P L D 1969 Lahore 710 (PLP)

2. The facts giving rise to the appeal are that Muhammad Bashir deceased who is survived by the respondents, his depen dents, was employed as a Workman by the Allied International Corporation (the appellant) in their factory at Lahore; the manu factures of which include dyes. It is admitted that Muhammad Bashir died as a result of accidental death, by taking sodium nitrite, a poisonous chemical resembling sugar. This chemical was lying open within about 30 to 36 ft. of the place of the duty of Muhammad Bashir in an open unfenced place without being under any system of lock and key, in an open hall assessable to every body working near that place. Nobody had been posted at or near that place to warn against any possible accident. Though sign boards bearing instructions that nothing should be tasted or eaten were exhibited in the factory premises, yet the workers were never verbally told or made to understand the poisonous nature of the chemicals used or lying in the factory. When the chemical was taken by the deceased, he was utterly oblivious of the poisonous nature of the substance and he took it believing the same to be something sweet like sugar. Another person, Hazara Masih, also took the same chemical, allegedly at the instance of Bashir deceased. He tried to prove the assertion of the appellant that the factory management had been informing the workmen about the poisonous nature of the chemicals; but this part of his statement has been disbelieved by the Commissioner. A similar statement made by Mr. Muhammad Shafi, Manager of the appellant, has also been disbelieved. The duty of the deceased on the day of accident was stated to be "filling the trays with dyes", and on that day it was not his duty either to make it is admitted that it was the normal Sodium nitrite in the, tank and "had Bashir been he could not have refused." The above findings of the Commissioner can be best summa rised in his own words:‑ "The present case is that of a fatal accident. But still even in that context as I have already said when an employer keeps a poisonous substance in easy access and unguarded without informing the workman about its poisonous nature, then a hazard is created for the workman present, and then he carried a special risk with his employment, due to this gross negligence of the employer. There is every likelihood of a worker taking the substance or of eating it out of curiosity In this case the circumstances are quite otherwise the Sodium Nitrite was neither fenced off nor kept under lock and key nor it had been guarded but it had been kept in a very easily accessible manner and place He did not know that white sugar like substance lying before him was in fact a poisonous material and since he did not know and nor was likely to know the consequences of taking the substance lying before him therefore, the act was not voluntary . . . . ."

3. In the light of the above facts and finding that the accident arose out of and in the course of Bashir's employment, the Commissioner awarded compensation to the respondents amounting to Rs. 200 and Rs. 459 as costs. Aggrieved by this order, the appellant has filed this appeal.

4. Mr. H. A. Taib. the learned counsel for the appellant, has vehemently contended that in the light of the above facts, the accident cannot, in law, be held to have arisen out of and in the course of the employment of Bashir deceased. Mr. Muhammad Aqit Mirza, the learned counsel for the respondents has vaguely suggested that the contention raised in the appeal relates to a question of facts and no appeal being competent under section 30 of the Act except on a substantial question of law, this appeal was not competent. I do not agree with this reasoning of the learned counsel for the respondent. It is true that the findings of fact cannot be reopened in appeal yet in the presence of those findings, to find out whether or not A the case falls under section 3 of the Act is a question of" law. Therefore, I overrule this objection by the respondent's counsel.

5. The learned counsel for the appellant cited some decided cases in support of his contention that because it was not a part of the duty of Bashir deceased to taste or eat the chemical; therefore if he took it without the knowledge or permission of the employer, he did something which fell out of his employment. To be precise, his argument is that eating of a chemical and that too by pilfering could not fall within the connotation of "employment" as used in section 3 of the Act. The cases are:‑ Gouri Kinkar Bhakat v. Messrs Radha Kishan Cotton Mills A I R 1933 Cal. 220, Nawab Ali v. Hanuman Jute Mill A I R 1933 Cal. 513, Mst. Champi v. Messrs Shaw Wallace & Co. A I R 1937 Nag. 397, Bombay Burmah Trading Corporation Ltd. v. Ma E Nun A I R 1937 bang. 45, U Yon Shin v. Ma E Sein any others A I R 1940 Rang. 18, vishranis Yesu Haldankar v. Dadabhoy Hormosji & Co.. A I R 1942 Bom. 175, Chaudhri Muhammad Iqbal v. Mst. 5 Sardar Begum P L D 1952 Lab. 84 and Mst. Maqsoodan Nisa and others v. Indo Pakistan Corporation Ltd. P L D 1961 Kar.

