Madras High Court
N.Thulasidasan vs Madras Fertilizers Ltd on 18 February, 2021
W.P.No.8915 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 18.02.2021
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
W.P.No.8915 of 2010
N.Thulasidasan ... Petitioner
Vs.
1.Madras Fertilizers Ltd.,
Rep. by its Chairman & Managing Director,
Manali, Chennai - 600 068.
2.General Manager - HR and M&D,
Madras Fertilizers Ltd.,
Manali, Chennai - 600 068. ... Respondents
Prayer: Petition filed under Article 226 of Constitution of India praying for
issuance of a Writ of Mandamus directing the respondents herein to treat the
period of the petitioner's absence from 11.09.2009 to 04.11.2009 as
"industrial accident" as defined under Clause 3.1.0 of Policy 29 and grant
all the benefits, i.e., leave with pay and allowances for the entire treatment
period, as stated under clause 5.1.1 of the said Policy, within the time frame.
For Petitioner : K.M.Ramesh
For Respondents : Mr.B.Jayesh Dolia
For M/s.Aiyar & Dolia
1/33
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ORDER
The prayer sought herein is for a writ of mandamus directing the
respondents to treat the period of the petitioner's absence from 11.09.2009
to 04.11.2009 as "industrial accident" as defined under Clause 3.1.0 of
Policy 29 and grant all the benefits, i.e., leave with pay and allowances for
the entire treatment period, as stated under clause 5.1.1 of the said Policy,
within the time frame.
2.The necessary facts which are required to be noticed for the
disposal of this writ petition are as follows:
(i) According to the petitioner, he was working in the respondent
Organisation since April 1993 and ever since he joined in the respondent
Organisation, he had been taking leading part in the trade union activities.
At the time of filing this writ petition, the petitioner was working as Senior
Secretary in the respondent Company. Since August 2009, he was Treasurer
of Madras Fertilizers Staff Union, which was the only representative body
of all the non-supervisory staff employed in the respondent company for the
past 38 years. The said union was started in the year 1972 and was
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recognised by the respondent Management as sole collective bargaining
agent.
(ii) While so, it is the further case of the petitioner that, at one point
of time due to the alleged ill-will developed with the Management in view
of the termination of the then Chief Executive one S.Muralidharan, they
developed that ill-will against the members, office bearers of the union
called MFSU and therefore, they have taken hasty decision of de-
recognition of the said union and also encouraged rival union and its office
bearers to reign in terror among the non-supervisory staff in order to infuse
fear psychosis in the minds of the said staff to join their rival union.
(iii) With this background, according to the petitioner, on 11.09.2009
during the working time or duty time, he was summoned to come to the
working place (Maintenance Planning Section) of MFSU's Ex-Treasurer
one A.G.Joseph Victor, accordingly, the petitioner went there. When he
entered in the Section room, he noticed that a gang of 15 persons under the
leadership of one K.Jaya Shankar surrounded A.G.Joseph Victor and on
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seeing the petitioner, the gang turned on him shouting in high tone and in a
fit of anger raising their voice. During that time, it seems that, there had
been a wordy quarrel and therefore, out of such scuffle, the said Jaya
Shankar pulled the neck down of the petitioner and traded blows at the
backside of neck indiscriminately, result of which, he felt giddiness,
numbness of both upper limbs and fell down unconsciously and later on,
after taking first aid at the factory premises, he was admitted in a private
hospital viz., Sugam Hospital, Thiruvotriyur, Chennai, where, after
diagnosis it was found that, fracture of C3 and C5 cervical spine. With the
result, he had to undergo medical treatment for 55 days and in respect of the
said incident, the petitioner had given a complaint with the respondent
Management as well as Manali Police, where, the Police have registered a
case and the same is pending investigation. Thereafter, the petitioner had
given representation on various dates i.e., on 06.10.2009, 16.11.2009,
24.11.2009 and 15.03.2010 to the respondent Management to grant accident
leave as defined under Clause 3.1.0 of Policy 29 and to grant all benefits as
defined in Clause 5.1.1 of the said Policy 29. However, the respondent has
not taken any steps to pass orders on the plea raised by the petitioner,
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therefore, in order to get the said relief, the present writ petition has been
filed by the petitioner with the aforesaid prayer.
