# UNDERTAKING, BOMBAY v. MRS. AGNES

- **Citation:** [1964] 3 S.C.R. 930
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** K. SuBBA RAo, Raghubar Dayal, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/undertaking-bombay-v-mrs-agnes-3026
- **Pages:** 34

## Headnote

Workmen's Compensation-Accident to a bus driver-If
occ•:rred •n course of tmployment-Olaim of compenBation b'!I
widow-Employer, if bound to pay-Workmen'• Compensation
Act, 1923 (8 of 1923), s. 3 (1)-Standing RuleB, rr, I (e),
3, 5, 9 (a), 10 (a) (b) (c), 12 (a), 19 (a) (b), 31 (a), 39 (a).
One P. Nanu Raman was a bus driver of the appellant
corporation. After finishing the work for the day, he left the
bus in the depot, boarded another bus to go to his residence
and the bus met with an accident and, as a result of the injuries received in that accident, he died. His widow, the
'(
respondent, through an application in the Court of the Commis~doner for Workmen's Compensation, claimed compensation
by reason of the death of her husband in an accident alleged
to have arisen ''out of and in the course of his employment".
The application was dismissed by the Commissioner, but on
appeal the High Court passed a decree in favour of the widow.
Section 3 (I) of the Workmen's Compensation Act, 1923, is
as follows :-
"If personal lnJury is caused to a workman by accident
arising out of and in the course of his employment, his
employer shall be liable to pay compensation in accordance with the provision of this chapter."
Held (per Subba Rao and Mudholkar JJ.), that under
~the :Rules, a bus driver is given the facility in his capacity as
a driver to travel in any bus belonging to the undertaking,
presumably, to enable him w keep up punctuality and to
discharge his oner1Jus obJigations. It is given to him not as a
grace, but is of right because efficiency of the service demands
it. Therefore the right of a bus driver to travel in the bus in
q~ger to discharlje his duties punctnally and efficiently was a
•
.
'
I.
•
- •
3 S.C,R.
SUPREME COURT REPORTS
931
condition of his service and there was an implied obligation
on his part to travel in the said buses as a part of his duty.
Though the doctrine of reasonable or notional extension
of employment developed in the context of specific workshops,
factories or harbours, equally applies to such a bus service the
doctrine necessarily will have to be adapted to meet its peculiar
requirements. While in a case of a factory, the premises of
the employer which gives ingress or egress to the factory is a
limited one, in the case of a city transport service, by analogy,
the entire fleet of buses forming the service would be the
"premises" .
In the present case, therefore, the High Court was right
in saying that the accident occurred to Nanu Raman during
the course of his employment and, therefore, the respondent was
entitled to compensation.
Cremins v. Guest Keen & NeUlefolds Ltd. [1908] 1 K.B.
469, St. Helens O,lliery Oo. Ltd. v. Heurfson, [1924] A.C. 59,
Aderman v. Great Western Rly. Oo. [1937] A.O. 454, Weaver v.
Tredegar Iron and Goal Oo. Ltd. (1940) 3 All. E.R. 157, Dunn
,
v. A.G. Lockwood & Oo., (1947) I All. E.R. 446, Hill v.
Butterley Oo. Ltd. (1948) 1 All. E.R. 233, Jenkins v. Elder
Dempster Line• Ltd. (1953) 2 All. E.R. 1133 and Saurashtra
Salt M"nufacturing Oo. v. Bai Valu Raja, A.I.R. 1958 S.C.
881, held inapplicable.
Per Raghubar Dayal J.-Rulc 19 cannot be construed
as a condition of service of the bus-drivers of the corporation
and, therefore, cannot artificially extend the period of their
duty and, consequently, the course of employment by the time
occupied in tr.veiling by the bus if the bus driver after dis-
• charging his duty or on his way to join duty happens to travel
by bus.
The present is not a case for notionally extending the
territorial area of the premises within which they had to di•-
charge their duty.
It is not possible to hold that the deceased was on duty
when he was
travellin~ by the other bus and met with the
accident and that the accident arose out of and in the course
of his employment and, therefore, the respondent was not
entitled to receive any compensation.
S.8. Manufacturinu Oo. v. Bai Valu R~ja, A.IR. 1958
... S.C. 881, relied on,
1963
B.E. ~.T. Uod.rt.
ldng Bmnb•y
••

## Text

_Characters 0–39,832 of 62,755. This is a partial read: ask again with offset=39832 for what follows._

196J
~qy 10.
