Report No. 62
3.26. Adoption of section 51B considered-Requirement of trade or business not favoured-Contained in section 51B.-
What has been stated in section 51B of the Employees' State Insurance Act can be stated in a more direct manner, by enacting that the fact that the rule or order in question was transgressed is immaterial. That is a matter of form.
3.27. One question of substance however still remains. Is it necessary to incorporate the requirement1 contained in section 51B that the act must have been done for the purpose of and in connection with the employer's trade or business? This requirement postulates two ingredients, first that the employer must have been carrying on a trade or business, and secondly that the act must have been done for the purposes of and in connection with the employer's trade or business. A trading employer can take the defence that the workman's Act transgressing his orders was not connected with the trade or business. A non-trading employer, though liable generally for an accident, can still take the defence that the workman has transgressed his orders.
1. Para. 3.20, supra.
3.28. In so far as this requirement postulates that the main object of the act which caused the accident was to further the employer's business,1 the requirement is objectionable because the proper enquiry should only be whether the act is within the scope of the employment. The second question, namely whether a non-trading employer should be brought within the proviso, is of policy. In some cases the statute does make a distinction between trading employers and others. The question whether, in this particular context, the distinction should be maintained is one of policy.
On the one hand, it can be argued that if a non-trading employer, say, a doctor who employs a radiologist, is to be made liable, even where the particular act of the workman has been forbidden by him, some hardship would be caused. On the other hand, it can be argued that a workman who transgresses a rule or instruction should, nevertheless be compensated under the Act so long as he dose not go beyond the sphere of employment. Having carefully considered the matter, we are of the view that the requirement of trade or business should not be adopted.
Contributory negligence should be no defence in cases otherwise falling under the Act. Social justice requires that the beneficial provision in section 51B of the Employees State Insurance Act should not be whittled down, and the absence of a connection with trade or business should be irrelevant. In fact section 3 of the Workmen's Compensation Act, though it is confined to breach of instructions regarding safety devices, is more liberal than section 51B of the Employees' State Insurance Act in this respect. As a result we recommend that section 51B should be adopted after omitting this requirement. Also we recommend that Parliament may consider the desirability of deleting clause (b) of section 51B of the Employees' State Insurance Act.
1. Borley v. Orhanden, (1925) 2 KB 325.