3.I have heard Mr.K.M.Ramesh, learned counsel appearing for the
petitioner, who would submit that, the accident that was taken place on
11.09.2009 is purely an industrial accident. Therefore, since the petitioner
had suffered injuries and he had to take medical treatment as an inpatient as
well as outpatient for 55 days, the said period of 55 days shall be treated as
duty period and in this regard, whatever the expenses he incurred for taking
the treatment should be reimbursed by the Management through the
Insurance Company in view of the Accident Benefits Policy in this regard.
4.In support of his claim, the learned counsel has relied upon certain
Clauses of the Accident Benefits Policy of the Management. The Clause
1.0.0 under the heading 'Scope' as well as Clause 3.1.0. under the heading
'Industrial Accident' and Clause 3.2.0 under the heading 'Non-Industrial
Accident', as has been explained, were relied upon by the learned counsel.
To have a ready reference, the relevant Clauses of the Policy are extracted
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herein.
"1.0.0. SCOPE
This Policy outlines MFL Policy on accident benefits
payable to its employees insured under 'GROUP PERSONAL
ACCIDENT INSURANCE' (GPAI) Policy in the event of
accidents to its employees.
3.0.0. DEFINITION
For the purpose of this Policy.
3.1.0 'Industrial Accident' means any bodily injury sustained
by an insured employee arising out of or in the course of his
employment while on duty.
3.2.0 'Non-Industrial Accident' means any bodily injury
sustained by an insured employee while on off-duty."
5.He also relied upon Clause 5.1.1 of the Policy which reads thus:
"5.1.1 ACCIDENT LEAVE
Duration of enforced absence, as certified by a qualified
registered medical practitioner, shall be treated as 'accident
leave' with pay. Accident leave shall be in addition to the leave
entitlement as per Company's Leave Policy (P-03) Salary for
the duration of such enforced absence shall be paid at the
same rate at which it was drawn by the employee before
proceeding on accident leave. In respect of employees covered
by the 'Workmen's Compensation Act', the accident leave
salary shall do in lieu of the half-monthly payments prescribed
in the said Act."
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6.By relying upon these Clauses in the Policy, the learned counsel for
the petitioner would contend that, the incident that was taken place on the
particular date was taken place during duty hours, therefore, it shall be
treated only as 'industrial accident' taken place in the course of employment
and out of employment and if such industrial accident is taken place with
the result, any employee like the petitioner is suffered or sustained bodily
injury, for which, he had taken medical treatment for 55 days, certainly the
said period of absence for taking treatment has to be treated only as 'duty
period' and accordingly, the medical expenses incurred by the employee for
taking such treatment both as an inpatient as well as outpatient shall be
reimbursed by the Management only through the Insurance Company, with
whom the Management already had a contract, pursuant to which, that
Accident Benefits Policy applicable to all the employees of the respondent
company, has been entered into.
7.In this context, the learned counsel appearing for the petitioner, in
order to establish that, the incident that took place the other day where the
petitioner sustained injury was really an industrial accident within the
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meaning of Clause 3.1.0 of the Accident Benefits Policy, wanted to rely
upon the following decisions.
(i) 1983 ACJ 286 (C.M.A.No.12 of 1981) [Superintending Engineer,
Parambikulam Vs. Aliar Project, Pollachi].
(ii) 1998 (3) LLJ 152 (C.M.A.No.841 of 1987) [Senior Divisional Personnel
Officer, Southern Railway, Trichy Vs. Smt.Kanagambul].
(iii) 1998 (2) CTC 1 : 1998 (3) LLN 299 (L.P.A.No.44 of 1997 (DB)) [The
Management of Pannimedu Estate, M/s. Tata Tea Ltd., Vs. Chandra].
8.By relying upon these three decisions, the learned counsel
appearing for the petitioner would contend that, the incident that taken place
on the particular day, where, the petitioner suffered injury, is only an
industrial accident, if the principle laid down in those decisions are applied,
therefore, for the said industrial accident, certainly the period where the
petitioner had taken medical treatment has to be treated as a duty period and
accordingly, the medical expenses incurred by the petitioner shall be
reimbursed by the Management through the Insurance Company.