930 SUPREME COURT REPORTS [1964] VOL.
GENERAL MANAGER, B. E. S. T.
UNDERTAKING, BOMBAY
v.
MRS. AGNES
(K. SuBBA RAo, RAGHUBAR DAYAL
and J. R. MuDHOLKAR JJ.)
Workmen's Compensation-Accident to a bus driver-If
occ•:rred •n course of tmployment-Olaim of compenBation b'!I
widow-Employer, if bound to pay-Workmen'• Compensation
Act, 1923 (8 of 1923), s. 3 (1)-Standing RuleB, rr, I (e),
3, 5, 9 (a), 10 (a) (b) (c), 12 (a), 19 (a) (b), 31 (a), 39 (a).
One P. Nanu Raman was a bus driver of the appellant
corporation. After finishing the work for the day, he left the
bus in the depot, boarded another bus to go to his residence
and the bus met with an accident and, as a result of the injuries received in that accident, he died. His widow, the
'(
respondent, through an application in the Court of the Commis~doner for Workmen's Compensation, claimed compensation
by reason of the death of her husband in an accident alleged
to have arisen ''out of and in the course of his employment".
The application was dismissed by the Commissioner, but on
appeal the High Court passed a decree in favour of the widow.
Section 3 (I) of the Workmen's Compensation Act, 1923, is
as follows :-
"If personal lnJury is caused to a workman by accident
arising out of and in the course of his employment, his
employer shall be liable to pay compensation in accordance with the provision of this chapter."
Held (per Subba Rao and Mudholkar JJ.), that under
~the :Rules, a bus driver is given the facility in his capacity as
a driver to travel in any bus belonging to the undertaking,
presumably, to enable him w keep up punctuality and to
discharge his oner1Jus obJigations. It is given to him not as a
grace, but is of right because efficiency of the service demands
it. Therefore the right of a bus driver to travel in the bus in
q~ger to discharlje his duties punctnally and efficiently was a
•
.
'
I.
•
- •
3 S.C,R.
SUPREME COURT REPORTS
931
condition of his service and there was an implied obligation
on his part to travel in the said buses as a part of his duty.
Though the doctrine of reasonable or notional extension
of employment developed in the context of specific workshops,
factories or harbours, equally applies to such a bus service the
doctrine necessarily will have to be adapted to meet its peculiar
requirements. While in a case of a factory, the premises of
the employer which gives ingress or egress to the factory is a
limited one, in the case of a city transport service, by analogy,
the entire fleet of buses forming the service would be the
"premises" .
In the present case, therefore, the High Court was right
in saying that the accident occurred to Nanu Raman during
the course of his employment and, therefore, the respondent was
entitled to compensation.
Cremins v. Guest Keen & NeUlefolds Ltd. [1908] 1 K.B.
469, St. Helens O,lliery Oo. Ltd. v. Heurfson, [1924] A.C. 59,
Aderman v. Great Western Rly. Oo. [1937] A.O. 454, Weaver v.
Tredegar Iron and Goal Oo. Ltd. (1940) 3 All. E.R. 157, Dunn
,
v. A.G. Lockwood & Oo., (1947) I All. E.R. 446, Hill v.
Butterley Oo. Ltd. (1948) 1 All. E.R. 233, Jenkins v. Elder
Dempster Line• Ltd. (1953) 2 All. E.R. 1133 and Saurashtra
Salt M"nufacturing Oo. v. Bai Valu Raja, A.I.R. 1958 S.C.
881, held inapplicable.
Per Raghubar Dayal J.-Rulc 19 cannot be construed
as a condition of service of the bus-drivers of the corporation
and, therefore, cannot artificially extend the period of their
duty and, consequently, the course of employment by the time
occupied in tr.veiling by the bus if the bus driver after dis-
• charging his duty or on his way to join duty happens to travel
by bus.
The present is not a case for notionally extending the
territorial area of the premises within which they had to di•-
charge their duty.
It is not possible to hold that the deceased was on duty
when he was
travellin~ by the other bus and met with the
accident and that the accident arose out of and in the course
of his employment and, therefore, the respondent was not
entitled to receive any compensation.
S.8. Manufacturinu Oo. v. Bai Valu R~ja, A.IR. 1958
... S.C. 881, relied on,
1963
B.E. ~.T. Uod.rt.
ldng Bmnb•y
••
Agn1s
11.R.s. T. Uni/,,.
uki., /Jtmhy
..
