Dismissed

Union of India Thru. Secy. for Railways and Others v. Smt.Satyawati

Allahabad HC12 Dec 2019WRIA/64801/2012

Case brief

AI extract

What is this about?

This judgment dismissed the Union of India's writ petition challenging a Central Administrative Tribunal order. The court held that an employee was in the course of employment when met with an accident on railway tracks while travelling to join duty, thus entitling the family to ex-gratia payment.

What did the court decide?

Writ petition dismissed upholding the Tribunal order directing release of ex-gratia payment to the respondent.

Union of India Thru. Secy. for Railways… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 64801 of 2012

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Petitioner :- Union Of India through Secretary for Railways And

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Others

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Respondent :- Smt.Satyawati

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Counsel for Petitioner :- Sudhir Bharti, ,A.K.Gaur,Rajnish Kumar Rai,S.C.

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Counsel for Respondent :- S.C.,Bhaskar Bhadra,Birendra Singh, Rama Devi,Sanjeev Kumar Gaur,Sanjiv Kumar Pandey

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Hon'ble Sudhir Agarwal,J.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rajnish Kumar Rai, learned counsel for petitioners and Mr. Sanjeev Kumar, learned counsel for applicant-respondent.

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This writ petition under Article 226 of Constitution of India has been filed challenging judgement and order dated 3.7.2012, passed by Central Administrative Tribunal (hereinafter referred to as 'Tribunal') Allahabad Bench, Allahabad in Original Application (hereinafter referred to as 'O.A.') No. 704 of 2010 (Smt. Satyavati Vs. Union of India and Others), whereby Tribunal has allowed above mentioned O.A. and held that applicant-respondent is entitled to “ex-gratia” payment at the specified rate in terms of P.S. No. 11045.

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Perusal of record shows that Krishna Murari Lal Sharma, husband of applicant-respondent was working as Cabin Mate in District Bareilly. On 16.10.2007 while coming to join his duties, Krishna Murari Lal Sharma met with an accident on Railway Track as he was run over by a moving train at Dan Station. Consequently, Krishna Murari Lal Sharma died.

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Upon death of Krishna Murari Lal Sharma his dues like Death cum Retirement Gratuity i.e. Rs. 2,92,849/-, Leave Enacashment i.e. Rs. 1,18,440.00, Group Insurance i.e. Rs. 55627/-, and Family Pension Rs. 4200.00+ Relief were paid to applicant-respondent. Apart from above,

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compensation of Rs. 2,63,900/- was also paid. A communication to this effect was sent by office of Divisional Railway Manager, Northern Railway, Moradabad to District Magistrate cum Commissioner (WC Act). For ready reference letter dated 9.3.2009 is quoted herein under:

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“Sub: Compensation under WC Act, 1923 Late Sh. Krishna Murari Lal Sharma S/o Sh. Gaindan Lal Sharma. Ex. Cabin Master under TI (E)/BE who was run over And died by any Train between 20.24 to 20.41 Hrs. ” at DAN Station while performing his official duty on 16.10.2007.

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Late Sh. Krishan Murari Lal Sharma S/o Sh. Krishan Murari Lal Sharma Gaindan Lal Sharma. Ex. Cabin Master under TI (E)/BE who was run over and died by any Train between 20.24 to 20.41 Hrs. at DAN Station while performing his official duty on 16.10.2007

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A sum of Rs. 2,63,900-00 (Rs. Two Lacs sixty three thousand nine hundred only) has been sanctioned in his favour and payment may be arranged in favour of Smt. Satya Wati W/o Late Sh. Krishan Murari Lal Sharma Ex. Cabin Master under TI (E)/BE for arranging payment to you.

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It is requested that disbursement of Compensation may kindly be arrange to the legal receipt on form No. “A” showing deposit to compensation of accident is sent herewith in original receipt on form No. “B” as specified in workman Compensation Act may please be issued to the Sr. Divisional Finance Manager, Norther Railway, Moradabad.”

