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Judgment
Salil K. Roy Chowdhury, J.—This is an appeal u/s 30 of the Workmen''s Compensation Act against an order of the Additional Commissioner dated June 2, 1970, dismissing the claim of the Appellant.
The Appellant was an employee at the Kulti workshop of the Respondent as miller. He was injured in a football match while participating with leave of the Respondent during working hours for taking part in a football tournament conducted by the Respondents The football ground was within the precincts of the Respondent reached from the workshop by road belonging to the Respondent. The Appellant while playing the said football match in the inter-departmental tournament of the Respondent was involved in an accident and got injured in the wrist of his left hand on July 24, 1964. Consequently, the Appellant on June 24, 1966, filed an application claiming compensation for sustaining permanent partial disability due to accident arising out and in course of the Appellant''s employment.
The Respondent filed written statement, but the matter was heard ex parte on November 10, 1967 and a judgment in favour of the Appellant allowing Rs. 1,260 as compensation which was assessed on the basis of 10% loss of earning capacity. Thereafter, on January 10, 1968, the Respondent made an application before the Additional Commissioner for setting aside the ex parte judgment and the order dated November 27, 1967, on various grounds. By a judgment and order dated March 4, 1968, the Additional Commissioner set aside the ex parte order dated November 27, 1967 and restored the claim case of the Appellant.
Thereafter, the case was heard by the Additional Commissioner on May 5, 1970, when the Appellant gave evidence that he worked in the machine shop'' of the Respondent. He further stated that he was a football player and at the time of his appointment he was asked by the manager of the machine shop whether he knew the game and the Appellant stated in answer that he did. He further stated that he played in big football tournaments at Ranchi and Bhagalpur and had earned a reputation. He produced, after being asked to do so, certificates about his efficiency in football. It was stated by him that on the date of the accident his duty was in ''B'' shift from 2 p.m. to 10 p.m. He went to play football on that day at the order of the manager who gave him out pass which was to be taken back by the company. The tournament was organised by the company at its own playground at Kulti. Another co-worker of the Appellant at the machine shop, one Satya Ranjan Chakrabarty, gave evidence that he was also a football player. He also stated that the knowledge of the game partially helped in getting job under the Respondent who introduced football and inter-departmental football tournaments at the workshop of the Respondent which were played at the Kulti football ground belonging to the Respondent. The road leading to the football ground also belonged to the company. The football tournament was organised by the management of the company. He stated that the shop manager issued out pass which was taken back by the company. He further stated that the manager asked the players to go to play but did not take any steps against the players who declined to play. The most important and vital evidence before the Additional Commissioner was that of M. A. Manna, the labour officer of the Respondent at Kulti. He admitted that the time of recruitment preferences were given to sportsmen. He admitted that there were sportsmen workers, but he could not tell the exact number out of the six hundred workers in the machine shop. He stated that the Respondent company held inter-departmental tournament as a welfare activity and a labour amenity. But he stated that there was no compulsion that a worker had to play in such tournaments. He stated that when the player worker asked for permission for playing in the tournament the departmental manager gave such permission. He admitted also that the Kulti works football term participated in tournaments outside the company''s workshop. The management of the company bore the expenditure of the tournaments. He also stated that the management granted the players leave when approached and such leave was special leave and they got full pay during such leave. He also stated that the captain of the team selected the players and the captain was also a worker. He further stated that after completion of play the player workers again reported for duty at the factory. He admitted that the tournaments were managed by the company and the playground was also the land of the company. The most important piece of evidence given by the said labour officer on behalf of the Respondent is that the Respondent company gives preferences to the sportsmen as such men are expected to show sportsman spirit. There was the usual medical evidence of a doctor as to the injury of the Appellant being that of Dr. D.C. Audya according to whom the permanent partial disability was assessed at 20%.
The Additional Commissioner framed two issues:
(i) Did the alleged accident arise out of and in course of the Appellant''s employment?
(ii) Has the Appellant sustained any permanent partial disability? If so, to what extent?
