is found at p.
462 and it is :
"........ when he (the applicant) set
out from the house in which he had chosen to lodge in Swansea to go to sign on
at the station he was (and had been ever since he had signed off on the
previous afternoon) subject to no control and he was for all purposes in the
same position as an ordinary member of the public, (1) [1937] A.C. 454, 462.
940 using the streets in transit to his
employer's premises." This case, therefore, applies the principle that if
the employee at the time of the accident occupies the same position as an
ordinary member of the public, it cannot be said that the accident occurred in
the course of his employment. This is a, simple case of an employee going to
the station as any other member of the public would do, though his object was
to sign on at the said station.
In Weaver v. Tredegar Iron and Coal Co.
Ltd.(1), the House of Lords reviewed the entire law and gave a wider meaning to
the concept of "'duty". It was also a case of a collier.
He was caught up in a press of fellow workmen
trying to board a train and was pushed off the railway platform and injured.
The platform and train were both owned, managed and controlled by a railway
company, but the platform was situated by the side of a railway line which ran
through the colliery premises owned by the workmen's employers, and was
accessible from the colliery premises only. It was not open to the public, and
its name did not appear in the company's time table. Employees of the colliery
used it under an arrangement between their employers and the company whereby
specified trains were stopped at the platform to take the men to and from their
homes at a reduced fare, which was deducted by the employers from the men's
wages. The men were free to go home by means of the main road which ran past
the colliery, but in practice every employee used the railway. The injured
workman claimed compensation. The House of Lords by a majority held that the
accident arose in the course of and out of the employment and the injured
workman was entitled to compensation. Lord Atkin posed the question thus :
"Is he doing something in discharge a duty (1) (1940) 3 All. E.R. 157,
163, 164, 166.
941 to his employer directly or indirectly
imposed upon him by his contract of service ?" and answered :
"........ the word "duty" in
the test has such a wide connotation that it gives little assistance as a
practical guide." He proceeded to state :
"Duty with the vague connotation given
to it above cannot be rejected, but it does not seem to point very clearly to
the desired goal.
There can be no doubt that the course of
employment cannot be limited to the time or place of the specific work which
the workman is employed to do. It does not necessarily end when the "'down
tools" signal is given, or when the actual workshop where he is working is
left. In other words, the employment may run on its course by its own momentum
beyond the actual stopping place." After considering the decisions on the
subject, the learned Lord concluded thus :
"When all the cases have been looked at
and considered, one is finally brought back to the words of the Act, "'the
course of the employment". The course of the employment begins when the
workman enters the employment, and it ceases when he leaves the employment, it
being his duty to do both." Lord Wright puts the same idea differently
thus, at 172 "In a case like the present, however, where a man was simply
using the usual and proper way provided for leaving the colliery, I do not see
the relevance of the idea of duty, except in the artificial sense that a man
owes his employers a duty to come to his work and to go 942 away when his work
is ended. I think that it is in some such sense that duty has been referred to
in certain of the cases of this nature." Lord Romer applied the following
tests to the facts of the case, at p. 175 :
"In all cases, therefore, where a
workman, on going to, or on leaving, his work, suffers an accident on the way,
the first question to be determined is whether the workman was at the place
where the accident occurred in virtue of his status as a workman or in virtue
of his status as a member of the public." He came to the conclusion that
the employee in that case, when the accident happened, was there only by virtue
of his status as an employee of the colliery. Lord Porter, dealing with the
test of duty, remarked thus, at p. 179 :
"In some cases, no doubt, it may be
helpful to consider whether the man owed a duty to his employers at the time of
the accident, and indeed. If duty be construed with sufficient width, it may be
a decisive test, but, so construed, to say that the man was doing his duty
means no more than that he was acting within the scope of his employment. The
man's work does not consist solely in the task which he is employed to perform.
It includes also matters incidental to that task. Times during which meals are
taken, moments during which the man is proceeding towards his work from one
portion of his employers' premises to another, and periods of rest may all be
included. Nor is his work necessarily confided to his employer's premises. The
man may be working elsewhere -e.g., in building a house, or in work on the
road, or in work at a dock, the 943 question is not, I think, whether the man
was on the employer's premises. It is rather whether he was within the sphere
or area of his employment." Adverting to the question of alternative
facilities, the learned Lord pointed out, "However, if it is in the course
of his employment, the fact that he might have chosen an alternative method
does not disentitle him to recover".