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9.Per contra, Mr.Jayesh Dolia, learned counsel appearing for the
respondents Management has submitted that, no doubt the Management is
having the Accident Benefits Policy for the benefit of all the employees
including the petitioner, however, whether the petitioner is entitled to get
the relief, as sought for in this writ petition i.e., regularising the absence of
the petitioner from 11.09.2009 to 04.11.2009 because of the industrial
accident as defined in the Policy 29 and to pay the pay and allowances for
the entire treatment period, is a question, for which, the learned counsel for
the Management has also relied upon the Policy 29 where he also heavily
relied upon Clause 3.1.0. By relying upon the said Clause, he would submit
that, industrial accident should have taken place and by virtue of that, bodily
injury should have been sustained by any insured employee arising out of or
in the course of the employment while on duty.
10.Laying emphasis on these words, 'arising out of or in the course of
his employment while on duty', the learned counsel would submit that, on
the particular date, it is the case of the petitioner that, he was summoned by
a co-worker or employee or other office bearer of the employees union to a
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particular place, which is not supposed to be the work place earmarked for
the petitioner. The moment the employee i.e., the petitioner moves out of the
work place at duty time and has gone for settling the personal score not
connected with his duty or employment towards the Management and
during the said moment if any scuffle that taken place between the petitioner
and other employee or employees, out of which, if the petitioner allegedly
suffered any injury, that cannot be treated as an industrial accident. In other
words, the learned counsel would submit that, if the petitioner suffered with
any bodily injury only in the course of or out of employment while he was
on duty, then only it can be construed as industrial accident, for which, he
can be extended whatever benefits available under Policy 29. By making
this submissions, the learned counsel for the Management would further
contend that, if at all the said incident, where the petitioner sustained injury,
was related to the duty cast upon the petitioner, then that can be construed
as an industrial accident. However, the wordy altercation which resulted in
scuffle or physical attack between two individual or more during the
working time only to settle the personal score, then, it cannot be construed
as an industrial accident. The main intention of the Accident Benefits Policy
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as envisaged in Clause 1.0.0 under the heading 'Scope' is only for the
accident benefits payable to its employees insured under the Group Personal
Accident Insurance (GPAI) Policy in the event of accidents to its
employees. The words 'accidents to its employees' mentioned in the said
Clause under the heading 'Scope' is only industrial accident, for which, the
definition is given in Clause 3.1.0, as quoted above, therefore, what has
been taken place on the particular day out of which what injury sustained by
the petitioner, is not at all an industrial accident. Therefore, the very scope
of the Group Personal Accident Insurance Policy mainly relied upon the
petitioner cannot be made applicable to the petitioner insofar as the said
accident is concerned, therefore, absolutely the Management is not liable or
responsible to give any benefit as claimed in the writ petition.
11.In support of his contention, the learned counsel has relied upon
the following decisions.
(i) 1969 (2) SCC 607 [Mackinnon Machenzie and Co. (P) Ltd Vs. Ibrahim
Mahmmed Issak]
(ii) 2015 (4) Mh.L.J. 245 [Laxmanrao Vs. M.S.E. Distribution Co. Ltd.]
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(iii) (2000) 1 Gauhati Law Reports 571 [National Insurance Co. Ltd. Vs.
Sabita Gope & others]
12.By relying upon the proposition that has been given in those
decisions, the learned counsel for the Management would vehemently
contend that, the incident that has been taken place on 11.09.2009 can never
be considered as an industrial accident and if at all any accident that has
been taken place as claimed by the petitioner and by virtue of that, if he
sustained any bodily injuries that is nothing but sheer violence wherein the
petitioner had gone and voluntarily involved to settle his personal score.
Therefore, for such involvement in any violence within the factory premises
that too while he was in duty, in fact, for which he is liable to face the
disciplinary proceedings at the hands of the respondents, which the
respondent Management has not initiated in order to maintain the peace in
the premises of the factory, he cannot seek any relief under the Accident
Benefit Policy.
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13.Therefore, the learned counsel appearing for the respondent
Management would contend that, at no stretch of imagination, the said
incident taken place on 11.09.2009 can be treated as an industrial accident.
Therefore, the relief sought for by the petitioner cannot be granted in this
writ petition, accordingly, he seeks indulgence of this Court to dismiss this
writ petition.