The Additional Commissioner by his judgment and order dated June 2, 1970, dismissed the Appellant''s claim on the finding that the accident did not arise out of and in course of employment and as such, the Appellant was not entitled to any compensation for permanent disability caused thereby. He observes that by no stretch of imagination can the football play in the inter-departmental football tournament be called a work coming within the scope of the Appellant''s employment and the accident occurring in such play as one arising out of and in the course of that employment even if the play be encouraged by the employer and special leave for taking part in the said match is granted. He relies on a statement of the co-worker of the Appellant, viz. Satya Ranjan Chakrabarty, that ''they play football for their own pleasure''. So, the Additional Commissioner observes that it is evident that there is no element of compulsion from the side of the employer. He also relies on a statement of the said co-worker in examination-in-chief that the shop manager does not take any steps against the player who declines to play. The Additional Commissioner held that the football tournament was, therefore, nothing but a labour amenity given to the workers to promote the spirit of sportsmanship and good relationship between the employer and employees. He further held that the Appellant went to play football in the tournament for his own pleasure and therefore, concluded that the accident causing the injury in the football match did not arise out of and in the course of his employment. On medical evidence he has held that the Appellant has sustained permanent partial disability by way of fracture in the left wrist and he has further held that such disability has affected the earning capacity of the Appellant. From the said order of dismissal the Appellant has come before this Court in appeal.
Mr. Sasanka Bhusan Ghosh appearing for the Appellant submitted that the Additional Commissioner erred in fact and law as well in not properly considering the evidence on record. He further submitted that the finding was based on misappreciation of evidence recorded in this case and also misunderstanding of facts and circumstances thereof. He submitted that from the evidence it was clear that the accident arose out of and in course of employment. He further submitted that the judgment and order of the Additional Commissioner was illegal and ultra vires. Mr. Ghosh has referred to an English decision in Knight v. Howard Wall Ltd. (1938) 4 All E.R. 667 (672) which was also cited before the Additional Commissioner and has submitted that the principle laid down therein applies in this case. Mr. Ghosh in substance has contended that from the facts and circumstances of this case it must be held that playing football by a player worker, who was appointed for his proficiency in football play by the Respondent company, constitutes a material term of the employment and as such, injury due to accident in course of such football play must be held to be arisen out of or in course of employment within the meaning of Section 3(1) of the said Workmen''s Compensation Act. He submitted that the Appellant did not take part in the said match out of his own pleasure but it formed part of his duty to do sol in the facts and circumstances of this case. Mr. Ghosh has also referred to a Division Bench decision of this Court in Imperial Tobacco Co. (India) Ltd. Vs. Salona Bibi, where the said Section 3(1) of the Workmen''s Compensation Act came up for consideration in a case of a workman who fell sick and was granted leave for a few days and after he came to join his work on the expiry of leave died in the dispensary of the employer. It was held that the workman''s death occurred due to accident arising out of and in course of employment. Mr. Ghosh has referred to the observation of Chakravartti C.J. which is as follows:
It appears to me to be beyond argument that if during the continuance of his employment a workman is required by the conditions of his service to do any particular thing and the act so done involves him in an accident by reason of which he suffers personal injury or death, such accident arises out of and in course of his employment, even if the act done may not be one of the duties attached to this post, but some other incidental act, required however to be done or necessitated by reason of the conditions of employment.
Relying on the said observations Mr. Ghosh has submitted that the whole test is whether playing football by the Appellant, who was admittedly appointed as a player worker, due to his proficiency as a player and as such, playing football in the inter-departmental tournament organised by the company by special leave to play during the period fixed for such play was a condition of service of the Appellant with the Respondent or an incidental act required to be done or necessitated by reason of the conditions of employment. It appears that Mr. Ghosh is right in his contention that on the facts and in the circumstances of this case playing of football by a player worker in inter-departmental tournament organised by the management of the Respondent company at its own play-ground within the workshop compound is a condition, express or implied, of the service of the Appellant or, in any event, such playing of football is an incidental act and required or necessitated by reason of condition and nature of service of the Appellant with the Respondent. Mr. Ghosh, therefore, submitted that the appeal must be allowed and as there was no contrary medical evidence, the assessment of the loss of earning capacity of the Appellant should be assessed at 20% which the Additional Commissioner accepted.