Agars
Sdh RaJ.
932 SUPREME COURT REPORTS [1964] VOL.
Denni• v. A. J. White & Oo. [1917] A. 0. 479, St. Hellens
Colliery Oo. v. Hewit•on, [1924] A.O. 59, Weaver v. Tredegar
Iron & Coal Oo. Ltd, (1940) 3 All. E.R. 157, Newton v. Gue<!
Keen & Nettle/olds Ltd. (1926) 135 L.T. 386, Lunghurst's
cases, [1917] A.O. 249 and M' Robb'• caae, [1918] A.O. 304,
referred to.
CrvrL APPELATE JURISDICTION: Civil Appeal
No. 133 of 1961.
Appeal by special leave from the judgment
and order dated July 29, 1959, of the Bombay High
Court in First Appeal No. 317 of 1958.
G. 8. Pathak, 8. N. Andley and Rameshwar
Nath, for the appellant.
R. Ganapathy Iyer, for the respondent.
1963. May 10. The Judgment of Subba Rao
iJ.nd Mudholkar JJ. was deliverd by Subba Rao J.
Dayal J., delivered a separate Judgment.
SuBBA RAO J.-This appeal by special leave
raises a short but difficult question of the true construction of s. 3 (1) of the Workmen's Compensation Act(S
of 1923), herein'after called the Act, and its application to the facts of this case.
The Bombay Municipal Corporation, hereinafter called the Corporation, runs a public utility
transport service in Greater Bombay and the said
transport service is managed by a Committee known
as the Bombay Electricity Supply and Transport
Committee. The said Committee conducts the
transport service in the name of Bombay Electric
Supply and Transport Undertaking. The Undertaking owns a number of buses and the Corporation
employs a staff, including bus drivers, for conducting
the said service.
One P. Nanu Raman w~s one of
-
•
~ --
~μch bμs drivers employed by the corporation. Ther~ ... , .
..
I.
3 s.c.k.
SUPREME COURT R.EPORts
933
are various depots in different parts of the City
wherein buses feedil!lg that part are garaged and
maintained.
A bus driver has to drive a bus allotted
to him from morning till evening with necessary
intervals, and for that purpose he has to reach the
depot concerned early in the morning and go back
to his home after his work is finished and the bus is
lodged in the depot. The efficiency of the service
depends, inter alia, on the facility given to a driver
for his journey to and from his house and the depot.
Presumably for that reason Rule 19 of the Standing
Rules of the Bombay Municipality B.E.S.T. Undertaking permits a specified number of the traffic outdoor staff in uniform to travel standing in a bus
without payment of fares.
Having regard to the
long distances to be covere(l in a city like Bombay,
the statutory right conferred under the rule is conducive to the efficiency of the service.
On July 20,
1957, the said Nanu Kaman finished his work for
the day at about 7.45 p.m. at Jogeshwari bus depot.
After leaving the bus in the depot, he boarded another bus in order to go to his residence at Santa
Cruz.
The said bus collided with a stationary lorry
parked at an awkward angle on Ghodbunder Road
near .Erla Bridge, Andheri.
As a result of the said
collision, Nanu Raman was thrown out on the road
and injured. He was removed to hospital for treatment
where he expired on July 26, 19:'>7. The respondent,
his widow, filed an application in the Court of the
Commissioner for Workmen's compensation, Bombay,
claiming a sum of Rs. 3,500/- as compensation by
reason of the death of her husband in an ace ident
alleged to have arisen "out of and in the course of
his employment". To· that application the General
Manager of the B.E.S.T. Undertaking, Bombay,
was made the respondent, and he contended, inter
alia, that the accident did not arise "out of and in
the course of the employment" of the deceased.
The Commissioner dismissed the application accepting the contention of the General Manager of the
19fJ
B.Ii.S. T. Unltr·
l<ki•I Bomlq
••
A.,.,,
Suliil IW /,
I~
B.E.S. T. Underto&ing JJombay
"·
Agnes
Su6u Rao J.
934 SUPREME COtJRr REPOR.ts [1964] Vot.
.B.E.S.T. Undertaking. On appeal, the High Court
of Bombay held that the said accident arose "out of
and in the course of the employment" of the said
deceased and, on that finding, passed a decree in
favour of the widow for· a sum of Rs. 3,500/· with
costs. The General Manager of the B. E. S. T.
