- Chandulal is working in a textile factory. His duty is to carry cotton bales to the weighing machine. One day his other colleague was absent and Chandulal was asked to carry an extra load and had to work overtime. After finishing his work on that day, he left the factory for home. He had tea and snacks in the evening and watched TV for some time and then complained of chest pain. He was taken to the hospital where he died of a heart attack. His dependents claimed compensation/dependant’s benefits under ESI Act on the ground that the heart attack was caused by strenuous work but the ESI Corporation rejected their claim on the ground that the employee already had a heart condition and a heart attack was not due to any strenuous work. This contention arose because the compensation or the relevant benefit is admissible under the Act only if the injury is an ’employment injury’.
- So what is an ’employment injury’? Sec.2 (8) of the ESI Act defines an employment injury as a personal injury to an employee caused by an accident or occupational disease arising out of and in the course of insurable employment whether the accident occurs or the occupational disease is caused within or outside the territorial limits of India.
- A close reading of the definition reveals that every injury cannot become an employment injury unless it is caused by an accident or the occupational disease arising out of and in the course of employment. While Schedule III to the ESI Act enumerates occupational diseases, it did not define what an ‘accident’ is. However, we are helped by various judgments such as Chandramati V. ESIC 2003 III LLJ 202 to understand ‘accident’ as a mishap or untoward event not expected or designed. Similarly, the Act also did not define the scope of the expression ‘arising out of and in the course of employment’. It left it to the courts to define the scope. Consequently, this expression became a field of confusion and conflict between the claimants and the Corporation/employers.
- At this juncture, we may note that the language of the expression ’employment injury’ under the ESI Act is pari materia with that under Sec.3(1) of the Employees’ Compensation Act, 1923 and therefore it is worthwhile to refer to cases decided under the Employees’ Compensation Act to get an understanding of the scope of the expression ‘arising out of and in the course of employment’.
- The Hon’ble Bombay High Court in the case of Trustees, Port of Bombay Vs. Yamuna Bai AIR 1952, page 382 explained the expression ‘in the course of employment’ as one referring to a point of time which means the currency of employment and that is to say the accident causing the personal injury must occur during the currency of employment.
- The Court observed that the expression ‘arising out of employment’ suggests both time and place of employment. The expression ‘out of’ conveys the idea that there must be some sort of connection between the employment and injury caused by the accident. However, the Court says that this is the literal and strict interpretation but the words’ arising out of employment’ are wide enough to cover a case where there may not be necessarily a direct connection between the injury to the employee, the accident, and the employment. It is enough if the circumstance (the hazard) is attending the employment to be one arising out of employment.
- Thus the explosion of the bomb near the table of the employee where he was sitting in the workshop in a dock, though placed by someone as a result of which he received injuries, was held to be an accident arising out of employment. It means the expression ‘arising out of employment connotes a causal connection between the accident, injury, and employment. Thereafter the Apex Court in the case of Saurashtra Salt Mfg.Co v. Bai Valu Raja 1958 II LLJ 249 observed that as a rule, the employment of a workman does not commence until he has reached the place of work and does not continue after he left the place of work. However the expression ‘arising out of and in the course of employment’ extends employers’ premises beyond the place of work to cover the area which the workman passes and re-passes in going to and leaving the place of work for home. Thus this case notionally extends the time and place of employment to cover the time and the area of commuting by a workman to and from his place of work if he travels through any mode not as a member of public but by the very nature of his employment.
- Accordingly, in the BEST undertaking, Bombay vs. Mrs. Agness 1963 II LLJ 615, the accident which caused the death of a bus driver who was availing the free transport provided by his employer for traveling to his home, was held to be an accident arising out of and in the course of employment.
- Thereafter, keeping in view the beneficial nature of the legislation and the principles of ‘causal connection’ and ‘notional extension’ defining the scope of the expression ‘arising out of and in the course of employment’ and to narrow down the area of conflict and confusion, sections 51 A to 51 D have been added to the ESI Act by way of amendment in 1966.Sec.51 B and 51 C explain the circumstances where accidents occurring in the course of employment (during the currency of employment) are also deemed to be accidents arising out of employment and Sec.51 D terms accidents happening to an employee while traveling in any vehicle but with express and implied permission of the employer as accidents happening to him while traveling by the transport provided by the employer and thus they are deemed to be accidents arising out of and in the course of employment.
- But in Regional Director ESIC vs. Francis D’Costa, 1996 II CLR 812, the employer-subsidized the travel of the employee from home to work place by bus but the bus stop was distant from his home and the employee had to travel by his cycle to the bus stop during which he met with an accident on the road and died. While the High Court termed the accident as incidental to his travel, such hazards being natural on the roads, the Supreme court negatived the order of the High Court holding that such accident could not be said to be an accident arising out of and in the course of employment within the purview of Sec.51C as the employee was not traveling as a passenger when the accident happened.
- Thereafter the Central Legislature passed an amendment in 2010 and added Sec.51 D which terms accidents happening to an employee while commuting to and from his home as accidents arising out of and in the course of employment, thus removing the restriction of travel by the employee as a passenger in a purported employer’s transport.
Mr. Shivam Jha
HR Ignite(Industrial Relation Advisor and professional)
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