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Applicant-respondent also applied for payment of ex-gratia payment vide letter dated 20.10.2008. However, her claim for ex-gratia payment was refused vide letter dated 14.12.2009. The only reason assigned for refusing ex-gratia payment to applicant-respondent is that as per decision of Competent Authority, death of husband of applicant-respondent has not taken place during the ''course of employment; therefore, no ex-gratia payment is payable to applicant-respondent.

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Consequently, applicant-respondent filed above O.A. before Tribunal, assailing letter dated 14.12.2009 and further for a direction to respondents for releasing ex-gratia payment in her favour on account of death of her husband.

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Above mentioned O.A. was contested by Railways. Accordingly, a detailed counter affidavit was filed. Therein, Railways placed reliance upon P.S. No. 11945 and also the fact finding report dated 26.12.1997, pertaining to death of Krishna Murari Lal Sharma. It was thus pleaded that applicant-respondent is not entitled for ex-gratia payment. Jurisdiction of Tribunal to entertain O.A. was also raised as according to Railways such a claim could be filed before Railway Accidents claims Tribunal.

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Applicant-respondent filed a rejoinder affidavit denying stand of Railways and rejoined the averments made in O.A.

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Tribunal upon consideration of material on record, allowed O.A. and directed Railways to ensure release of ex-gratia payment to applicantrespondent. While allowing aforesaid O.A. , Tribunal concluded that from letter dated 9.3.2009, issued by Divisional Railway Manager, Moradabad, it is explicitly clear that Railways have conceded and accepted that husband of applicant-respondent Krishna Murari Lal Sharma died while performing his duty. Tribunal thus held that in view of aforesaid, it is not permissible for Railways to take a contradictory stand and dispute claim of applicant-respondent by submitting that husband of claimantrespondent did not die while performing his duty.

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Feeling aggrieved by judgement and order dated 3.7.2012, passed by Tribunal, Railways have now approached this Court by means of present writ petition.

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After having heard counsel for parties, we find that the only question up for consideration is “where an employee is coming to join his duty at Railway Station, meets with an accident on the track, will it amount to an accident occurring in the course of employment or not.”

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In Writ Petition No. 47802 of 2010 (Smt. Munni Devi Vs. State of U.P. & Ors.) decided on 11.08.2010, a learned Single Judge (Hon'ble Dilip Gupta, J.) while considering a similar welfare legislation,

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i.e., U.P. Police (Extraordinary Pension) Rules, 1961 (hereinafter referred to as "Rules, 1961") observed that such Rules should be liberally interpreted in such manner that it gives benefit to Police Officers/employees who are killed or die, while performing official duties and it should not be restricted to extra risk.

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Again in Civil Misc. Writ Petition No.55471 of 2009 (Smt. Suneeta Sharma Vs. State of U.P. & Ors.) decided on 19.04.2011, construing Rules, 1961, this Court said:

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"The provision is a welfare legislation made for the benefit of police officials who sustain fatal injuries or otherwise lost their life while discharging official duties."

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In the context of Labour employment, a question arose when an employee undergo a journey from work place to home, can be treated to be in employment. In Indian Rare Earths Ltd. Vs. A. Subaida Beevi and others, 1981 TAC 359 , Court considered the matter arising from Workmen's Compensation Act, 1923 (hereinafter referred to as "Act, 1923"). The workman was residing at about 7 or 8 kilometres away from his work place and for coming to the factory, he used to walk about 3 kilometres from his place of residence to take a bus, and leave him at about 2 kilometres away from the plant where again he used to go by using bicycle. On 1.4.1977, he started from his residence to his work place and when on the National Highway, on his way to work place, met an accident and sustained injuries, ultimately died on 2.4.1977. The question was whether this accident can be treated to be one which has arisen "out of and in the course of his employment". Court said that residence of workman was not on any bus route wherefore he cannot travel major portion of his way to his work-place by bus. Thus, it is a case where exigencies of his employment and circumstances obliged him and the company allowed him to ride a bicycle to reach the work-place. Otherwise, it was an implied condition on his employment that he may travel to his work-place from his residence and back home by a bicycle. Court thus said that when car dashed him on public road, he was there by

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virtue of his status as a workman working under the Industrial Employer and therefore, it was in the course of his employment. The Court further said:

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"It is by now well settled that the expression "in the course of employment" connotes not only actual work but also any other engagement natural and incidental thereto, including "the course of employment" reasonably extended both as regards work-hours and work-place applying the doctrine of notional extension as regards time and place , as laid down by the several decisions."

