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Full Case Details
K. SUBBA RAO, J
- Section 3(1) of the Act reads:
. (Majority) – 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
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
Raman 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 3500 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. The Commissioner
dismissed the application accepting the contention of the General Manager of the 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 3500 with costs. The General Manager of the
B.E.S.T. Undertaking has preferred the present appeal against the order of the High Court.
“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.”
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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 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 Iyer, 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 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 so as an incident
of his service. - In Cremins v. Guest, Keen and Nettlefolds. Ltd. [(1908) 1 KB 469], the court of
appeal had to deal with a similar problem, Cremins was a collier in the employment of the
company. He, alone with other employees, lived at Dowlais, six miles from the colliery. A
train composed of carriages belonging to the appellants, but drivin 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 free 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 Section 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. Cozens-Hardy M.R. gave his reason for so holding
thus “… I base may judgment on the implied term of the contract of service ….” Elaborating
the principle, he said:
“(I)t 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 fro without charge.”
Fletcher Moulton, L.J. in a concurrent judgment said much to the same effect thus:
“It appears to me that the workman 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.”
154
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. Hewltson [(1924) AC 59]
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
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 workman who desired to 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 Workman’s Compensation Act, 1906. Lord Buckmaster, after
citing the passage already extracted by us in Cremins case 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.”
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 control. 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.
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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 was 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 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. [(1937) AC
454, 462] 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:
“(W)hen 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, 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. [(1940) 3 All ER 157], the House of
Lords re-viewed 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
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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 timetable. 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 of a
duty to his employer directly or indirectly imposed upon him by his contract of service? and
answered:
“(T)he word ‘duty’ in the test has such a wide connotation that it gives little
assistance as a practical guide.” - The court of appeal in Dunn v. A.G. Lockwood and Co. [(1917) 1 All ER 146],
implied such a term of duty under the following circumstances. A workman, who lived at
Whitstable was employed to work at Margate. The term 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 8.15 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 Workmen’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. [(1948) 1 All ER 233], 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 neighbouring 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 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. [(1953) 2 All ER 1133],
once again construed the expression “arising out of and in the course of employment”. There,
157
the ship in which the deceased was employed 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 deceased
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 deceased 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:
“(T)he 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 [AIR 1958 SC 881, 882] and accepted
the doctrine of “notional extension” of the employer’s premises in 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 Section 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 extension as 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 this tools but
also when he used the means of access and egress to and from the place of employment. A
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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 insofar 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
(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 must be produced in doubtful cases.
. (a) All applications for Bus …. Drivers’ tests should be Written and signed by
the applicant himself.
(1) After recruiting, the Undertaking’s rules and regulations shall be explained to
those men by the Recruiting Clerk.
Rule 5.
All permanent members of the Traffic Outdoor Staff will be supplied with
uniforms as per the chart attached.
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
(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 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.
. Duties-Permanent.- (a) Men who arrive in time and who work the duty, they are
booked for, will be marked 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.
(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.
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 Assistants-incharge of Depots for their sanction.
Rule 19
(b) Traffic Staff in uniform shall not occupy seats even on payment of fares.
. (a) Four members of the Traffic Outdoor staff in uniform an 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.
159
Rule 39
The gist of the aforesaid rules may be stated thus: A bus driver is recruited to the service
of the B.E.S.T. 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 alloted 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 he 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 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, he 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 Undertaking. Therefore, the right to travel in the
bus in order to discharge his duties punctually and efficiently condition is a of his service.
. (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.”
- 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 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. DW 1 a Traffic Inspector of B.E.S.T. Undertaking, says that instructions are give
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 egrees 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
160
specific worshops, factories or harbours, equally applies to such a bus service, the doctrine
necessarily will have to be adopted to meet its peculiar requirements. While in a case of a
factory, the premises of the employer which gives ingress or egrees 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”. 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 cost.
RAGHUBAR DAYAL, J - The deceased, Nanu Raman was a bus driver of the appellant Corporation. On July 20,
1957, he met with an accident after he had finished his duty for the day. The duty finished at
about 7.41 p.m. at Jogeshwari Bus Depot. He then boarded another bus 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 Section 3 of the Workmen’s Compensation
Act, 1923.
. (Minority) – I am of opinion that this appeal should be allowed. - 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 Rule 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
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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 concessions of free travelling on buses. The rule reads:
“Free Travelling on Buses”.(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.
(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 Officer 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 travelling to persons other than the
traffic staff. The rule cannot be a term of contract with these persons. It is just a privilege
and a concession allowed to those persons. The privilege is restricted in certain respects. - Clauses (a), and (f) deal with concessions allowed to the members of the traffic staff.
It appears from clause (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 conductive
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 any 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
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concession is available to the staff only when they are travelling from their houses to join duty
or when 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 out-door staff. - I therefore do not construe Rule 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 to 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, he can do so by simply taking off
his uniform and then boarding bus. There is nothing in the circumstances of the bus driver’s
service, as shown to us, which should induce me to hold that he 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
had 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 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 Jogeshwari Bus Depot after
finishing his duty at 7.41 p.m., he was off duty. He was then free to travel as he liked, for the
purpose of returning home. The employers had no control over him except insofar 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 Rule 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.
163 - In these circumstances, it is not possible to say 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 exercise of his employment. - In S.S. Manufacturing Co. v. Bail Valu Raja [AIR 1958 SC 881], 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
propositions 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 the 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 of a workman keeping in view at all times the theory of
notional extension. - 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 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 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 repass on his way to and from the place of employment and will either be areas belonging to the
employer or areas belonging to third persons 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 repass. - 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
164
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. - 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, and Company [1917 AC 479]. - Reference may be made to the cases reported as Sir Helens Colliery Co. v. Aewitson,
[1924 AC 59] and Weaver v. Tredegar Iron and Coal., Ltd. [(1940) 3 All ER 157]. In the
former case a colliery worker was travelling by the special train ran 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 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 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 p. 176:
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“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 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
and Newton v. Guest, Keen and Nettlefolds. Ltd.[135 LT 386]. 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 case [(1917) AC
249] and accepted in M. Robb case [(1918) AC 304] and has since been affirmed and
applied in Mccullum case [147 LT 361]. As this is an altogether impossible supposition,
it is necessary to ascertain what really were the grounds of the decisions in Hewitson case
and Newton case. I need not state in detail the facts in Hewitson case. It is sufficient to
say that, if, in the present case, an accident to the appellant had occurred while he was
actually in the train travelling towards his home, the case would have been in all material
circumstances comparable to Hewitson case. The two cases would have been
indistinguishable. The workman in Hewitson case, 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 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
Section 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.
Following the opinion of the majority, the appeal is dismissed.