14.I have considered the said rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
15.The issue raised in this writ petition, in the considered opinion of
this Court, is in very narrow compass.
16.There was an incident which was taken place on 11.09.2009 at the
respondent factory premises, where, the petitioner sustained bodily injury
and because of which, he had to take medical treatment both as an inpatient
and outpatient and with the result he had to be absent for duty for 55 days,
are all the facts which are uncontroverted.
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17.However, what is in controversy that, whether the incident taken
place on 11.09.2009 is an industrial accident or not. In this context, it is the
definite case of the petitioner, as projected by the learned counsel appearing
for the petitioner that, it is an industrial accident as admittedly on that date
the petitioner was on duty in the factory premises and the said incident also
had taken place within the factory premises where the petitioner sustained
bodily injury and he had to take treatment for 55 days with the result, he
could not join duty for 55 days.
18.Though both sides had heavily relied upon the Policy 29 by
relying upon certain Clauses mentioned therein, whether the Policy 29
would be helpful to the Management or to the petitioner employee is the
question to be answered.
19.The scope of the Policy, as quoted herein above, is to pay benefits
to the employees insured, in the event of accidents to its employees,
therefore, there is no ambiguity in the scope of the said Policy, as only the
word 'accidents' alone mentioned in the scope. However, that accident
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should be construed only as 'industrial accident' as that has been defined in
Clause 3.1.0. No doubt, industrial accident has been defined to state that,
any bodily injury sustained by an insured employee arising out of or in the
course of employment while on duty. Therefore, two ingredients are must.
Firstly, there must be a bodily injury sustained by an insured employee.
Secondly, such sustainment of bodily injury must have been taken place
only during the course of employment i.e., arising out of or in the course of
employment.
20.The very same Policy in Clause 3.2.0 has also stated what is 'Non-
industrial Accident', it says that bodily injury sustained by an insured
employee while on off-duty.
21.So the only criteria that has been emphasised by the makers of this
Policy which is being implemented by the respondent Management is that,
whether the accident was taken place and the bodily injury was sustained by
an insured employee while he was in duty or in off-duty. In this context, it is
the contention of the learned counsel for the respondents Management that,
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though he was on duty i.e. on duty day during day time, the petitioner had
not suffered any bodily injury while he was undertaking his duty, but he had
suffered such bodily injury because of the violence where two or more
persons involved, in that scuffle the petitioner sustained bodily injury and
that was also taken place outside the exact place where the petitioner was
expected to be present during duty time. Therefore, the said accident,
according to the respondent Management, was taken place during off-duty
of the petitioner.
22.However, the learned counsel for the petitioner by relying upon
the three Judgments referred to above on their behalf has contended that, the
circumstances that has been projected before this Court in this case with
regard to the incident taken place on 11.09.2009 in the factory premises of
the respondent Management can be fit in, in the definition given in the
Policy 29 to suggest that, the accident taken place is arising out of or in the
course of the employment only while on duty.
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23.In this context, the learned counsel has heavily relied upon a
decision of this Court reported in 1998 (3) LLJ 152 (cited supra), where, the
learned Judge having taken into account the earlier decisions reported in
(1975) 1 L.L.J. 398 [Smt. Satiya v. Sub-Divisional Officer, P.W.D.] and
AIR 1955 Bombay 105 [Bhagu Bank v. General Manager, Central Railway]
as well as (1983) 2 L.L.J. 326 [Superintending Engineer, Parambikulam-
Aliyar Project v. Andammal] has held as follows:
"7. The only question that has to be considered is
whether the injuries sustained by a workman by an unknown
person would amount to an accident arising out and in the
course of the employment. It has been decided in the decision
reported in Smt. Satiya v. Sub-Divisional Officer, P.W.D.
(1975)1 L.L.J. 398, that murder is an accident from the point
of view of the person who suffered from it and it is an
untoward event as defined in Section 3(1) of the Act.
Therefore, sustaining injury while on duty and meeting his
death subsequently has to be necessarily considered as an
accident arising out of and in the course of employment.
8. In the decision reported in Bhagu Bank v. General
Manager, Central Railway AIR 1955 Bombay 105. it has been
held as follows:
"Once the proximate connection between the accident and the
employment is established the applicant has discharged the
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burden and in this case the proximate connection between the
employment and the injury is the fact that the deceased was at
particular spot in the course of his employment and it was at
that spot that he was assaulted and done to death.