After equating the expression " part of
his duty" with "in the course of his employment", he proceeded
to observe :
"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 lie 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." But the learned Lord took care to state that he was not
considering cases in which "the necessities of the work compel the
employee to traverse the public streets or other public places." This
decision, while it did not discard the test of "duty", gave it a
wider meaning than that given by the earlier decisions. It was the duty of the
employee to go to the work spot and leave it and it would be his duty to leave
it by means of transit provided by the employer. The exigencies of the service,
the practice obtaining therein and the nature of the service would be the
guiding factors to ascertain the scope of the duty.
The Court of Appeal in Dunn v. A.G. Lockwood
& Co. (1), implied such a term of duty under the (1) (1947) 1 All. E.R.
446, 944 following circumstances. A workman, who lived at Whitstable was
employed to work at Margate. The terms of the employment were that the workman
might, though it was not obligatory, travel from Whitstable to Margate by the
7.40 a.m. train from Whitstable, which arrived at Margate at 8.15 a.m. and that
he was to be paid as from 8 a.m. While proceeding one morning from Whitstable
station by the most expeditious route to his work he slipped and injured
himself. The Court held that there was a contractual obligation imposed on the
workman by the concession to go to his work as quickly as possible after
arrival at Margate station; and that the accident, therefore, arose "out
of and, in the course of the employment" within the meaning of the
Workman's Compensation Act. Lord Oaksey L. J., said that the accident arose in
the course of the workman's employment, because at that time he was performing
a duty which he owed to his employer by virtue of his contract.
From the permission given to use the 7.40
a.m. train, although he was to be paid from 8 a.m., obligation was implied on
the part of the employee to proceed as quickly as possible to his work by the
most expeditious route after his arrival at Margate. This decision illustrates
the wider meaning given to the test "duty", though the result was
achieved by implying an obligation in the circumstances of the case. In Hill v.
Butterley Co. Ltd. (1), a workman while crossing her employers' premises on her
way to the office to "clock in" before starting work, slipped on an
icy slope and was injured. Though there was no public right of way, the
inhabitants of the neighboring village were using the part of the premises,
where the accident happened, without objection from the owners for reaching an
adjoining railway station. The Court held that the accident arose out of and in
the course of the employment. The fact that the premises were used as a path
way by the other members of the, public did not prevent (1) (1948) 1 All. D.R.
233.
945 the Court from holding that the employee
met with the accident in the course of her employment.
The Court of Appeal in Jenkins v. Elder
Dempster Lines Ltd. (1), once again construed the expression "arising out
of and in the course of employment". There, the ship in which the deceased
was employed moored against the harbour mole of Las Palmas. At the landward end
of the mole was a gateway where police were stationed for the purpose,
ostensibly, of keeping unauthorized persons off the mole, but all kinds of people
were allowed there and entry to it was practically unrestricted. Shortly after
the ship moored, the ceased and other members of the crew went ashore for a
short while. When they were returning to the ship, the policemen at the gate of
the mole asked them which was their ship and allowed them to enter the mole. In
the darkness, the deceassed fell over the side of the mole and was drowned. In
a claim by the widow against the employers for compensation under the Workmen's
Compensation Acts, her claim was not allowed. Sir Raymond Evershed, M.R., posed
the question thus : "Was the workman at the relevant time acting in the
scope of his employment ?" and answered " . . . . . . . . . . . . . .
. the explanation, it is true, which the cases have added will entitle him to
say that he was if his presence at the point where he met with the accident is
so related to his employment as to lead to the " conclusion that he was
acting within its scope.
This decision lays down a wider test, namely,
that there should be a nexus between the accident and the employment.
This Court has considered the scope of the
section in Saurashtra Salt Manufacturing Co. v. Bai Valu Raja (2), and accepted
the doctrine of "notional extension" of the employeer's premises in
(1) (1953) 2 All B.R. 1133.
(7) A.I.R. 1958 S.C. 881,882, 946 the context
of an accident to an employee. Imam J., delivering the judgment of the Court
laid down the law thus:
"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 repasses in going to and in
leaving the actual place 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." On the facts of that case, this Court held that
the accident did not take place in the course of the employment.
Under s. 3 (1) of the Act the injury must be
caused to the workman by an accident arising out of and in the course of his
employment. 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 947 extension of 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 uses 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. But none of the decisions cited at the
Bar deals with a transport service operating over a large area like Bombay.