Mr. R.N. Das, appearing for the Respondent, very strongly contended relying on various decisions cited by him and also the authorities like Winfield on Tort that playing football was not a duty of a worker like the Appellant who was appointed at the machine shop of the Respondent at Kulti. He submitted that there was no compulsion on the part of the Appellant to participate in the interdepartmental tournament which was mere labour amenity and welfare activities provided by the management of the Respondent company. He submitted that the Appellant participated in the football game for his own pleasure and there was no compulsion on him to join the same. He further submitted that the Appellant was granted leave to take part in the tournament and as such, the football game was not in course of employment as the same was not the duty or nature of the work for which the Appellant was employed. He submitted that the captain selected the players to participate in the game and as such, the Respondent company had nothing to do in selecting the Appellant to play in the said game. Mr. Das has cited a decision in Central Glass Industries Ltd. Vs. Abdul Hossain, where a Division Bench decision of this Court held that a worker getting injured during football play in the playground inside the employer''s factory during the interval between two shifts cannot be said to be an accident arising out of or in course of employment. But the said decision has no application in this case as the worker was not playing football as a player worker nor he was given special leave for playing such football game. Therefore, the facts are clearly distinguishable from the present case. Mr. Das also cited a decision of the Mysore High Court in M.C. Shanthamallappa v. M.D. Chandappa Setty AIR 1958 Mys. 116 in support of his proposition that in appeal u/s 30 of the Workmen''s Compensation Act the finding of facts by the Commissioner should not be interfered with. The Commissioner was entirely within his province to weigh all the material evidence before him and come to a conclusion on such evidence. The said decision does not help Mr. Das in any way as it was held in the said decision that there was no perversity or gross misappreciation of evidence by the Commissioner in that case. But, in the instant case, we have to see whether there is misappreciation of evidence by the Commissioner and the Appeal Court u/s 30 is well within its power to consider the whole case and for that purpose to review the evidence on record and to decide questions of fact and sec whether the Commissioner has misdirected himself by wrong appreciation of the evidence and came to a perverse finding.
The only question is whether the Appellant suffered personal injury by accident ''arising out of and in course of his employment''. It seems to be clear and an admitted position that the Appellant while participating in an inter-departmental football match on July 24, 1964, arranged by the employer opposite party at its football ground was involved in an accident and was injured on the wrist of his left hand. There is no dispute as to the injury and the said injury has caused permanent partial disability which has affected his earning capacity. It is also the evidence of the labour officer of the employer opposite party that the company holds interdepartmental tournaments. Such tournaments are managed by the company as welfare activities. He has also stated that the said tournament is a labour amenity. He has also admitted that preferences are given to sportsmen in the employment by the company as such men are expected to show sportsman spirit. He has also admitted that a player worker if asks for permission to play in the tournament, the departmental manager gives such permission. It is also admitted that the management bears the expenditure of tournaments and grants players leave and such leave is treated as special leave. They get their full pay during such leave. The captain of the team selects the players. The captain is also a worker of the employer. After completion of play the players again report for duty at the factory. The play-ground and the road leading to the play-ground belongs to the employer opposite party. Therefore, the admitted position is that the Appellant is a player worker who was involved in an accident resulting in the partial permanent disability while playing a football game in the inter-departmental tournament arranged by the employer at its own football ground on July 24, 1964.
Now, the principles by which it is determined whether the personal injury is caused by accident arising out of and in course of employment which can be gathered from a long line of cases one of which was cited by the Advocate of the Appellant being Knight v. Howard Wall Ltd. Supra. A Court of Appeal decision of England where a worker was injured by a dart while he was eating his midday meal in a canteen. The canteen was a part of the employers'' premises and was provided for the convenience of the work people by arrangement with an independent contractor. The workmen were allowed to use this canteen but were under no obligation to do so and it was held that the accident arose out of and in course of employment. Slesser L.J. after discussing various decisions quoted an observation of Farwell L.J. in Brice v. Edward Lloyd Ltd. (1909) 2 K.B. 804 which is as follows:
I think a workman''s employment is not confined to the actual work upon which he is engaged, but extends to those actions which by the terms of his employment he is entitled to take or where by the terms of his employment he is taking his meal on the employer''s premises.
And finally Slesser L.J. observed in Knight v. Howard Wall Supra--
all the authorities seem to me to point to the fact that, if the facts be that the meal is provided on the premises and it is the normal course of employment that persons may rightly use those premises during the dinner hour so that they are either invitees or licensees certainly something more than trespassers--by reason of the terms of their contract, though it is not their duty to go to that canteen, it is open to a County Court Judge to find as a fact that, if they meet with an injury while in that canteen at that time, it is in the course of the employment.... Can it make any difference that he is there in the course of his employment, as a term of the contract which gives him a right to be there rather than in the carrying out of a duty? I think that it can make none. Once it is established that it is part of the course of the employment--that is to say, that it is a term of his contract that he should be there--the accident which arises at that point, if the place is one where there is a specific danger, is one which, I think, arises out of the employment.