After the above observation, it was held by the Bombay High
Court that the applicant was entitled to compensation under
the Workmen's Compensation Act. It was held in the decision
reported in Superintending Engineer, Parambikulam-Aliyar
Project v. Andammal (1983)2 L.L.J. 326, as follows:
"the deceased had to be in the place where he was done to
death in the course of his employment for discharging duties.
By reason of his being in the particular place, he had to face
the peril and the accident resulted in his death was caused to
be by such peril. In such a situation there was a casual
connection between the accident and the employment".
When we consider these decisions referred by the Deputy
Commissioner of Labour in his order, we have to necessarily
hold that the husband of the applicant was in Sikkal railway
station on 8.5.1984 at about 1.30 a.m. when he was attacked
by an unknown person resulting in his death and therefore, the
applicant is entitled to compensation."
24.If we look at the said decision, it has been held therein that,
sustaining injury while on duty and meeting his death subsequently has to
be necessarily considered as an accident arising out of and in the course of
the employment. Taking clue from this proposition, the learned Judge in the
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said case has explained the position that, the deceased employee was in a
Railway Station on the particular day in the wee hours i.e., 1.30 a.m. while
he was returning to home after completing duty where he was attacked by
an unknown person resulting in his death. Therefore, that incident was
considered to be an industrial accident, therefore, the learned Judge has held
that the deceased, on his behalf, the widow of the deceased, was entitled to
get compensation.
25.It was argued by the learned counsel appearing for the respondent
Management that, this kind of proposition would be possible in Workmen
Compensation Proceedings, where, full-fledged trial would be taken place
under the provisions of the Workmen Compensation Act where the parties
would be able to examine their witnesses and produce evidences, where,
cross examination by the other side would be possible and therefore after
full-fledged trial what could be the decision taken by the Tribunal arising
out of the trial based on evidences cannot be compared with the summary
proceedings like this where the present relief sought for by the petitioner in
this writ petition where complicated question of facts cannot be gone into as
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it is a settled proposition that in writ proceedings complicated questions of
law would never be gone into.
26.Insofar as the said contention of the learned counsel for the
respondent Management, this Court feels that, this Court has not taken any
attempt to go into the correctness of the factual aspects projected by both
sides, instead this Court has taken only the legal proposition that has been
culled out by the earlier legal precedents. In the said case, which was quoted
herein above, the industrial employee was sustained murderous attack by an
unknown person while he was standing in a Railway station on the way to
home. Even that circumstances, the Court has come to the conclusion that,
where the said accident taken place resulting the death of the employee is an
industrial accident. Only that proposition this Court wanted to take into
account and not the factual matrix alone of any of these cases.
27.Moreover, the factual matrix, as stated or discussed herein above,
has not been in much controversy, because, on 11.09.2009 the incident
taken place, if not the industrial accident in the words of the learned counsel
appearing for the respondent, where, the petitioner employee sustained
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bodily injury which resulted him to be admitted as an inpatient in the
hospital and had taken treatment for longer period and he could not join
duty for 55 days. It is also an uncontroverted fact that on the particular day,
the petitioner was in duty and it was also in duty time. The only exception
that was taken by the learned counsel for the respondents is that, though he
was in duty and it was in duty time, he had not been there in the duty place
exactly and he had voluntarily gone to other place, of course in the same
factory premises where absolutely there has been no industrial purpose or
factory purposes and only to settle the personal score between the petitioner
and other co-employee or office bearer of the employees union and
therefore, that cannot be construed as 'industrial accident'. This kind of
interpretation though sought to be given by the learned counsel appearing
for the respondents, this Court is not impressed with the said view
expressed by the learned counsel.
28.That apart, the learned counsel for the petitioner has also relied
upon other two decisions i.e., 1983 ACJ 286, where, a similar case was
considered as to whether the accident or incident taken place was an
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industrial accident for the purpose of getting the benefits for the employee.