They are, therefore, of little assistance, except in so far as they laid down
the principles of general application. Indeed.
some of the law Lords expressly excluded from
the scope of their discussion cases where the exigencies of work compel an
employee to traverse public streets and other public places. The problem that
now arises before us is a novel one and is not covered by authority.
At this stage to appreciate the scope of
"duty" of a bus driver in its wider sense, the relevant Standing
Rules of the B. E. S. T. Undertaking may be scrutinized. We are extracting only
the rules made in regard to permanent bus drivers material to the present
enquiry.
Rule 31. (a) All applications for
Bus............ Drivers' tests should be written and signed by the applicant
himself x x x x x x 948 (i) Bus Drivers:
(1) The applicant shall be not less than 20
years of age and not more than 40 years of age. Birth Certificates be produced
in doubtful cases.
x x x x x x (1) After recruiting, the
Undertaking's rules and regulations shall be explained to those men by the
Recruiting Clerk.
x x x x x x Rule 5. All permanent members of
the Traffic Outdoor Staff will be supplied with uniforms as per the chart
attached.
x x x x x x Rule 3. Calling time must be
marked in ink by the Starters on the time cards once a week in the case of
permanent men, and daily in the case of extra men.
Rule 9. (a) Duty Hours : 8 hours per day
for............ Bus Drivers..............
Rule 10. Duties Permanent :
(a) Men who arrive in time and who work the
duty, they are booked for, will be mar ked for 1 day's pay. If, however, the
hours of work exceed the duty hours as laid down in Rule 9 (a), the excess
hours will be entered as overtime, payable as shown in Rule 25.
(b) Men who do not arrive at their call or
miss their cars will drop to the bottom of Extra List for the day and are 949
not to be given work unless there is work actually available for them in which
case they will be marked as having come late and will only be paid for the
number of hours worked.
However, men given no work are to be marked
"Late-No-Work", and will receive no pay for the day.
(c) Any man who misses his car more than
three times in a month whether he gets work or not, will be reverted to Extra
List.
Rule 1. (e) All............ drivers (Buses.........
who are late on duty by more than one hour will be marked "'ABSENT".
Rule 12. (a) All exchange of duties requests
to be addressed to Traffic Assistant's in charge of Depots for their sanction.
Rule 19. (a) Four members of the Traffic
Outdoor Staff in uniform are permitted to travel standing on a double deck bus
irrespective of their designation, two on the lower deck and two on the upper
deck, On a single deck bus two members are only permitted.
(b) Traffic Staff in uniform shall not occupy
seats even on payment of fares.
Rule 39. (a) Men can be transferred from one
Depot to another only under the orders of a Senior Traffic Officer. This will
only be considered if the succeeding depot is short of staff.
The gist of the aforesaid rules may be stated
thus: A bus driver is recruited to the service of the B.E.S.T 950 Undertaking.
Before appointment the rules and regulations of the Undertaking are explained
to him and he enters into an agreement with the Undertaking on the basis of
those terms. He is allotted to one depot, but he may be transferred to another
depot. The working hours are fixed at 8 hours a day and he is under a duty to
appear punctually at the depot at the calling time. If he is late by more than
one hour he will be marked absent. If he does not appear at the calling time or
"misses his car", he will not be given any work for the day unless
there is actually work available for him. If he "misses his car" more
than three times in a month, he will be reverted to the extra list, i.e., the
list of employees other than permanent. He is given a uniform. He is permitted
to travel free of charge in a bus in the said uniform. So long as he is in the
uniform be can only travel in the bus standing and he cannot occupy a seat even
on payment of the prescribed fare, indicating thereby that he is travelling in
that bus only in his capacity as bus driver of the Undertaking. He can also be
transferred to different depots. It is manifest from the aforesaid rules that
the timings are of paramount importance in the day's work of a bus driver. If
he misses his car he will be punished. If he is late by more than one hour he
will be marked absent for the day; and if he is absent for 3 days in a month,
be will be taken out of the permanent list.
Presumably to enable him to keep up
punctuality and to discharge his onerous obligations, he is given the facility
in his capacity as a driver to travel in any bus belonging to the Undertakings.
Therefore, the right to travel in the bus in order to discharge his duties
punctually and efficiently is a condition of his service.
