Jharkhand High Court

Steel Authority Of India Ltd. ... vs Prafulla Devi on 3 February, 2023

                                       1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      M.A. No. 95 of 2016

Steel Authority of India Ltd. Bokaro Steel Plant, P.O. and P.S. B.S. City, District
Bokaro, through John Tapan Kongari, son of late P.L. Kongari, presently working as
Assistant General Manager (Law), Steel Authority of India, Bokaro Steel Plant, P.O.
and P.S. B.S. City, District-Bokaro.
                                     ........ Opposite Party /Appellant
                             Versus
Prafulla Devi, wife of Late Bhadru Mahto, resident of village Dantu, P.O. and P.S.
Kasmar, District-Bokaro............................ Claimant/Respondent

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                         ---------
For the Appellant         : Mr. Bibhash Sinha, Advocate
                            Mr. Ankit Vishal, Advocate
For the Respondents      : Mr. Nikhil Ranjan, Advocate
                           Mr. Jay Mohan Mishra, Advocate

18/Dated: 03/02/2023

Heard Mr. Bibhash Sinha assisted by Mr. Ankit Vishal, learned counsel for

the appellant and Mr. Nikhil Ranjan, assisted by Jay Mohan Mishra, learned counsel for

the respondents.

2. Aggrieved with judgment and award dated 09.09.2015 passed by

learned Presiding Officer, Labour Court-cum-Commissioner, Employees Compensation,

Bokaro, in E.C. Case No. 03/2010 whereby the learned commissioner has been

pleased to direct the appellant to pay compensation of Rs. 2,42,100/- along with

simple interest @ 12% per annum w.e.f. 01.12.2007 till the date of payment.

3. The claimant who is wife of Bhadru Mahto has filed the claim before

the Employees Commissioner, Bokaro on account of death of her husband. It is stated

that late Bhadru Mahto, the husband of the claimant met with an accident on

01.12.2007 at about 17: 15 A.M., while he has left the house to join the services of

the opposite parties about 7.00 A.M. It is further case that the deceased was travelling

in a scooter and has got head injuries for which U.D. Case No. 15/2007 was

registered. During the investigation of said U.D. Case, the police has collected

evidence that the deceased Bhadru Mahto has left the house for the purpose of

joining the services and, hence the said accident is arising out of and in course of

employment. The income of the deceased was shown as Rs. 9200/- per month and

therefore, the claimant has prayed for a compensation of Rs. 2,50,000/- along with

interest from the date of accident.

4. In the said case notice was issued and the opposite party who is

appellant herein who has appeared before the learned Commissioner and filed written

statement and on contest the said award has been passed.

5. This appeal was admitted on 08.06.2022 on following substantial

question of law " (i) Whether the respondent will get the benefit of Notional

extension of work place even if he does not reside in the official quarter ?

(ii). Whether the NJCS Agreement will have any effect on the

concept of notional extension of work place under the Workmen Compensation Act ?

6. Mr. Bibhash Sinha, learned counsel for the appellant assailed the

impugned award on the ground that learned commissioner has not appreciated the

spirit of notional Joint Committee Agreement for steel industry in right perspective.

He submits that the in view of that agreement person who is going to discharge the

duty with the company is entitled for accidental death of compensation subject to

condition put therein. He submits that circular has been framed in 1983 which was

brought before the Commissioner as Exhibit M5 and based on that argument

advanced on behalf of the appellant that the deceased was coming from Bhawanipur

side for discharging his duty which was not his official residence whereas the company

has allotted quarter No. 12 D to the deceased where he was not residing there and

based on that the argument was advanced before the learned commissioner that

was negated on the ground that in the NJCS Agreement of 1995 and 2010 there is no

clause of framing of rule at that level, which is erroneous. He further submits that

when quarter was allotted to the deceased he was not required to reside at

Bhawanipur side and in that view of the matter no "notional extension" with regard to

the work place is not coming to help the claimant. On these grounds Mr. Sinha

submits that there is perversity in the award and this court may interfere with the said

award and set aside the said award.

7. On the other hand, Mr. Nikhil Ranjan, learned counsel for the

respondents submits that admittedly the accident took place on 01.12.2007. The

circular is of 1983. The circular was based on the basis of NJCS Agreement dated

23.05.1984. He further submits that the learned tribunal has considered the NJCS

Agreement 1995 and 2010 and based on that rightly concluded that the rule framing

part is not there in that view of the matter Circular of 1983 based on NJCS

Agreement 1983 is not operative. He further submits that on that ground argument

of the learned counsel for the appellant is misconceived one. He further submits that

learned tribunal has considered this aspect of the matter that since the land of the

respondent was taken by the BSL so he was established by providing a plot at

Bhawanipur side that is why the deceased has constructed house therein and

thereafter he was going from that place. The quarter allotted by the company was

in dilapidated condition. He further submits that section 17 of the Employees'

Compensation Act, 1923 is a piece of socially beneficial legislation and there is

protection under section 17 of the Act. He further submits that the appeal may be

dismissed.