The same question again came up before the Court of Appeal in England in R. v. Industrial Industries Commissioner, Ex parte Amalgamated Engineering Union (1966) 1 All E.R. 97 where in a factory employees were entitled to a tea-break of ten minutes in the morning. Smoking was not permitted in the workshop but was allowed in a small smoking booth. An employee who reached the booth and found the same to be full, squatted in the passage outside the booth waiting to go in and smoke. By that process he overstayed the tea-break by five minutes and was still waiting in the passage smoking a cigarette when he was injured by a fork-lift truck. He claimed industrial injury benefit on the ground that he had suffered injury by an accident arising out of and in course of the employment within the National Insurance (Industrial Injuries) Act, 1946, Section 7(1). His claim was rejected on the ground that the accident occurred not in course of his employment. In course of a judgment Lord Denning M.R. quoted with approval certain passages from the dissenting member of the Appeal Tribunal which was upheld by the Commissioner. The said passage is as follows Supra (102-3):
There was dissent from this by one member who put the matter in the right perspective;
As facilities for smoking were provided and recognized by his employer''s the claimant was doing something at the time of the accident which was incidental to his employment.
I am glad to see that on this ground the Commissioner upheld the view of the dissenting member. The Commissioner said:
I assume in favour of the claimant that there would have been no interruption in the course of his employment if during the break period he had been smoking in the booth or had been waiting outside it at the place where he was intending to go into the booth to smoke.
The Commissioner was there applying the very sensible rule that, even though a person is not obliged to be in a certain place but goes there for something incidental to his employment, such as for a meal tea canteen, he is acting in the course of his employment.
Then again Lord Denning M.R. observed as follows Supra (104):
I would agree that in the ordinary way if a man whilst at his place of work, during his hours of work, is injured by a risk incidental to his employment, then the right conclusion usually is that it is an injury which arises out of and in the course of the employment, even though he may not be doing his actual work but chatting to a friend or smoking or doing something of that kind. But he may take himself out of it if he does something of a kind entirely different from anything he was employed to do. That is what the Commissioner found here. This man was overstaying his tea-break for so long that he was taking himself out of his employment. I would dismiss the appeal.
Then Davies L.J. quoted a passage from Lord Wrenbury in St.
Helens Colliery Co. Ltd. v. Hewitson (1923) All E.R. 249 (reprint) : (1924) A.C. 59 which runs as follows:
All those things that in the course of his employment he is entitled to do by virtue of his contract he is for the purposes of the Act employed to do. It is, in fact, only another way of bringing in what other Judges have called acts incidental to the contract of service.
Then again Davies L.J. observed Supra (105-6):
When a workman is exercising a right, a privilege or a prerogative, expressly or impliedly given to him by his employer, by his conditions of employment or by his contract of employment, it could in some cases no doubt be said that he was riot working, for example, when he was having his lunch or playing a game of darts in the works canteen. He is doing something which he is permitted to do by his contract; and although he is not working, he is doing something incidental to his contract and therefore, is still within the course of his employment.
Salmon L.J. : in the said decision in R. v. Industrial Industries Commissioner Supra (105-6) observed:
I assume that in law a man is working in the course of his employment not only when he is doing what he is employed to do but also when he is doing something for the purposes of his own which is reasonably incidental to his employment. That certainly ought to be the law and I think, on the authority of Armstrong Whitworth and Co. v. Redford (1920) All E.R. 316, in 1920 and the decision of this Court in Knight v. Howard Wall Ltd. in 1938, that it is the law.
Then again Salmon L.J. observed Supra (105-6):
I, however, conclude that if the man in doing something for his own purposes which is reasonably incidental to his employment, he is still acting, in the course of his employment and I approach this case on that basis. I further assume in the claimant''s favour that any trifling or inadvertent departure from what he Js employed to do or from what he is doing for his own purposes reasonably incidental to his employment, I also accept that where a man is injured at his place of work during his hours of employment by a risk of his employment and there is no other evidence, the Court should conclude that he has been injured in the course of his employment.
It may be pointed out that the relevant wording of the English Act and the Workmen''s Compensation Act of 1923 are in pari materia and as such, those, observations of the English Court are equally applicable to the interpretation of Section 3(1) of the Workmen''s Compensation Act, 1923, which is the subject-matter of this appeal.