Bombay is a City of distances. The transport
service, practically covers the entire area of Greater Bombay.
Without the said right, it would be very 951
difficult for a driver to sign on and sign off at the depots at the scheduled
timings, for he has to traverse a long distance. But for this right, not only
punctuality and timings cannot be maintained, but his efficiency will also
suffer. D.W.I. a Traffic Inspector of B.E.S.T. Undertaking, says that
instructions are given to all the drivers and conductors that they can travel
in other buses. This supports the practice of the drivers using the buses for
their travel from home to the depot and vice versa. Having regard to the class
of employees, it would be futile to suggest that they could as well go by local
suburban trains or by walking. The former, they could not afford, and the
latter, having regard to the long distances involved, would not be practicable.
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. The entire Greater Bombay is the field or area of the
service and every bus is an integrated part of the service. The decisions relating
to accidents occurring to an employee in a factory or in premises belonging to
the employer providing ingress or egress to the factory are not of much
relevance to a case where an employee has to operate over a larger area in a
bus which is in itself an integrated part of a fleet of buses operating in the
entire area. Though the doctrine of reasonable or notional extension of
employment developed in the context of specific workshops, factories or
harbours, equally applies to such a bus service, the doctrine necessarily will
have to be adapted to meet its peculiar requirements. While in a case of a
factory, the premises of the employer which gives ingress or egress to the
factory 952 is a limited one, in the case of a city transport service, by analogy,
the entire fleet of buses forming the service would be the
"Premises". An illustration may make our point clear. Suppose, in
view of the long distances to be covered by the employees, the Corporation, as
a condition of service, provides a bus for collecting all the drivers from
their houses so that they may reach their depots in time and to take them back
after the day's work so that after the heavy work till about 7 p.m. they may
reach their homes without further strain on their health. Can it be said that
the said facility is not one given in the course of employment ? It can even be
said that it is the duty of the employees in the interest of the service to
utilize the said bus both for coming to the depot and going back to their
homes. If that be so, what difference would it make if the employer, instead of
providing a separate bus, throws open his entire fleet of buses for giving the
employees the said facility ? They are given that facility not as members of
the public but as employees; not as a grace but as of right because efficiency
of the service demands it. We would, therefore, hold that when a driver when
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.
We, therefore, agree with the High Court that
the accident occurred to Nanu Raman during the course of his employment and
therefore his wife is entitled to compensation. No attempt was made to question
the correctness of the quantum of compensation fixed by the High Court.
Before leaving the case we must express our
thanks to Mr. Ganapati Iyer for helping us as amicus curiae.
In the result, the appeal fails and in the
circumstances is dismissed without costs.
953 RAGHUBAR DAYAL J. I am of opinion that
this appeal should be allowed.
The deceased, Nanu Raman was a bus driver of
the appellant Corporation. On July 20, 1957, he met with an accident after he
bad finished his duty for the day. The duty finished at about 7.41 p. m. at
Jogeshwari Bus Depot.
He then boarded another but in order to go to
his house and the bus met with an accident and, as a result of the injuries
received in that accident, he died. The question is whether those injuries were
caused to him out of and in the course of his employment. If the injuries so
arose, the appellant Corporation would be liable to pay the compensation. If
they did not so arise, the appellant Corporation will not be bound to pay
compensation in pursuance of the provisions of s. 3 of the Workmen's Compensation
Act,, 1923 (Act VIII of 1923).
It is clear that the deceased was off duty
when he received the injuries. He had finished his duty for the day.. He had
left the bus on which he was posted that day.
He had not only left that bus, but had
boarded the other bus as a passenger. In view of r. 19 of the Standing Rules of
the Traffic Department of the B.E.S.T. Undertaking, he was allowed to travel as
he was in uniform. The question is whether this concession was by way of a term
of his service and a part of the contract of service. I am of opinion that it
was not a part of the contract of service or a condition of his service. Rule
19 is not with respect to the bus drivers or with respect to 'the traffic staff
of the Corporation alone. The rule does not permit any number of the employees
of the traffic staff to travel by a bus free.
The rule deals with the persons who are
allowed the concession of free travelling on buses. The rule reads :
Free Travelling on Buses "(a) Four
members of the. Traffic Outdoor 954 Staff in uniform are permitted to travel
standing on a double deck bus irrespective of their designation, two on the
lower deck and two on the upper deck. On a single deck bus two members are only
permitted.