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Another decision is Director (T. & M.), D.N.K. Project Vs. Smt. D.Buchitalli, 1987 Lab.I.C. 1795 . The deceased employee while coming out of factory premises, attending to his duty in morning hours, fell down at the main gate and on being removed was declared dead. The question was, whether it is arising out of and in course of employment or not. Workman Commissioner took a decision against Employer that death has taken place out of and in the course of employment. Court agreeing with the above view, said as under:

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"In the present case, no doubt, the evidence is that the deceased had a heart disease earlier, but on the fateful day, as the evidence disclose, the deceased worked for four hours inside the factory premises and while he was coming out of the factory, he profusely sweated and by the time he was taken to the hospital, he was found dead. The stress and strain of the four hours of work the deceased had must be taken to be an accelerating factor in giving the final blow on account of which the deceased died."

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In Administrator, Municipal Council, Udaipur Vs. Uma Devi, 1984 (2) TAC 56 , workman died as a result of accident when he was going to join his duties in the mid-night. Court held that since workman was going to join his duties at the octroi out post of Municipal Council, it has to be held that it is an accident in the course of employment i.e. during course of his employment.

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Surajbai Vs. Cement Corporation of India Ltd. and another, 1991(1) T.A.C. 140 , was also a case where workman was going to join duties and met a fatal accident. The accident took place between the sump-pit and the office of Employer i.e. within the premises

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of the Undertaking of Industrial Unit. The road had been built by Cement Corporation of India Limited for use of its employees. Thus, as a matter of fact, Court found that accident took place within the premises of undertaking but before workman could reach his place of duty. Construing the provisions of Act, 1923, liberally, being a welfare legislation, Court said:

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"It was at one time thought that an accident arose out of and in the course of employment only if the workman was injured at the place of his employment. There is of course, no difficulty in accepting such an accident as an accident arising out of and in the course of employment. But this narrow interpretation has not been able to satisfy new challenges created by modern methods of working of industrial undertakings to determine the exact place of employment of a workman in the context t of modern industrial development, is in itself a difficult task. A pilot who is responsible for flying the air-craft is supposed to be working at the cockpit of the plane and his place of work would be the place wherever the plane flies. A light house workman, particularly in cases where lighthouse is situated in the middle of sea on some tiny island, is required to be taken to that island by some method before he can actually start working. An underground mine worker reports at the opening of the mine and travels underground to reach his actual place of work. These are the instances of modern industries and such instances can be multiplied. The Mines Act, 1952, provides that a workman joins his duty before he has reached the place of his actual work. Industrial Jurisprudence treats the air-craft pilot and a light-house worker as on duty even before he has actually started working. The modern management methods do not even require a work-man to work. Some of them are kept waiting to be available whenever there is work. These developments had made it wholly unnecessary to consider a workman on duty only when he reaches his place of work or starts working. For purposes of workmen's compensation the law has adopted what is known as "the principle of notional extension of employer's premises". If the place of accident by application of this doctrine can be said to be the place of duty of the workman concerned, the workman is held entitled to compensation even if he had not reached his actual place of work. "

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(emphasis added)

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Thereafter, relying on a decision of Supreme Court in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes, AIR 1964 SC 193 , Court held that accident in question was in the course of employment entitling the heirs of workman for compensation under the said Act.