Here some relevant passages are set out from Halsbury''s Laws of England (3rd ed., vol. 27, p. 806, Act, 1421) which are also referred to by Mr. R.N. Das appearing for the Respondent:
1421. Recreation and training. As a general rule, an accident which results from an activity in which the claimant is obliged to engage by virtue of the terms, express or implied, of his contract of service should be regarded as arising out of and in the course of his employment. Where, therefore, participation in recreation is part, of the claimant''s duty or so much a normal and regular incidental of his duty that it could be regarded as part of it, an accident in the course of such participation arises out of and in the course of employment. In the case of nurses, particularly those in mental hospitals, the ratio decidendi depends on the predominant purpose of the game. If this is to provide recreation for the nurse and only incidentally entertainment for the patients as onlookers, it is not part of the employment; if the predominant purpose is to exercise or occupy the patients, it is--(iii) Arising out of the Employment.
Another passage from Halsbury''s Laws of England (3rd ed., vol. 27, Article 1426, p. 809) which is as follows:
An act which is reasonable or necessary, having regard to all the circumstances, though not one which is part of the workman''s ordinary duty, may be within the sphere of his employment.
It will be convenient to set out some observations of two Division Bench of our Court on this question. The first one being Imperial Tobacco Co. (India) Ltd. v. Salona Bibi Supra (460) where the said Section 3(1) of the Workmen''s Compensation Act, 1923, came up for consideration in a case of a workman who fell sick and was granted leave for a few days and after he came to join his work on expiry of the leave he died in the dispensary of the employer. It was held that the workman''s death occurred due to an accident arising out of and in course of the employment. The observations of Chakravartti C.J. in the said decision have been quoted before in course of quoting the argument of Mr. Ghosh on behalf of the Appellant.
Then in the Division Bench decision in P.E. Davis and Co. Vs. Kesto Routh, the same question u/s 3(1) of the Workmen''s Compensation Act, 1923, came up for consideration in a case where a workman employed by stevedores was injured as a result of assault by ship''s crew while attempting to drink water and it was in evidence that, the water arrangements not being made by the stevedores, the workmen were supposed to have taken water from the ship itself; the injury was held to have been received in course of his employment. A.K. Mukherjea J. delivering the judgment after discussing various English and Indian decisions on the question observed as follows:
The principle underlying all these cases is that an act which is reasonable or necessary having regard to all the circumstances, though not one, which is part of the workman''s original duty, may be within the sphere of his employment. What is necessary is that there should be a causal connection between the accident and the employment and further, that the cause should be a proximate cause and not a very remote cause. But at the same time it has been held repeatedly that if a workman in the course of his employment has to be in a particular place and by reason of his being in that particular place, has to face a situation in which he receives injuries, that fact itself would be a sufficient causal connection between the employment and the accident.
In a Privy Council decision in AIR 1933 225 (Privy Council) , in interpreting the Workmen''s Compensation Act, 1923, Section 3, in a case from New Zealand where a workman was killed due to a natural calamity, it was observed by Lord Atkin as follows:
The principle which emerges seems to be clear. The accident must be connected with the employment, must arise ''out of it. If a workman is injured by some natural force such as lightening, the heat of the sun or extreme cold, which in itself has no kind of connexion with employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further need be considered. So that if the roof or walls fall upon him, or he slips upon the premises, there is no need to make further inquiry as to why the accident happened.
Then again it was observed Supra (229):
It is almost impossible to give statutory protection in any case in which the line of distinction may not appear narrow; but the dividing principle adopted is authoritative and appears to their Lordships to be logical and they feel bound to adopt it. The substance of the matter is that in every case the words of the section alone are to be considered--''arising out of and in the course of the employment''. It is with respect misleading to apply other terms whether derived for insurance law or other sources.
Then in a Supreme Court decision in Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and Others, where a workman employed in a salt works while returning home after finishing his work had to go by a public path, then through a sandy area in the open and finally across a creek through a ferry boat. The workman, while crossing the creek in a public ferry boat which capsized due to bad weather, was drowned. A claim for compensation was rejected as it was held that the accident could not be said to have arisen out of and in the course of the employment. S. Jafar Imam J. observed as follows:
As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of 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. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer''s premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman keeping in view at all times this theory of notional extension.