(b) Traffic Staff in uniform shall not occupy
seats even on payment of fares.
(c) Municipal Councillors and non Councillors,
Members of the Schools Committee holding Tram-cum-Bus passes must occupy a
seat. They are not permitted to travel by standing or in excess.
(d) One police officer above the rank of a
jamadar is allowed to travel free by standing.
All other ranks must occupy seats and pay
their fares.
(e) Meter Readers and Bill Collectors of the
Consumers' Department and Public Lighters of the Public Lighting Department are
permitted to travel in buses outside the Tramway Areas when on Duty either in
uniform or on production of the Undertaking's badge by payment of Undertaking's
tokens. These tokens stamped "Service' will be accepted in lieu of cash
and ticket issued.
(f) Traffic Officers and only those Officers
holding a bus-cum-Tram Pass and Silver Badge and Bombay Motor Vehicle
Inspectors holding passes are permitted to travel standing and may board the
bus outside the Queue Order." Clauses (c) to (e) allow the concession of
free traveling to persons other than the traffic staff. The rule cannot be a
term of contract with these persons. It 955 is just a privilege and a
concession allowed to those persons. The privilege is restricted in certain
respects.
Clauses (a), (b) and (f) deal with concessions
allowed to the members of the traffic staff. It appears from cl.
(a) that the number of traffic outdoor staff
which can travel by a bus is limited to 4 on double decker buses and to 2 on a
single decker. They have to be in uniform. Even if they purchase tickets on
payment of fares they cannot occupy seats if they happen to be in uniform. If
this concession of free travelling had anything to do with the condition of
service in order to ensure punctuality and efficiency on the part of bus
drivers keeping in consideration the possibility of their travelling long
distance to and from their houses, in order to return from duty or to join duty
there should not have been any limitation on the number of such staff
travelling by a particular bus. It can be possible that more than two or four
members of the traffic outdoor staff may be residing in neighbouring localities
and may have to join duty or to return to duty at about the same time. Further,
it would have been more conducive for the efficient discharge of their duty if
at least on their way to join duty they were allowed to have a seat on the bus
in preference to travelling standing. There could have been no justification
for not allowing them to occupy a seat on payment of fare. This is not allowed.
These considerations indicate to my mind that
this rule allowing the members of the traffic out-door staff to travel free,
but under certain limitations, On the buses, was not connected with their
service conditions or with the question of their observing punctuality and
discharging their duties efficiently, but was merely a concession from the
employer to their employees. Such a conclusion is further strengthened when the
rule does not provide that this concession is available to the staff only when
they are travelling from their houses to join duty or when 956 they are
returning home after finishing their duty. They can take advantage of this
privilege whenever they have to travel by a bus. They have to simply put on
uniform at that time. The availability of the concession on their being in
uniform is not on account of their being supposed to be on duty, on the way to
or from their houses but on account of the fact that the wearing of uniform
would be an indication and the guarantee of their being members of the traffic
outdoor staff.
I therefore do not construe r. 19 as a
condition of service of the bus-drivers of the Corporation and therefore do not
construe it to artificially extend the period of their duty and consequently
the course of employment by the time occupied in travelling by the bus if the
bus driver, after discharging his duty or on his way to join duty happens to
travel by bus.
The bus driver is not bound to travel by bus.
He is not bound to put on his uniform when travelling by such bus. If he does
not want to have the concession and prefers to travel comfortably by paying the
necessary fare to occupy a seat, be can do so by simply taking off his uniform
and then boarding the bus There is nothing in the circumstances of the bus
driver's service, as shown to us, which should induce me to hold that be had to
travel perforce by the bus on his way to join duty or on his return journey
after discharging his duty. Bombay may be a city of distances, but every bus
driver need not be residing far from the place where he bad to join duty or to
leave his duty. There is nothing on the record to indicate that the salaries of
these bus drivers are such as would make it impossible for them to spend on the
railway tickets if they wish to travel by train or on the bus sitting if they
want to travel in comfort by purchasing tickets. It is not therefore a case
that out of necessity the persons had to 957 travel by the buses of the
Corporation and therefore it is not a case for notionally extending the territorial
area of the premises within which they had to discharge their duty.