In the said decision, the learned Judge of this Court having taken note of the
earlier decisions in 1970-I L.L.J. 16 (M.Mackenzie Vs. I.M.Issak), 1977-
A.C.J. 430 (Naima Bibi Vs. Lodhne Colliery Co. Ltd.], 1969 A.C.J. 422
(S.C.) (M.Mackenzie Vs. I.M.Issak) and one of the earliest case in (1917)
A.C. 352 (Yorkshire Rly. Co. Vs. Highley) has held that, the injury sustained
by the deceased was connected with the work and there was necessary
nexus between the work and the injury resulting in the death. The learned
Judge has also further held that, it has also to be remembered that but for the
employment of the deceased he would not have been at the place where the
accident happened and casual and proximate connect between the accident
and the employment has also been established.
29.In the third judgment as relied upon by the learned counsel for the
petitioner i.e., 1998 2 CTC 1 (cited supra), a Division Bench of this Court
has held as follows:
"8.A careful consideration of the principles laid down in the
above noticed decisions of the Apex Court would go to show
that it is well settled, as Their Lordships themselves indicate,
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that the theory of notional extension of employee's premises
would take within it also the area which a workman passes and
repasses in going to and in leaving the actual place of work
and that a workman would be in the course of his employment,
if he reaches the place of work or the area which comes within
the theory of notional extension. So far as the case on hand is
concerned, as indicated earlier, the worker left her child in the
creche and was indisputably going for work near the Muster,
which it is absolutely necessary for her to pass through when
another co-worker under the same employer has committed the
act of assault and caused the injury. In our view, it is not the
reason or the cause for the assault that really matters, but the
place and the point of time when the incident occurred
resulting in the injury, and the proximity of the same to need
for her presence at the time alone that will be relevant. Since
the worker in this case was actually found to be near the
Muster to get her assigned to the place of work, when the
incident occurred the accident resulting in the injury must be
held to have occurred on account of the risk which is in the
course of the employment and it cannot be contended that
there is not even any casual relationship between the accident
and the employment to deny the benefits of the provisions of
the Act to the worker concerned. Consequently, we are of the
view that no exception could be taken to the order of the
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learned single Judge in conforming the award of compensation
of the Commissioner of Workmen's Compensation in the
present case. Therefore, we see no merit what so ever in the
appeal. The appeal fails and shall stand dismissed."
30.However, the learned counsel for the respondents has relied upon
the three judgments quoted above, where, he mainly relied upon 1969 (2)
SCC 607 (cited supra).
31.If we look at the decision of the Hon’ble Supreme Court, in para 6,
their Lordships have held as follows:
6.In the case of death caused by accident the burden of proof
rests upon the workman to prove that the accident arose out of
employment as well as in the course of employment. But this
does not mean that a workman who comes to court for relief
must necessarily prove it by direct evidence. Although the onus
of proving that the injury by accident arose both out of and in
the course of employment rests upon the applicant these
essentials may be inferred when the facts proved justify the
inference. On the one hand the Commissioner must not
surmise, conjecture or guess; on the other hand, he may draw
an inference from the proved facts so long as it is a legitimate
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inference. It is of course impossible to. lay down any rule as to
the degree of proof which is sufficient to justify an inference
being drawn, but the evidence must be such as would induce a
reasonable man to draw it. Lord Birkenhead L.C. in Lancaster
v. Blackwell Colliery Co. Ltd., [1918 WC Rep 345] observed:
"If the facts which are proved give rise to conflicting
inferences of equal degrees of probability so that the choice
between them is a mere matter of conjecture, then, of course,
the applicant fails to prove his case because it is plain that the
onus in these matters is upon the applicant. But where the
known facts are not equally consistent, where there is ground
for comparing and balancing probabilities as to their
respective value, and where a reasonable man might hold that
the more probable conclusion is that for which the applicant
contends, then the Arbitrator is justified in drawing an
inference in his favour."
32. Para 5 of the said decision, which was heavily relied upon by the
learned counsel, reads thus:
“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
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W.P.No.8915 of 2010
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 these factors the
workman is brought within the scene 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 yea, 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
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out of the employment. To ask if the cause of the 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."
