Raj Bahadur Singh vs Union Of India And Others
2019 Latest Caselaw 5049 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  05.04.2019
 
Delivered on 27.05.2019
 
Court No. - 34
 

 
Case :- WRIT - A No. - 53145 of 2004 
 
Petitioner :- Raj Bahadur Singh
 
Respondent :- Union of India and others
 
Counsel for Petitioner :- Akhilesh Singh, Chandra Shekhar Kushwaha, Shivam Yadav
 
Counsel for Respondent :- S.S.C., Ashok Singh, K.C.Sinha
 

 
Hon'ble Sudhir Agarwal, J.

1. Heard Sri Saurabh Gupta, Advocate, holding brief of Sri Shivam Yadav, Advocate, for petitioner and Sri Ashok Singh, Advocate, for respondents.

2. This writ petition under Article 226 of Constitution has been filed by sole petitioner, Raj Bahadur Singh, being aggrieved by order dated 06.04.1999 passed by Commandant, 62 Battalion, Central Reserve Police Force, Ashiyana Lucknow (hereinafter referred to as "Disciplinary Authority") holding that petitioner met accident when proceeding on leave, therefore, cannot be said to have sustained injuries in discharge of duties and, therefore, is not entitled for medical reimbursement/damages/ compensation. Against the aforesaid order, petitioner preferred an appeal but the same has been dismissed by Deputy Inspector General of Police, Central Reserve Police Force, Rampur (hereinafter referred to as "Appellate Authority") by order dated 05.04.2004 and Revision preferred by petitioner has also been rejected by order dated 01.10.2004 passed by Inspector General, Central Reserve Police Force (hereinafter referred to as "Revisional Authority"). These appellate and revisional orders have also been challenged.

3. Facts, in brief, giving rise to present writ petition are that petitioner was enrolled as Constable in Central Reserve Police Force, (hereinafter referred to as "CRPF") on 18.11.1991. Initially he was posted at Lucknow wherefrom transferred to Rampur. To attend his ailing mother, he applied for leave from 14.12.1998 to 16.12.1998 but met an accident on 14.12.1998 at around 5.00 PM near his house and sustained serious injuries. He remained hospitalized and under medical treatment for a long time, i.e. upto 16.08.2001. He rejoined duties on 17.08.2001. On 23.11.2001 while going to his duty from his official residence by Bicycle, he fell down and sustained injuries on his right leg which was already damaged in the earlier accident. The second accident aggravated damage resulting in amputation of his right leg, in the Hospital, where he was admitted on 24.11.2001. Petitioner, therefore, was rendered medically disabled to discharge further duties. Thereupon he requested for compensation for disability but Disciplinary Authority by order dated 06.04.1999 rejected the same and petitioner's Appeal and Revision have also been rejected vide orders dated 05.04.2004 and dated 01.10.2004, respectively.

4. A Counter Affidavit has been filed by respondents admitting that petitioner was working as Constable (General Duty) at 62 Battalion, CRPF, C/o 56 APO. He was sanctioned three days casual leave, i.e., 14th, 15th and 16th December, 1998 with the permission to avail 13th December 1998 being Sunday. On 14.12.1998 while riding a Scooter and going to his hometown at Hardoi, petitioner met an accident with a three-wheeler causing fracture in his right leg. He immediately reported to Unit Headquarter, Lucknow on 15.12.1998 wherefrom he was referred to Balrampur Hospital, Lucknow for further treatment. Commandant of concerned Battalion directed to find out the circumstances in which petitioner had sustained injuries. He passed order on 06.04.1999 holding that petitioner sustained injuries not on duty but while on leave and, therefore, is not entitled for any benefit from Department. Reliance is placed on Rule 3-A(1) of Central Civil Services (Extraordinary Pension) Rules, 1939 (hereinafter referred to as "Rules, 1939") read with Government of India's Decision No. 1 in Central Civil Service (Pension) Rules, 1972 (hereinafter referred to as "Pension Rules, 1972") that no disability pension will be payable to a person if disability occurs other than on Government duty. It is however admitted that petitioner remained under treatment with effect from 15.12.1998 and onwards and he was transferred on 15.07.2001 to Rampur. Further averments of petitioner that he met an accident on 24.11.2001 has been denied and it is said that this story has been concocted to claim disability benefit to which petitioner is not otherwise entitled under Rules. It is also said that petitioner never joined duties and performed any work after 15.12.1998. He remained under treatment from 15.12.1998 till he was transferred to Rampur. It is, however, not the case of respondents that petitioner did not join at Rampur and thus any disciplinary action was taken against him for disobeying order of transfer.

5. The entire issue raised in this matter regarding disability pension requires consideration of Rule 3-A read with Rule-6 of Rules, 1939. Both the Rules are reproduced as under:

"3-A. Disablement/Death.- (1) (a) Disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease which -

(i) is attributable to Government service, or

(ii) existed before or arose during Government service and has been and remains aggravated thereby.

(b) Death shall be accepted as due to Government service provided it is certified that it was due to or hastened by-

(i) a wound, injury or disease which was attributable to Government service, or

(ii) the aggravation by Government service of a wound, injury or disease which existed before or arose during Government service.

