P L D 1967 Karachi 700 (PLP)

This appeal is against an order dated the 27th of May 1965, passed by the Commissioner for Workmen's Compensation, Karachi (Mr. M. R. K. Ghory) awarding compensation of Rs. 4,000 to the respondents, as dependants of deceased Abdul Khaleque, an employee of the appellants. The respondents had brought the action against the appellants on these facts: On 3rd of September 1964, the deceased Abdul Khalaque, who was residing in a house in P. E. C. H. Society, Karachi, took bus No. 36‑A to reach on duty at 7‑GO a.m. at West Wharf Dockyard, Karachi. He got down from the bus opposite the gate of Karachi Shipyard and Engineering Works at about 6‑45 a.m. and after crossing the main road, when he was hardly 3 to 4 yards from main gate of the Shipyard, another bus, No. 40, came from Naval Dockyard side and hit and dragged him for some distance, with the result that he died instantaneously. The respondents claimed compensation from the appellants on the ground that the injuries were caused to the deceased by the accident which arose out of arid in the course of his employment. The appellants resisted the claim and denied that the accident arose out of and in the curse of employment of the deceased. The learned Commissioner for Workmen's Compensation however, rejected the plea of the appellants for the reasons which may be stated in his own words: "Now going through the statement of the applicant, and other witnesses the deceased reached the spot opposite Ship yard's gate with the intention of resuming hi3 duty which was due to start at 7 a.m. he left his home to go to work and reached the place of accident at 6‑45 a.m. and then proceeded towards the gate which clearly shows that his mind was towards the job, his face was towards the gate, his steps were towards his place of work to punch the card as early as possible and not be late on the job and lastly as per the arguments of the counsel for the applicant Mr. Ghulam Murtaza and statement of witnesses the accident took place at the pucca road which goes inside the shipyard and con structed by shipyard, therefore, the place is within the precinct of the factory premises. Going through ail those facts and circumstances and rulings produced by the counsel for the applicant. I have come to the conclusion that the accident took place in the course of employment of the opposite‑party and arising out of the employment of the opposite -party . . . ." In view of this conclusion, sum of Rs. 4,000 as compensation on the basis of wages group of Rs. 90 to Rs. 100 as per Schedule IV of the Workmen's Compensation Act, 1923, was awarded to the respondents.

2. In support of the contention that the accident did not arise out of and in the course of his employment, the learned counsel for the appellants relied on cases reported as Mst. Maqsoodan Nisa and others v. Indo‑Pakistan Corporation Limited, Karachi (P L D 1951 Kar. 219) and Burmah Oil Co. Ltd. v. Ma Hmew Yin and another (A I R 1935 Rang. 428). The learned counsel contended that admittedly the accident had taken place opposite the main gate of appellants' premises on a public place, and the injured was as much liable to an accident as any other member of public. The learned counsel also contended that on the facts of this case, the theory of notional extension of employers premises cannot be extended upto the spot where the deceased met the accident.

3. The sole question that is to be determined in this appeal, therefore, is whether the death of the deceased was due to the accident which arose out of and in the course of his employment. It is clear on record that the accident occurred outside the main gate of Karachi Shipyard and Engineering Works, on a public place. In the application of the respondents as well as from the evidence of two witnesses Adam Khan and Shahzaman examine) on their behalf, it is evident that the place of accident was a few yards in front of the main gate of the Shipyard. The deceased was bit by a public bus No. 40 plying on a Scheduled route. There, thus, cannot be any doubt that the place of accident was a public place outside the premises of the appellant- company. The contention of the learned counsel for the respon dents, however, was that the place is within the precinct of factory premises of the appellants as held by the learned Com missioner for Workmen's Compensation and it would be covered by the definition of. "Factory" in the Factories Act, 1934. According to this definition "factory" means any premises including the precincts thereof whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1923. Precisely the contention is" that as the learned Commissioner for Workmen's Compensation has given a finding of fact that the place is within the precinct of the factory premises, this aspect of the case cannot be questioned in this appeal which lies only on a substantial question of law, in view of section 30(3) Workmen's Compensation Act, 1923. However, I find that this finding of the learned Commissioner is totally against the evidence on record. It was not the case of the respondents, at any stage that the accident occurred within the premises of the Karachi Shipyard and Engineering Works. In fact their case throughout was that the deceased met the accident outside the gate of the shipyard while he was on his way to report on duty which was to commence 15 minutes later. Mere fact that the deceased met the accident on the road which goes inside the Shipyard, cannot make the spot within the precincts of appellants' premises. I, therefore hold that the accident did not take place within the precinct of the premises of the appellants and the finding of the learned Commis sioner for Workmen's Compensation in this regard is clearly erroneous.