It is true that the bus service of the
Corporation extends over the entire city of Bombay but that does not mean that
the area of duty of a bus driver also becomes as extensive as the area
controlled by the buses of the Corporation. The notional extension of the
premises or the area within which the bus driver works can at best be extended
to the bus which he is given to run during his duty hours. The premises of the
bus driver can be deemed to include the bus' and the responsibility of the
employer can be reasonably extended for injuries to bus drivers up to the bus
driver's boarding the bus for discharging his duty and up to his leaving the
bus after discharging his duty.
Before his boarding the bus, the bus driver
is not on actual duty. He is not on duty subsequent to his leaving the bus
after the expiry of his duty hours. In this view of the matter, the moment the
deceased left the bus at the jogeshwari Bus Depot after finishing his duty at
7.41 p. m., he was off duty. He was their free to travel as he liked, for the
purpose of returning home. The employers had no control over him except in so
far as he would not be permitted to travel in uniform in the bus if there be
already the permissible number of traffic staff in uniform on the bus. This
control is exercised over him not because he was the bus driver of the
Corporation, but because he wanted to travel in uniform against the provisions
of r. 19.
The deceased had no duty connected with his
employment as bus driver towards the Corporation after he had left his bus and
boarded the other bus for going to his residence.
In these circumstances' it not possible to
say that the deceased was on duty when he was travelling by the other bus and
met with the accident and 958 that the accident arose out of and in the
exercise of his employment.
In S. S. Manufacturing Co. v. Bai Valu Raja
(1), this Court laid down the following propositions in connection with the
construction of the expression 'in the course of employment'. They are : (i) 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; (ii) as a rule the journey to and from the place of employment is
not included within the expression 'in the course of employment (iii) the
aforesaid two positions are subject to the theory of notional extension of the
employers' premises so as to include the area which the workman passes and re-passes
in going to and in leaving the actual place 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
employers' premises; (iv) the facts and circumstances Of each case will have to
be examined very carefully in order to determine whether the accident arose
within and in the course of employment or a workman keeping in view at all
times the theory of notional extention.
On the basis of the first two propositions,
the deceased cannot be said to have received the injuries in an accident
arising out of and in the course of his employment. The third proposition does
not cover the present case as I have indicated above. The expression 'an area
which the workman passes and re-passes in going to and in leaving the actual
place of work, in proposition 3, does not, in view of what is said in
proposition No. 2, mean the route covered necessarily in his trip from his
house to the place of employment or on his way back from the place of
employment to the house. This expression means such areas which the employee
had to pass as (1) A.I.R. 1958 S.C. 881.
959 a matter of necessity and only in his
capacity as employee.
Such areas would be areas lying between the
place of employment and the public place or the public road up to which any
member of the public can reach or use at any time he likes. Such areas then
would be areas which the employees had, as a matter of necessity, to pass and
re-pass on his way to and from the place of employment, and will either be
areas belonging to the employer or areas belonging to third person from whom
the employer had obtained permission for the use of that area by his employees.
The passing and re-passing over such areas is a matter of necessity as it is
presumed, in this context, that without passing over such land or such area,
the employee could not have reached the place of his employment. It is in that
context that the area of the place of employment is extended to include such
areas over which the employee had, as a matter of necessity, to pass and
re-pass.
After discussing the facts of the particular
case in the light of the general propositions noted above this court said at p.
883 :
"It is well settled that when a workman
is 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 view I
have expressed above is consistent with these observations.
960 I may just note that the expression
'unless the very nature of his employment makes it necessary for him to be
there' in the above observation, contemplates employments or duties of his
employee necessitating the employee's using the public road or public place or
a public transport in the discharge of his duty. One such case is the one
reported as Dennis v. A. J. White & Company (1).
Reference may be made to the cases reported
as St. Helens Colliery Co. v. Hewitson (2 ) and Weaver v. Tradegar Iron &
Coal. Co. Ltd. (3). In the former case a colliery worker was travelling by the
special train run by the railway company under contract with the employer for
the convenience of the workman to and from the colliery and the place of
residence of the worker. He met with an accident while so travelling. The
question was whether he was entitled to compensation from his employer. It was
held by the House of Lords that it was an inseparable part of the contract of
employment that the employee had obtained a pass enabling him to travel and
that he released his rights to compensation in the case of accidents against the
railway company. Still it was Considered that this was not sufficient to
determine his right to compensation. The facts of the present case are
different and do not justify the conclusion that it was a term of the contract
of employment of the deceased by the appellant that he would be allowed to
travel free by the buses of the Corporation. He is not granted any such
privilege of free travel. He had to do nothing in return for such a privilege.