(2) There shall be a casual connection between-

(a) disablement and Government service; and

(b) death and Government service,

for attributability or aggravation to be conceded. Guidelines in this regard are given in the Appendix which shall be treated as part and parcel of these Rules."

"6. Cases where no award to be made.- (1) No award shall be made in respect of,-

(i) an injury sustained more than five years before the date of application; or

(ii) death which occurred more than seven years,-

(a) after the injury due to violence or accident was sustained; or

(b) after the Government servant was medically reported as unfit for duty on account of the disease of which he died."

6. A bare perusal of Rule 3-A shows that disablement shall be accepted as due to Government service provided it is certified that it is due to injury etc. which is attributable to Government Service and if there is any aggravation, for that purpose it is said that if injuries etc. existed before or during Government service and has been and remains aggravated thereby. Sub-Rule 2 also shows that there should be a casual connection between the disablement and Government Service.

7. In the present case, petitioner met an accident when he was granted leave and going to his Hometown from the place of his posting. "Whether an employee when returns to Home from his Office or place of posting, if meets and accident, can it be said to have occurred during the course of employment and in the present case can it be said that it has connection with Government duty" is the moot question to be answered.

8. In my view, it cannot be said that returning to Hometown from place of posting has no direct connection with the Government duty inasmuch, leave when granted to a Government servant is part of service condition and when Government servant is returning to his house from the place of posting, it is an incident of service having direct connection with the Government duty otherwise there would not have been any occasion for the Government Servant to undertake journey to return to his Hometown.

9. When an Government Servant is granted leave and he proceeds from his place of Posting to his residence, can it be said that as soon as he leaves the place of postings, he ceased to be a Government Servant and there is no connection with Government duty at all is also an issue which has to be examined in the light of spirit of Rules with which Rules, 1939 have been framed.

10. The aforesaid Rules are for the welfare of employees who sustain injuries, disease etc. during course of duty or when they are doing something which has any connection with the Government Duty.

11. 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, 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.

12. 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:

"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."

13. 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 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:

"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."

14. 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:

"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."

15. 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.

16. 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 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:

"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 cock-pit of the plane and his place of work would be the place wherever the plane flies. A light house workman, particularly in cases where light-house 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."

(emphasis added)

17. 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.

18. A passage from decision in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes (supra) was relied on by Madhya Pradesh High Court in Surajbai Vs. Cement Corporation of India Ltd. (supra), and it reads as under:

"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)

19. There is another decision in M. Mackenzie Vs. I.M. Issak, AIR 1970 SC 1906, where Court said:

"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."

20. 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, 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".

21. 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:

"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)

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

"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 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."

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

i. There was an accident;

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

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

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

"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."

25. 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. However, the phraseology used in Rules, 1939 is slightly different and it says that the reasons of injury etc. must be something which is attributable to service and there should be a casual connection between disablement and Government service. In my view, terminology of Rule 3-A is much wider and it does not talk of mere "in the course of employment" but anything which is attributable to service will be within the ambit of Rule 3-A to entitle Government servant for the benefit thereunder. Posting of a person like petitioner at any place throughout the Country is a condition of service. The posting would be at a place other than hometown of petitioner is also a part of condition of service and employer's necessity also. Various kinds of leave are also admissible to members of service to which petitioner belong and it is also a part of condition of service. Whenever a person is granted leave, it cannot be said that as soon as he is relieved at the place of posting or moves towards his hometown, process of journey would not be attributable to Government service inasmuch this journey is also being undertaken by the employee concerned which is directly attributable to his service inasmuch as a part of service conditions, he was posted at a place other than his hometown. Therefore, till the incumbent reaches his hometown on official leave, in my view, the entire process of journey will be part of official duty being attributable to Government service and has casual connection to such service.

26. Similarly, on expiry of leave or for joining the service, when the employee, like petitioner, commences his journey from his hometown to place of posting, it is again an act attributable to Government service and has a direct connection with service. Therefore, in the present case, Rules, 1939 cover a much wider scope and since the same are for welfare of employee, I find no reason to restrict its meaning for any reason, whatsoever.

27. Considering the issue in question in the light of exposition of law discussed above, it cannot be doubted, when applicant met accident on 14.12.1998, while going to his Hometown from his place of posting, the said accident has a direct connection with official duties and, therefore, injury are attributable to Government duty. Thereafter, petitioner was transferred on 15.07.2001 to Rampur from Lucknow. He met another accident on 23.11.2001 while going to his duty from his official residence by Bicycle. In my view this accident would also be said to have a connection with the Government duty and attributable to Government duty. The mere fact that first accident occurred when leave was granted, in my view, is nothing but a misconstruction of Rule 3-A of Rules, 1939 and is extremely hyper technical view which is contrary to interpretation of Rule as this Court has read above and also to the spirit of welfare legislation.

28. In view of discussions made hereinabove, in my view petitioner would be entitled for benefit under Rules, 1939 since disability is attributable to Government duty.

29. In the result, the writ petition is allowed. Impugned orders dated 06.04.1999, 05.04.2004 and 01.10.2004 are hereby set aside. Respondents are directed to compute benefit payable to petitioner under Rules, 1939 and pay the same within three months from the date of production of certified copy of this order.

Dt. 27.05.2019

PS