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A passage from decision in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes (supra) was relied on by

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Madhya Pradesh High Court in Surajbai Vs. Cement Corporation of India Ltd. (supra) , and it reads as under:

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"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 at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used 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 strictly construed, the later decision 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 laws words expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to travel public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority." (emphasis added)

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There is another decision in M. Mackenzie Vs. I.M. Issak, AIR

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1970 SC 1906 , where Court said:

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"The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered". In other words, there must be a casual relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the one of special danger, the injury would be one which arises 'out of employment'. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act." (Emphasis added)

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In General Manager, Western Railway Vs. Chandrabai alias Narainibai, 1991 (2) T.A.C. 62, Madhya Pradesh High Court again, following decision in General Manager, B.E.S.T. Undertaking,

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Bombay Vs. Mrs. Agnes (supra), held that notional extension of employer's premises must be applied and therefore, if an employee has died while he was going to join his duty from his house due to an accident, it must be deemed that it was "in the course of his employment". 22. All the decisions are in the context of Act, 1923. However, we find that there is a three Judges' judgment in Regional Director, E.S.I. Corporation and another Vs. Francis De Costa and another, 1996 (6) SCC 1. Therein matter has been dealt with in detail on a reference made by a two Judges Bench to larger Bench. Court referred two decisions, one is the decision of Court of Appeal in England in Regina Vs. National Insurance Commissioner, Ex Parte, Michael, (1977) 2 All ER 420 and, another an earlier decision of itself in Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja, AIR 1958 SC 881 . The following passage from observation of Lord Denning in Regina (supra) was quoted with approval:

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"Take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something "reasonably incidental" to his employment. But if he has an accident on the way, it is well settled that it does not "arise out of and in the course of his employment". Even if his employer provides the transport, so that he is going to work as a passenger in his employer's vehicle (which is surely "reasonably incidental" to his employment), nevertheless, if he is injured in an accident, it does not arise out of and in the course of his employment. It needed a special "deeming" provision in a statute to make it "deemed" to arise out of and in the course of his employment." (Emphasis added)

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Similarly, following observation of Hon'ble S.Jafer Imam in Saurashtra Salt Manufacturing Co. (supra) was also quoted with approval:

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"It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course 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

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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. In the present case, even if it be assumed that the theory of notional extension extends upto point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment." (Emphasis added)

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Considering all the above authorities, Court in Regional Director, E.S.I. Corporation (supra) held that following factors have to be proved:

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i. There was an accident;

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ii. The accident had a casual connection with the employment; and

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iii. The accident must have been suffered in the course of employment.

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Court distinguished the decision in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes (supra) by observing:

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"It was held by Subba Rao and Mudholkar, JJ. (Raghubar Dayal, J. dissenting) that the bus driver was given facility by the management to travel in any bus belonging to the undertaking. It was given because efficiency of the service demanded it. Therefore, the right of the bus driver to travel in the bus was to discharge his duty punctually and efficiently. This was a condition of service and there was an obligation to travel in the said buses as a part of his duty. It was held that in the case of a factory, the premises of an employer was a limited one but in the case of a City Transport Service, the entire fleet of buses forming the service would be "premises". This decision in our view, does not come to the assistance of the employee's case. An employee of a Transport Undertaking was travelling in a vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the Court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked."

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(Emphasis added)

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The aforesaid decisions, which the Court has referred to and discussed, have considered a provision wherein the expression used was "in the course of employment" and the consensus is that the aforesaid expression would cover an incidental aspect also, if it is reasonably connected to the employment.

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In the present case, deceased employee was on railway track since he was Cabin Mate and when he came to track going towards his cabin to join duty, met accident and died. This was clearly in the course of employment. Hence we are of the considered opinion that Tribunal has rightly passed the impugned order, directing ex-gratia payment to respondent at the specified rate in terms of P.S. No. 11045.

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Consequently, writ petition lacks merit and is accordingly dismissed.

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Order Date :- 12.12.2019 Arshad

Union of India Thru. Secy. for Railways and Others v. Smt.Satyawati

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Union of India Thru. Secy. for Railways and Others v. Smt.Satyawati

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