Thereafter the Supreme Court in the latest decision in Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, where a seaman was found missing from the ship during the voyage and the dead-body was not found and a claim for compensation was rejected. Ramaswami J. observed as follows:
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 condition, 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.
It will be also useful for me at this stage to quote some passages from the House of Lords decision in St. Helens Colliery Co. Ltd. v. Hewitson Supra where a worker was injured in a Railway accident while travelling arranged by the employer to carry the workers to the place of work. The majority judgment dismissed the claim while Lord Shaw dissenting. In interpreting the identical word in the English Workmen''s Compensation Act, 1906, Section 1(1), it was held that the true ground on which should be based the test whether or not a case falls within the sub-section is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word ''employment'', as here used, covers and includes things belonging to or arising out of it, e.g. the obtaining by a workman of food or drink to enable him to continue his work. The words ''arising out of suggest the idea of cause and effect, the injury by accident being the effect and the employment, i.e. the discharge of the duties of the workman''s service, the cause of that effect; the words ''in the course of the employment'' mean while the workman is doing what he is employed to do, i.e. discharging the duties to his employer imposed on him by his contract of service; ''employment'' in this connection covering and including things necessary and incidental to the employment. A useful test in many cases is whether, at the moment of the accident, the employer would have been entitled to give the workman an order and the workman would have owed the duty to obey it. The mere fact that he is going to or from his work does not raise any right in the employer, then and there, to give him an order or any duty in the man to obey it. The man is not at that moment in the course of his employment.
It may be noted here that the dissenting judgment of Lord Shaw which contained the observation as to the meaning of the expression ''arising out of employment'' has been approved by the Supreme Court in the decision in Mackinnon Mackerzie''s case Supra which I have quoted before although the said decision of St. Helens Colliery Co. Ltd. v. Hewitson Supra has not been mentioned. But the decision in Lancashire and Yorkshire Rail Co. v. Highley (1917) A.C. 352 has been referred. In the House of Lords decision in St. Helens Colliery Co. Ltd. Lord Shaw repeated his classic observation as to the connotation and meaning of the expression ''arising out of employment'' in the House of Lords decision in Thom (or Simpson) v. Sinclair (1917) A.C. 127 (142) which passage seems to have been approved by our Supreme Court to which reference has been made.
It appears that there are long series of decisions as to the meaning of the said words ''arising out of employment and in course of employment''. It will be only convenient to refer to two other House of Lords decisions which seem to be relevant for throwing light on the principles of interpretation and construction of the said words. Those are Sir W.G. Armstrong, Whitworth and Co. Ltd. V. Redford (1920) A.C. 757 : (1920) All E.R. 316. In that case it was a rule that all the employees of the company should leave the works at 1 p.m. for an hour being free to go where they liked to obtain their dinner. The company provided for the work people a canteen which was a few yards from the works butt was within the cartilage and formed part of the company''s premises. To reach it a workman had to go out in the street and walk a few paces to a door which gave on stairs leading to the canteen. The use of the canteen was purely optional on the part of the employees; they might either buy their food there or eat what they had brought to the works. Just before 2 p.m. a hooter sounded and the employees had to be back at the works to ''clock on'' at that hour. If late, they lost half an hour''s pay.
The worker had her dinner at the canteen and when returning to the works after the hooter had sounded, she slipped on the stairs leading to the street, fell and broke her ankle. It was held that if a workman, during the hours of labour and while engaged on a matter ancillary or incidental to the work on which he was employed, met with an accident in a place provided by his employer where he had no right to be except by virtue of his employment, such accident in the absence of special circumstances was incurred in course of his employment. On application of that principle compensation was allowed to the worker.
The headnote of Armstrong, Whitworth if Co. Ltd. v. Redford Supra (326) has been set out which correctly represents the decision. Lord Parmoor quoted two passages relating to the meaning of the words ''in the course of the employment'' from the House of Lords decision in Davidson and Co. v. Macaby (1918) A.C. 304 which are as follows:
''In the course of employment'' does not mean during the currency of the engagement, but means in the course of work which the workman is employed to do and what is incident to it.
It connotes to my mind that the workman or servant is doing something which is part of his employment for his employer or master. No doubt, it need not be work but it must, I think, be work or the natural incidents connected with the class of work, e.g., in the workman''s case, the taking of meals during the hours of labour.