8. By way of reply, Mr. Bibhash Sinha, submits that so far as section 17 of the

Act is concerned that part of agreement of not applying the Employees, Compensation

Act which is not in the case in hand. He draws the attention of the Court to the NJCS

Agreement and submits that there is clearly mentioned that this will not debar

statutory provision of the Employees' Compensation Act and thus the argument of

learned counsel for the respondent is misconceived. He further submits that the

accident took place on 01.12.2007 and the NJCS Agreement came into existence on

01.01.2007 in that view of the matter the Commissioner has wrongly considered the

NJCS Agreement 1995 and 2010. He further submits that the appeal may be allowed.

9. In view of above submission of the learned counsel for the parties the

Court has gone through the material available on record including LCR and the

judgement of the learned commissioner and finds that admittedly, the accident took

place on 01.12.2007. It is not in dispute that deceased was employee of the appellant.

It is also not in dispute that he was going to work place from the Bhawanipur side. It is

also an admitted fact that the quarter No. 12D was allotted by the appellant to the

deceased. Several NJCS Agreement have been produced in course of argument by

the learned counsel for the appellant. NJCS Agreement are being entered into for

certain period and the subsequent NJCS Agreement take over and the earlier NJCS

Agreement are not looked into. Admittedly the accident took place on 01.12.2007 and

NJCS Agreement 01.01.2007 was there. It is also well settled that policy which is

operative at the time of any occurrence that will operate. In that view of the matter 8 th

NJCS was operative w.e.f 01.01.2007 and admittedly the appellant's case was being

governed by 8th NJCS in view of above and it is well settled proposition that policy

prevailing at the time of any occurrence operates. The said policy clause 3.5.6.1 A & D

speaks as under ..........

" (a)The benefits under the Workmen's Compensation Act will not be affected adversely on account of revision of wages by this settlement.

(d). Workmen's Compensation benefit will continue to be extended to injury cases causing death or permanent/temporary disdablement arising during journey from residence to place of work and back within one hour of the start or end of his duty hours provided that the accident takes place on the normal route of jorney to the place of work."

10. Looking into the said part of provision, it is crystal clear that benefits be

extended to the employees causing injury and death.

11. Further on perusal of NJCS, it is crystal clear that right of workman has not

been taken away by the said agreement and if statutory provision is there that is also

well settled that cannot be taken away by any agreement. Admittedly, the incident has

occurred. The employee has died. This is not in dispute that the deceased was going to

discharge his official duty however he was coming from Bhawanipur side in place of

quarter no. 12D allotted to him.

12. It has been considered by the learned Commissioner that 12 D quarter was in

deprecated condition and that is why the deceased was residing in Bhawanipur side.

The question remains that said quarter which was allowed is in a deprecated condition

how the deceased resides there, is required to be considered, that is why the

employee was not residing there. Thus based on that it can not be said that the finding

of the learned commissioner is erroneous.

13. The word "accident" has already been defined long ago in Fenton V. J.

Thorley and Co., (1903) A.C. 443 and it has been considered in the case of " Som

Dutt Builders Ltd. Vs. Phool Kumari, wife of late Manbirender Singh " 2004

(74) DRJ 626 wherein para 9 it has been held as under;

"9. What the word "accident" means was settled long ago in Fenton v. J. Thorley and Co., [1903] A.C. 443. After reviewing the case law, the title of the Workmen's

Compensation Act, 1897 and its preliminary sections, Lord Macnaghten concluded on page 448 of the Report that:

"... the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed." On page 453 of the Report, Lord Lindley said: "The word "accident" is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often use to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word "accident" is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events."

14. "Accident" during the course of employment in the workman compensation

Act was also subject matter in the case of "Mackinnon Machenzie and Co. (P) Ltd.

Vs. Ibrahim Mahmmed Issak" 1969 (2) SCC 607, para 5 is quoted hereunder:-

"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." 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 causal 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 zone 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. In Lancashire and Yorkshire Railway Co. v. Highley [(1917) AC 352] Lord Sumner laid down the following test for determining whether an accident "arose out of the employment":

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yes, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the workman was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury."

15. Notional extension was subject matter in the case of " Leela Bai and

Another V. Seema Chouhan and Another" (2019) 4 SCC 325 wherein para 7 the

Hon'ble Supreme Court has held as under:

"7. In the facts of the case, and the evidence available, it is evident that the deceased was present at the bus terminal and remained with the bus even after arrival from Indore not by choice, but by compulsion and necessity, because of the nature of his duties. The route timings of the bus required the deceased to be readily available with the bus so that the passenger service being provided by Respondent 1 remained efficient and was not affected. If the deceased would have gone home everyday after parking the bus and returned the next morning, the efficiency of the timing of the bus service facility to the travelling public would

definitely have been affected, dependant on the arrival of the deceased at the bus- stand from his house. Naturally that would bring an element of uncertainty in the departure schedule of the bus and efficiency of the service to the travelling public could be compromised. Adherence to schedule by the deceased would naturally enure to the benefit of Respondent 1 by enhancement of income because of timely service. It is not without reason that the deceased would not go home for weeks as deposed by the appellant. Merely because the deceased was coming down the roof of the bus after having his meal, cannot be considered in isolation and interpreted so myopically to hold that he was off duty and therefore would not be entitled to compensation."

16. In view of above submission and considering the judgement quoted

hereinabove it is well settled that theory of notional extension for 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.

17. In view of above reasons and analysis the law point is answered

accordingly. This appeal is dismissed. It has been informed by the learned counsel for

the respondents that awarded amount has already been received by the claimants.