4. The matter, however, does not rest here because further question that &would arise is whether according to the well settled theety of notional extention of the employer's premises, the place of accident can be treated as premises belonging to the appellants. According to this theory, in certain cases, an area from which a workman passes and repasses in going to and in leaving the actual place of work may also comprise employer's premises. In the words of Supreme Court of India in the case of Saurashtra Salt Manufacturing Co, v. Bai Value Raja (AIR 1958SC881): "As a rule, the employment of a workman does dot com mence 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 reasonable extension in both time and place and a workman may be regarded as in the course of his employ ment even though he had not reached or had left hit 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. When a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him." In the case of St. Helens Colliery Co. v. Hewitson ((1924)AC59) a workman employed at a colliery' was injured in a railway accident while travelling in a special colliers' train from his work to his home at M. By an agreement between the colliery company and the railway company, the railway company agreed to provide special trains for the conveyance of the Colliery company's workmen to and from the colliery and M, and the Colliery agreed to indemnify the railway company against claims by the workmen in respect of accident, injury or loss while using the trains. Any workman who desired to travel by these trains signed an agreement with the railway company releasing them from all claims in case of accident, and the colliery company then provided him with a pass and charged him a sum less titan the full amount of the agreed fare, and this sum was deducted week by week from his wages. It was held by Lord Buckmaster, Lord Atkinson, Lord Wrendbury and Lord Carson (Lord Shaw dissenting) that there being no obligation on the workman to use the train, the injury did not arise in the course of the employment within the meaning of the Workmen's Compensation Act, 1906. This decision was followed by the House of Lords in (1926) 19 Butt Workmen's Comp. Gas 119 in Newton v. Guest, Keen and Nettlefolds Ltd. ((1926) 19 B W C C 119=135 L T 386/73 S J 689) Lord Wrenbury added: "If the employer (being entitled so to do) says, `come to your work by a particular route', the employer is on the risk when the man is coming by that route. This is so, because in each of these cases there is an obligation. The man enters the assigned train or goes by the assigned route because he has received and is obeying an order to do so. And there are cases which would 1 "suppose, be within what are called above the 'incidents' of the employment, in which the journey to and from work may fall within the employ ment, because by implication, but not by express words, the employer has indicated that route, and the man owes the duty to obey. But the mere fact that the man is going to or coming from his work although it is neces sary incident of his employment is not enough. 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 man would have owed the duty to obey it. If the employment be to do some definite manual work at some definite spot, e.g. to hew coal in a mine, and the workman is, at the moment of the accident, not at or near to that spot, but is on the surface on a public road or in a public train or other vehicle six miles from the mine, 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 to the course of his employment." The views taken by the English Court as well in the Indian decision consistently is that where a workman is under no obligation to use a conveyance provided by the employer. for taking him from his home to the place of work and back, but he can use it or not as he felt inclined, then he is under no obliga tion to his employer to use the conveyance and, therefore, he cannot be said to be acting in the course of his employment when he is injured while proceeding to his work in the conveyance.. Reference may be made to the case of Netherton v. Coles ((1945) 1 A E R 227). The work man in that case was injured in an accident while riding home after finishing work and the journey did not form a part of his service. The accident was not treated to have arisen out of and in the course of his employment. Finlay, L. J. delivering the opinion of the Court of Appeal, approved the following passage 'from Willis's Workmen's Compensation, 36th Edn. at p. 24: "As a general rule a man's employment does not begin until he has reached the place where he leas to work, or the ambit, scope or scene of his duty, and it does not continue after he has left it, and the periods of going and returning are generally excluded." In the case of Burmah Oil Co. Ltd. v. Ma Hmew Yin a servant employed as a workman started off from his place of duty before the usual time and was bitten by a snake and died. It was held that the accident did not occur either in the course of or out of his employment. Page, C. J. after considering the English ‑case‑law held as follows: "In order to come within the statute an accident must not only occur 'in the course of that is to say during actual employ ment, but in addition must arise out of it. The words 'out of necessarily involve the idea that the accident arise out of a risk incidental to the employment. A workman is acting in the course of his employment when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service."

5. It is therefore, clear that, as a rule, employment of a workman does not commence until he has reached the place of work and does not continue after he has left that place, the journey to and from the place of employment being excluded. When a workman is injured in an accident on a public road or at public place or on a public transport, while going to the place of employment or coming therefrom, he cannot be said to have been injured by an accident arising out of, or in the course of his employment because he, like any other member of the public takes risks and dangers on the public places and transport; unless of course he shows that at the time of accident he was on an errand or was performing a duty connected with his employment. Keeping this principle in view, the deceased Abdul Khalique unfortunately met his death in an accident on a public place, at a time before the commencement of hours of his duty, and the accident cannot be said to have arisen out of or in the course of his employment. "That he reached the spot opposite the gate of the Shipyard with the intention of resuming his duty which was due to start at 7 a.m. he left his home to go to work and reached the place of accident at 6‑45 a.m. and then proceeded towards the gate v0h his mind towards the job, his face was towards the gate, the steps were towards his place of work to punch the card as early as possible and not to be late on the job are considerations totally irrelevent for the purposes burdening his employers with a legal liability under the Workmen's Compensation Act, 1923. The fact that the place of accident was at a few, yards or paces from the gate of the appellants Shipyard also does not make any difference in this case as the deceased was still at a public place and he like any other member of public had to guard against the perils and dangers on a public thoroughfare.

6. For the above reasons, the appeal must succeed with the result that the judgment dated the 27th of play 1965, passed by the learned Commissioner for Workmen's Compensation is sex aside. Any amount paid or deposited by the appellants pursuant to the judgment shall be refunded to them. The appeal is allowed but due to the special circumstances of the case, the parties shall bear their own costs. K. B. A. Appeal accepted.