219. Some of the observations in these cases go against him. How ever, according to the learned counsel himself, the basic authority which lays down the test and which test, according to him, can be found in almost every case relied upon by him is the case of Nawab Ali cited above. The test mentioned in that case is "was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yet, the accident arose out of his employment. If no, it did not, because what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment." In fact, the test laid down in that case has been directly taken from an English case Lancashire and Yorkshire Railway v. Highly (86 L J K B 715). In that case, it was further observed by Lord Sumner, who delivered the judgment, as follows:‑ "To ask if the cause of the accident was within the sphere of the employment or was one of the ordinary risks of the employment, or reasonably incidental co the employment, or conversely was an added peril and outside tire sphere of 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 possession in which he was, whereby in the course of that employment he sustained injury." Earlier in the same judgment, it was held that it was not possible to lay down any universal test and that analogies, not always so close as they seem to be at first, are often resorted to, but in the last analysis each case is to be decided on its own facts. if was subject to this basic principle that Lord Sumner attempted, to formulate the test followed in the Calcutta case. Therefore, I do not agree with the learned counsel that the test relied upon by him, which has, of course, the support of authority, is the immutable rule for each case. I prefer to follow the basis dicta of the English case that ultimately each case is to be decided on its own facts, meaning thereby that the expression used in section 3, viz. arising out of and in the course of employment, should be interpreted in the light of the facts of each case. In accepting the above rule, I do not mean to deny the value of the opinions expressed in decided cases on analogous facts. None of the learned counsel cited any case, in which the accident may have occurred due to the eating of a substance by the workman at the place of his employment, even though he was prohibited to do so. It is a case of a peculiar nature relating to the normal human psychology involving casualness, curiosity, attraction for things which are sweet and tasty, and of course temptation to pick up a thing, when it .is not actively prohibited to do so. The word "employment" has not been defined in the Act. , The omission to define such an important word in significant when no less than twelve other words and phrases, some of them not very important have been defined in section 2 of the Act. The phrase in section 3 in which the word "employment" occurs has also been left undefined. That also is significant. It is also pertinent to note that the restricted word "duty" or "work" has not been used and instead the word "employment" carrying wider connotation has been used. In my view, all this leads to one inference that the word "employment" is not to be read as synonymous with duty or work. In other words, the duty or work which the workman is performing at the time of the acci dent, if falls within the employment and even if it is not directly connected with the object of the accident which though falls within tire place, scope and connotation of employment; then the accident would be said to have arisen out of and in the course of employment. This view is influenced by the facts of this case and cannot be held to be of universal application. This is because of my view expressed earlier that in each case it will depend upon the circumstances whether or not the matter is ‑covered by section 3 of the Act. This was probably the reason why Kayani, J., while laying down some tests in the case of Chaudhri Muhammad Iqbal cited above, was pleased to observe that the list should not be assumed to be exhaustive". In another case reported as Khairoj Jama v. Matardin and others (A I R 1940 Rang. 250), seven tests have been laid down under section 3 (1) proviso (b) (ii) of the Act. That list too, in my view, for the reason mentioned above, is not exhaustive, though all these tests do provide sufficient guide lines for deciding individual cases. I have been particularly impressed by one of the tests laid down by Kayani, J, in the Lahore case and that is "the term "employment" should not be confined to the duties of a workman, but should extend to the character, conditions and accidents of the employment and the special risks involved therein." The learned counsel for the respondents also cited some cases in support of the contention that the conduct of the deceased in this case, which resulted in the accident, was covered by section 3 of the Act. Arose cases are:‑

Johnson v. Marshall Sons & Co. Limited 1906 A C 409, Plumb v. Cobden Flour Mills Company Ltd. 1914 A C 62; Urmila Dasi and another v. Tata Iron Steel Co. Ltd. A I It 1928 Pat. 508, Bhut Nath Dal Mills v. Thirat Mistry A I R 1949 Cal. 295 and Works Manager, Carriage and Wagon Shop, E.I.. Riy v. Mahabir A I R 1954 till.