33.He relied upon the words that has been used by the Hon’ble
Supreme Court in para 5, i.e. "To put it differently if the accident had
occurred on account of a risk which is an accident 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'. By relying
upon these words, the learned counsel appearing for the respondents lay
emphasis the words ‘unless of course the workman has exposed himself to
an added peril by his own imprudent act'. In other words, what the learned
counsel for the respondents wanted to emphasis is that, if the accident taken
place, for which, the employee has exposed himself to an added peril by his
own imprudent act, that means, if he acted prudently and despite the same
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accident taken place during the working hours, that can be construed as an
industrial dispute, however, by his own imprudent act if the employee, even
though during duty hours sustained bodily injuries, that cannot be construed
as an industrial accident, he contended.
34.However, in para 6 of the very same judgment, it has been held
that, it is of course impossible to lay down any rule as to the degree of proof
which is sufficient to justify an inference being drawn, but the evidence
must be such as would induce a reasonable man to draw it.
35.Therefore, the proposition is that, what is the evidence available,
based on which, whether a reasonable man can draw the conclusion, is a
matter. Here, it is no doubt in a duty day and during duty hours this accident
was taken place, however, because of the imprudent act i.e., having gone to
the other place than the work place, wherein he was expected to be staying,
which is the route cause or the real reason for such incident, which
according to the respondents, is a violence and not an Industrial accident.
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36.However, if we apply the principle and the proposition as has been
profounded especially in the decision in 1969 (2) SCC 607, based on the
evidences which are available before this Court i.e., the admitted case of
both sides, a reasonable man can easily draw a conclusion that the accident
that was taken place on 11.09.2009 was only during the duty hours in the
factory premises. Therefore, it can easily be construed as an accident taken
place in the course of and out of employment.
37.In this context, though the learned counsel appearing for the
respondents has relied upon the other two judgments i.e., 2015 (4) Mh.L.J.
245 as well as (2000) 1 Gauhati Law Reports 571, where, the learned Judge
has relied upon the earlier decision of the Bombay High Court, as has been
quoted therein, which suggest that, the cause contemplated must be the
proximate cause and not any remote cause.
38.If we take up the said proposition that, whether there has been a
proximate or remote cause available on the particular day, we can also
easily come to the conclusion that the cause for the incident taken place on
the day cannot be treated as a remote cause. The reason being for giving
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such a conclusion is that, in the case where, an employee after completing
duty hours, of course while returning home while he was standing in the
Railway Station sustained murderous injury by an unknown person, even
that was treated to be an industrial accident. Therefore, when that kind of
incident were not categorised in the category of remote cause, certainly the
present incident taken place on 11.09.2009 can be said to be an incident
taken place due to the proximate cause. Therefore, if that logic, as quoted in
the decision of the Gauhati High Court in the aforesaid decision, is applied
to the present facts of the case, one can easily come to the conclusion that, it
is only because of the proximate cause and not by the remote cause that
accident was taken place. Therefore, by analysing these decisions, as quoted
by both sides as discussed above, this Court has no hesitation to come to an
irresistible conclusion that, the accident taken place on 11.09.2009 during
the working hours of the petitioner at the industrial premises of the
respondent Management, was only an industrial accident and therefore,
what are all the benefits for which the petitioner is entitled to under Policy
29 called Accident Benefits Policy, he shall be entitled and accordingly, the
said benefits shall be extended and disbursed to the petitioner.
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39.In view of the aforesaid discussion, this Court is inclined to
dispose of this writ petition with the following orders.
That there shall be a direction to the respondent
Management to treat the period of absence of the petitioner
from 11.09.2009 to 04.11.2009 as duty period because of
industrial accident taken place on 11.09.2009 within the
provisions of Policy 29 and the consequential benefits such as
leave with pay and allowances for the entire treatment period
of 55 days shall be extended and be paid to the petitioner. The
needful, as indicated above, shall be undertaken by the
respondent Management within a period of eight weeks from
the date of receipt of a copy of this order.
40.With the above directions, the Writ Petition is ordered
accordingly. However, there shall be no order as to costs.
18.02.2021
Index: Yes
Speaking Order : Yes
Sgl
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W.P.No.8915 of 2010
To
1.The Chairman & Managing Director,
Madras Fertilizers Ltd.,
Manali, Chennai - 600 068.
2.General Manager - HR and M&D,
Madras Fertilizers Ltd.,
Manali, Chennai - 600 068.
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W.P.No.8915 of 2010
R.SURESH KUMAR, J.
Sgl
W.P.No.8915 of 2010
18.02.2021
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