Lord Parmoor thereafter observed as follows Supra (326, 327):
This case, in my opinion, comes within the category of cases which determine that if a workman, during the hours of labour and while engaged on a matter ancillary or incidental to the work on which he is employed, meets with an accident in a place provided by his employer, where he has no right to be except by virtue of his employment, such, accident in the absence of special circumstances is incurred in the course of his employment.
Then Lord Wrenbury very aptly and correctly observed Supra (326, 327):
The language of the Act of Parliament and the decisions upon it are such as that I have long since abandoned the hope of deciding any case upon the words out of and in the course of upon grounds satisfactory to myself or convincing to others. In the present case, I say no more than that I think that the girl was in course of her employment when in hurrying down the stairs to achieve punctuality in ''clocking on''. She was endeavouring to comply with the duty of punctuality which she owed to the employer and the stairs being very ''slippery'' she was exposed to the danger which resulted in the accident by the fact that it was incidental to her employment that she was allowed to be and was in that place.
It is needless to refer to other decisions or authorities for the purpose, as the references already made, is more than enough to illustrate the principles on which the Court should he guided to determine whether the accident arose out of employment and in course of employment. The principle which can be deduced from the above decisions and authorities seems to be--
(i) Workmen''s employment is not confined to the actual work upon which he is engaged but extends to those actions which by the terms of his employment he is entitled to take.
(ii) When a workman in exercising a right, a privilege or a prerogative, expressly or impliedly given to him by his employer, by his conditions of employment or by his contract of employment, he is doing something which he is permitted to do although he is not working, he is doing something incidental to his contract and therefore, is still within the course of his employment.
(iii) When a man is working in the course of his employment not only when he is doing what he is employed to do but also when he is doing something for the purposes of his own which is reasonably incidental to his employment.
(iv) When a man is injured at his place of work during his hours, of employment by a risk of his employment and there is no other evidence, the Court should conclude that he has been injured in the course of his employment,
(v) An accident which results from an activity in which the claimant is obliged to engage by virtue of the terms, express or implied, of his contract of service should be regarded as arising out of and in the course of his employment.
(vi) An act which is reasonable or necessary, having regard to all the circumstances, though not one which is part of the workman''s ordinary duty, may be within the sphere of his employment.
(vii) If a workman, during the hours of labour and while engaged on a matter ancillary or incidental to the work on which he is employed, meets with an accident in a place provided by his employer where he has no right to be except by virtue of his employment, such accident in the absence of special circumstances is suffered in the course of his employment.
(viii) What is necessary is that there should be a causal connection between the accident and the employment and further that the cause should be a proximate cause and not a very remote cause, If a workman in course of his employment has to be in a particular place and by reason of his being in that particular place has to face a situation in which he receives injuries, that fact itself would be a sufficient causal connection between the employment and the accident.
(ix) If a worker can show that the employment exposed him in a special degree to suffering a particular injury then the accident must be said to be connected with the employment and arises out of it.
(x) The theory of notional extension of 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. There may be some reasonable extension in both time and place and a workman may be regarded as in course of his employment even though he has not reached or has left his employer''s premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in course of the employment of a workman keeping in view at all times this theory of notional extension.
(xi) The words ''in the course of the employment'' mean in course of the work which the workman is employed to do and which is incidental to it. The expression ''arising out of employment'' is not confined to the mere nature of the employment but 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'', that is, if the accident has 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.
Now, the question is whether the present case comes within the above principles. It may be noted that nobody can precisely and rightly categorise all types of cases which should be said to be arising put of and in course of employment, as that must necessarily depend on facts and circumstances of each case having regard to the ever increasing complications, diversities, variations, requirements, terms, conditions and incidents which may be called reasonably incidental or ancillary to the contract of employment. Each case has to be decided on its own merit. No decision of any decided case unless facts are identical and in all fours with a particular case can be applied to another case. No attempt should be made to hide bound and rigidly fixing the application of the principle of dock cases, canteen cases, down tool cases etc.
The decisions and authorities which Mr. Das cited no doubt laid down the principles, but the question is the application of the same to the facts of this case.