The employee in the aforesaid case had released his rights against the railway
company, The deceased in the present case did not release any of his rights
against the Corporation. Any way, the House of Lords held that the employee was
not entitled to any Compensation. Lord Buckmaster said at p. 66 :
"The real question to my mind is
whether, when he entered the train in the morning, it (1) [1917] A. C. 479.
(2) [1924] A.C. 59.
(3) 1940 3 All. R.R.
961 was in the course of his employment
within the meaning of the Act. I find it difficult to fix the test by which this
question can be answered in favour of the respondent." A similar question
can be put in the instant case. It will be difficult to say that the deceased
entered the bus which met with the accident in the course of his employment.
Lord Buckmaster further observed at p. 67
"The workman was under no control in the present case, nor bound in any
way either to use the train or, when he left to obey directions; though he was
where he was in consequence of his employment, I do not think it was in its course
that the accident occurred." It can be similarly said with respect to the
deceased that he was under no control of his employer when he was on the bus
and that he was not bound in any way to use the bus or to obey the directions
of his employer after he had left the bus on which he was deputed for the day.
In the Weaver Case(1) the employee was held
entitled to compensation. The distinction in the facts of the two cases is well
indicated by Lord Romer in his speech at page 176 :"My Lords, upon this
principle, it would seem reasonably plain that the appellant in the present
case was entitled to compensation which he seeks. After finishing his work at
the colliery, he proposed returning to his home by train. In order to get to
the train, he passed directly from the colliery premises on to a platform,
which was the only means of access from the colliery to the train, and upon
which he had no right to be except by virtue of his (1) (1940) 3 All. E. R.
157.
962 status as an employee of the colliery.
While on the platform, and by reason of his being on the platform, he met with
an accident. In my opinion, it was an accident arising out of and in the course
of his employment . The country court judge and the Court of Appeal, however,
considered that they were precluded from giving the appellant relief by the
decisions of your Lordships' House in St. Helens Colliery Co., Ltd. v.
Hewitson(1) and Newton v. Guest, Keen & Nettlefolds, Ltd. (2). My Lords, if
I am to accept the conclusion that the effect of these two decisions is to
deprive the appellant in the present case of any right to compensation under
the Act, I must, as it seems to me, necessarily suppose that they lay down a
principle inconsistent with the principle which had already been established by
your Lordships' House in Longhurst's Case(3) and accepted in M'Robb's case(4)
and has since been affirmed and applied in Mccullum's case(5). As this is an
altogether impossible supposition, it is necessary to ascertain what really
were the grounds of the decisions in Hewitson's Case(1) and Newton's case (2).
I need state in detail the facts in Hewitson's case (1). It is sufficient to
say that, if, in the present case, an accident to the appellant had occurred
while he was actually in t he train travelling towards his home, the case would
have been in all material circumstances comparable to HeWitson's case(1). The
two cases would have been indistinguishable. The workman in Hewitson's case (1)
however, failed., upon the ground that he was under no contractual obligation
to his employer to be in train. All their Lordships who were responsible for
the decision were at pains to ascertain whether or not Hewitson was under any
such obligation. It would seem to follow from this that they did not regard
Hewitson (1) [1924] A C. 58.
(2)(1926) 135 L.T. 386.
(3) [1917] A.C, 249.
(4) [1918] A.C. 304.
(5) (1932) 147.L.T. 316, 963 when in the
train as being engaged upon one of those acts which are always considered as
being part of a workman's employment because they are incidental to the
employment proper.
They must have regarded him, in other words,
as a workman who had left the scene of his labour and "the means of access
thereto" within the meaning attributed to those words in the cases to
which I have previously referred, for, when a workman is engaged in performing
an act which is merely incidental to his employment proper, it is hardly, if
ever, true to say that he is under a contractual obligation to his employer to
perform it." In view of what I have stated above I hold that Nanu Raman
did not die of the injuries received in an accident arising out of and in the
course of his employment and that therefore the respondent is not entitled to
receive any compensation from the appellant under s. 3 of the Workman's
Compensation Act 1923. Therefore I would allow the appeal with costs and set
aside the order of the court below.
By COURT : Following the opinion of the
majority, the appeal is dismissed but in the circumstances without costs.
Appeal dismissed.
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