JUDGMENT
1. In this appeal filed under Section 5 of the High Court Act, 1958 (in short ‘the Act’), judgment of learned single Judge holding that the respondent (hereinafter referred to as the employee) is entitled to accident leave is under challenge by Travancore Titanium Products Ltd., who is hereinafter referred to as ‘the employer’.
2. Factual position is almost undisputed. Sans unnecessary details it is as follows: Employee sustained an injury on February 1, 1995, in the factory premises. According to the employee, he met with the accident due to carelessness of a construction worker, near the acid plant. He applied for accident leave from February 1, 1995 to March 16, 1995, which was refused. It was stated in the letter of refusal that his prayer cannot be accepted as it was not permissible under the Rules. The refusal was challenged in Original Petition No. 19504 of 1997. Learned single Judge held that the ground on which the accident leave was refused was not tenable. It was observed that the accident happened in the factory premises, and the employee was expected to be present for joining duty, and therefore it cannot be said that the accident had not occurred during the course of employment. Stand of the employer that employee’s duty starts only at 2 p.m. and he was not expected in the factory premises in the morning, was held not to be a valid ground for refusing leave.
3. In support of the appeal, learned counsel for the appellant submitted that the Chapter III of Leave Rules governing the employee inter alia provides as follows:
38. If an employee covered under the E.S.I meets with an accident, he will be paid an amount equal to his pay less the amount received by him from the E.S.I, subject to the production of Medical Certificate and benefit slip from the ESI.
Note: Accident leave with full wages will be sanctioned to employees who are involved in accidents while on duty even for periods of 2 days or less where ESI benefits are not available, on production of ESI Certificate.
39. If an employee not covered by ESI meets with an accident while on duty, he will be eligible for accident leave with pay on production of valid medical certificate, and subject to the following conditions:
(a) All accidents which occur while on duty should be promptly reported to the Medical Officer. In cases requiring abstention from duty, employees should procure an initial certificate from the Medical Institution/ Medical attendant under whom the employee undergoes treatment, specifying the nature of injury sustained and the probable period of abstention required. The duration of the likely absence should be intimated to the Medical Officer in the proforma available in the Medical Office/time office, within 48 hours.
(b) If the absence exceeds three weeks from the date of the accident, the employee shall immediately get in touch with the company Medical Officer who may conduct a personal examination to assess the requirement of the leave.
(c) Any medical certificate produced by an employee under this rule will have to be recommended by the Company Medical Officer before leave is sanctioned.
4. Accident leave as appears in the extracted portion of the Rules is applicable when an employee not covered by the Employees’ State Insurance meets with an accident “while on duty”. The question to be determined therefore is whether the employee met with the accident while on duty. Certain expressions used in the Employees’ State Insurance Act, 1948 (in short ‘the ESI Act’) have relevance. In Sub-section (8) of Section 2, the expression used is “in the course of employment”. The words have a wider connotation than the expression “while on duty”. While dealing with a fact-situation, which has great similarity with the factual position of the case at hand, the Apex Court in Regional Director – E.S.I. Corporation and Anr. v. Francis De Costa and Anr. (1997-I-LLJ-34) (SC) observed that if it is held the employment begins from the moment the employee sets out from his house for the factory, then even if the employee stumbles and falls down at the doorstep of his house, the accident will have to be treated as to have taken place “in the course of his employment”. This interpretation leads to absurdity and has to be avoided. The stand taken by the employer in that case was that even if the work-shift begins at 4.30 p.m. any accident before that time could not be “in the course of employment”. Even if journey to the factory may have been undertaken for working at the factory at 4.30 p.m., said journey was certainly not in the course of employment. It was observed by the Apex Court that if the employee meets with an accident while riding his own bicycle on the way to his place of work, it cannot be said mat the accident was reasonably incidental to the employment and was in the course of his employment. It was further observed that the mere fact that the accident took place only fifteen minutes before the employee was to report for duly and only one kilometre away from the factory cannot be made a ground for departing from the principle that the employment of the workman does not commence until he had reached the place of employment. What happens before that is not in the course of employment.
5. In the case at hand, the accident took place inside the factory premises. That aspect has been highlighted by the employer to contend that the accident took place while he was on duty. The injury or the accident should be clearly relatable to duty. This is evident from the expression ‘while on duty’. In other words, it means that the injury or accident occurred while the employee was performing his duty. It is not the case of the employee that he was performing his duty. It is his case that he was in the factory premises in connection with duty. There is a marked distinction between a case where an employee is inside the factory premises in connection with duty and he being actually on duty.
6. In the case of Dover Navigation Co. Ltd. v. Isabella Craig 1940 AC 190 it was observed by LORD WRIGHT that:
“Nothing could be simpler than the words ‘arising out of and in the course of employment’. It is clear that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment – that is, directly or indirectly engaged on what he is employed to do gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.”
7. The principles laid in Dover’s case (supra) are instructive. In order to succeed it has to be proved by the employee (1) that there was an accident and (2) that the accident occurred while he was on duty. Even if it is stated that there was any causal connection with his employment in the factory, it cannot be said to have been sustained while on duty. “On duty” would mean occupied in performance of duty, apparently on the basis of a contract of service. Duty is an assigned task. According to WEBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY “on duty” means “at one’s post or work, occupied, engaged”. In contract “off duty” means not at one’s post or work, at liberty”. Factual position as highlighted above shows that the accident cannot be said to have taken place while employee was on duty. Learned single Judge was not justified in his conclusions, and his order is set aside.
8. The Writ Appeal is allowed as above.