In this case, from the positive evidence on record the reasonable and proper inference would be that the Appellant was injured in an accident which arose in course of his employment. There is definitely a causal connection between his employment and the accident while playing football in the inter-departmental tournament of the Respondent company with special permission and leave granted by the company to the Appellant limited only during the period of the game within the company''s premises. It is a reasonably incidental term to the Appellant''s employment with the company which can safely be implied in the facts and circumstances of this case. There is clear evidence and admission on the part of the Respondent company that the player workers were recruited by the company for promoting sportsman spirit among the workers. It is not a case of playing game for the Appellant''s own pleasure only, but from the evidence it clearly appears that the said football game was ancillary or reasonably incidental to the Appellant''s terms of employment with the company as playing football was an implied obligation when he was selected by the captain to play in the inter-departmental tournament of the company in the play-ground within the company''s premises and for which special leave was granted. The evidence makes it clear that in course of doing his work the Appellant was granted leave to play football in the inter-departmental tournament and was to join the work as soon as the game was over for which permission was given specifically limited to the period of the game. None of the cases cited by Mr. Das can have any application as those are clearly distinguishable from the present one. Here the causal connection between the accident and the terms, conditions, obligations and incidents, either express or implied of the Appellant''s employment with the Respondent company, clearly established in evidence in this case as has been noted before.
Therefore, the judgment of the Additional Commissioner is, in my view, erroneous and perverse as it is based on wrong appreciation of the evidence before him.
In the result, the order dated June 2, 1970, of the Additional Commissioner for Workmen''s Compensation, West Bengal, being Claim Case No. 3785 of 1966 dismissing the claim of the Appellant, is hereby set aside. The case is remanded to the Court of the Commissioner for Workmen''s Compensation, West Bengal, for determining the quantum of compensation payable to the Appellant for the injury he had suffered as a result of the said accident. There will be no order as to costs.
Sankar Prasad Mitra C.J.
I agree with the judgment of my learned brother. The basic facts of this case are that the Respondent organises inter-departmental football tournaments. These tournaments are managed by the Respondent as labour welfare activities or labour amenities afforded to the workers. The management bears the expenditure of the tournaments. At the time of recruitment preferences are given to sportsmen as the employees are expected to show ''sportsman spirit''. When an employee wishes to take part in the tournament he seeks permission of the departmental manager which is given to him. The leave that is granted to him is treated as special leave on full pay. The captain of the team, who is also a worker, selects the players. The game is played during the working hours. At the end of the game the workers report back for duty. The match, in the instant case, was played in the employer''s playground and even the road leading to the play-ground belonged to the employer. The accident occurred on July 24, 1964 and the Appellant injured his left wrist.
On these facts the main question that arises for our consideration is whether the accident arose out of and in course of the Appellant''s employment within the meaning of Section 3(1) of the Workmen''s Compensation Act, 1923. In this connection, references may be made to Willis'' The Workmen''s Compensation Acts, 1925-43 (36th ed., pp. 452-70) where the broad principles relevant for our purposes have set out on the basis of reported decision. Two principles are to be borne in mind in deciding the present case. These principles are as follows:
(i) In order that the accident may be one arising out of employment, it must be shown that it is brought about by an act on the part of a workman which he is authorised, expressly or impliedly, by his employer to perform. Included in this will be an act which is not covered by express authorisation but is reasonably necessary or proper to be done.
(ii) An act, though strictly not one which the workman is required by his employment to perform, may still be regarded as within the sphere of his employment if it is a reasonable and necessary thing to do under all the circumstances unless it has been expressly or impliedly excluded from his employment. The test is whether the manner of doing the act was not so far removed from anything contemplated by either party as to take the act outside the course of employment.
If we apply the above two principles to the facts of this case, it appears to us that the Appellant''s participation in an interdepartmental football match (on the Respondent''s play-ground which could be reached by a road belonging to the Respondent), organised and managed by the Respondent and the expenditure whereof was borne by the Respondent as a part of the Respondent''s labour welfare activities, is an act which was proper to be done and was a reasonable and necessary thing to do on the facts and in the circumstances of the case. And it was not expressly or impliedly excluded from the Appellant''s employment. From this point of view, the accident arose out of and in course of the Appellant''s employment and he is entitled to compensation therefore. We have reached this conclusion on the special facts of this case indicated above as no hard and fast rule can be laid down in these matters.
I agree with my learned brother that this appeal be allowed and the order dated June 2, 1970, of the Additional Commissioner for Workmen''s Compensation, West Bengal, in Claim Case No. 3785 of 1966 be set aside. And the case be remanded to the Commissioner for determination of the amount of compensation the Appellant is entitled to under the law.