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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The appeal has to succeed and is hereby allowed.

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

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