132. They do support the wider connotation of the word "employment" and thus indirectly support the contention of the respondents' counsel but only in so far as they go, in particular circumstances of each case. It may be noted that in the Calcutta case of Bhut Nath Dall Mills, some allowance was made for human psychology including the impulse of moment or forgetfulness, and the consequences resulting from such basic elements of human nature have been taken note of.

6. In the present case, it is an admitted fact that the chemical was lying at an open place which was not fenced off nor was under lock and key. It was easily accessible to the workmen performing their duties around the place, and the distance of 30 to 35 ft. within a big open hall is not long enough to avoid normal human temptations, particularly the innocent ones. It is also a fact that the hazardous nature of the chemical was not known to the deceased; and at the same time there is no doubt about the reality that the chemical looked like ordinary white sugar. It was not a case of theft of any appreciable quantity of the chemical from the bulk lying on the floor. If it would have been sugar, the eating of a pinch/cube thereof or a mouthful thereof would be so small a matter that even under the penal law it would not be an offence. In this, I have taken note of the fact that this eating might also be impelled by curiosity, impulse of the moment, or just forgetfulness. When illiterate workers are not made to understand the gravity of certain acts, to accept from them the conduct of highly careful, intelligent and enlightened persons is not justified. Thus when Bashir deceased took it as sugar it was his normal human conduct of a person placed in his position. His position undoubtedly, at that time, was of a worker performing a duty in the employment of the appellant. The fact that at the particular moment he was not performing any duty in respect of the chemical, wall not make any difference; so long as it can be safely held tint the chemical was near the place of his duty and susceptible to being taken, touched or eaten by him. It is also an admitted fact that such an hazard he would not have encountered, if he would not have been in the employment of the appellant. Human‑beings, as part of mankind, do not normally come across such situations. This situation was peculiar to the employment of the deceased. Therefore, I hold that the accident in this case arose out of and in the course of Bashir's employment with the appellant, and thus the latter is liable to pay the compensation.

7. There is another aspect of the matter. In proviso (b) to subsection (1) of section 3 of the Act, the employer has been exempted from liability to pay compensation in respect of any injury, not resulting in death, caused by an accident which is directly attributable to the workman having been under the influence of drink or drugs; or to his wilful disobedience to an order expressly given, or to a rule expressly framed for the purpose of securing the safety of workman; or to wilful removal or disregard by the workman of any safety, guard or other device, which in his knowledge had been provided for the purpose of securing the safety of workman. The words "not resulting in death" used in this proviso are very important. The logical inference deducible from this proviso would be that if the defaults attributable to the workman mentioned in the proviso result in any injury to him, the employer will be absolved from paying any compensation. But if the default has resulted in death, the employer is not so absolved. In other words, it appears to be the intention of the law that if a person dies in an accident, even if occasioned by his own fault of the nature described in the proviso, the employer will be liable to pay compensation. The purpose underlying this provision of law appears to be very salutary. This provision was made by an Amending Act (XV of 1933). It took note of the conditions employment in the industry and also the mental and the psychological of the workmen working therein. They might be tempted to do certain things which otherwise may not be either permissible or, in some cases, even legal. But if by during so .lie worker dies, the law intended that his dependents should not due to any such default on the part of the workman, be deprived of the compensation. The principle that after the death of the workman it is the dependent who is entitled to the compensation and that he should not be deprived of it due to anything which was not his (dependent's) fault, has been kept in view because he, in any case, lost his bread earner. Therefore, in cases of accident resulting in death even if the workman wilfully disobeys an order or rule relating to his own safety, expressly given or framed for his sake, his dependents will not be deprived of the compensation. This of course, is subject to one condition that the accident must fall within the scope of the opening part of subsection (1) of section 3 of the Act, i.e., it must arise out of and in the course of his employment. In this case, there is no doubt about the last mentioned condition having been satisfied. Even if the deceased was guilty of any wilful disobedience to any expressly given order or rule, the case will be covered by proviso (b) to subsection (1) of section 3 of the Act and the dependents will be entitled to the compensa tion. On this view of the matter as well, the order under appeal is unexceptionable. The result is that this appeal is dismissed. But in view of the question involved, which prima facie on the filing of the appeal appeared to be arguable, there shall be no order as to costs. A. F. Appeal dismissed.