Undertaking has preferred the present appeal against
the order of the High Court.
Section 3 ( l) of the Act reads :
,.
./
"If personal injury is caused to a workman by
-
accident arising out of and in the course of his
employment, his employer shall be liable to
pay compensation in accordance with the provisions of this Chapter."
Mr. Pathak, learued counsel for the appallant,
contends that the words "arising out of and in the
cour.1e of his employment" are pari materia with
those found in the corresponding section of the
English statute, that the said words have been
authoritatively construed by the House of Lords in
more than one decision, that an accident happening
to an employee in the course of his transit to his
house after he left the precincts of his work would be
outside the scope of the said words unless he has an
obligation under the terms of the contract of service
or otherwise to travel in the vehicle meeting with an
accident and that in the present c.ise Nanu Raman
finished his work and had no obligation to go in the
bus which met with the accident and his position
was no better than any other member of the public
who travelled by the same bus.
On the other hand, Mr. Ganapati Iyer, who
was appointed amicus curiae, argued that the interpretation sought to be put on the said words by the
appellant was too narrow and that the true interpretation is that there should be an intimate relationship between employment and the accident and that
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S S.C.R.
SUPREME COURT REPORTS
935
in the present case whether there was a c·ontractual
obligation on the part of the deceasi:d to travel by
that particular bus or not, he had a right to do so
under the contract and in the circumstances it was also
his duty in a wider sense to do as an incident of his
service.
As the same words occur in the corresponding
English statute, it would be useful to consider a few
of the leading decisions relevant to the question
raised.
In Cremins v. Guest, Keen &
NettlefoldB,
Ltd. ('), the Court of Appeal had to deal with a
similar problem. Cremins
was a collier in the
employment of the company. He, along with other
employees, lived at Dowlais, six miles from
the
colliery.
A train composed of carriages belonging
to the appellants, but driven by the Great Western
Railway Company's men, daily conveyed Cremins
and many other colliers from Dowlais to a plat·
form at Bedlinog erected by the appellants on land
belonging to the
said Railway Company. The
platform was repaired and lighted by the appellants,
and was under their control. The coHiers were the
only persons allowed to use the platform, but there
was a station open to the public at a short distance.
The colliers walked from the platform by a high
road to the colliery, which was about a quarter of a
mile from the platform.
A similar train conveyed
the colliers from
the platform to Dowlais.
The
colliers were conveyed fre~ of charge. Cremins was
waiting on the platform to get into the return train,
when he was knocked down and was killed by the
train.
His widow applied for compensation under
the workmen's Compensation Act, 1906. Under s. I
of the Act of 1906 she would be entitled to compen·
sation if the accident arose "out of and in the
course of his employment". The Court of Appeal
held that the widow was entitled for compensation.
(I) 11908) I K. B, 469.
196J
B.ES. T Undor·
t•kinl Bom/Joy
••
Apes
Subb• R .. J.
196J
B.11.S T. uo1.,1a!-
iac &.b9
...
.dt""
Subia litllJ I.
!lll6 SUPREME c6uR.t REPORTS [Ib64J \!bi..
Cozens-Hardy M. R. gave his reason for so holding
thus: " ........... I base my judgment on the implied
term of the contract of service ........................... " .
Elaborating the principle, he said :
" .............. .it was an implied term of the
contract of service that these trains should hr
provided by the employers, and that the colliers
should have the right, if not the obligation, to
travel to and fro~ without charge."
Fletcher Moulton L. J. in a concurrent judgment
said mucli to the same effect thus :
"It appears to me that the workmen were ex·
pected to travel to and from the colliery by the
trains and in the carriages provided for them
by the employers, and that it was intended by
both parties that this should be part of the con·
tract of employment."
Though the accident took place on the platform,
this decision accepted the principle. that it was an
implied term of the contract of service that the
colliers had to travel to and from the colliery by
the trains provided by the employers.
In that case,
there was certainly a right in the colliers to use the
train, but it is doubtful whether there was a legal
duty on them to do so.
But the Court was prepared
to give a popular meaniug to the word "duty" to
take in the "expectation" of user iu the particular
circumstances of the case.
The house of Lords in St. Helens Colliery
Company Ltd. v. Hewitson (1), had taken a stricter
and legalistic view of the concept of "duty". There,
a workman employed at the colliery was injured in
a railway accident while travelling in a special
colliers' train from his work to his home at Maryport. By an agreement between the colliery LOmpany and the railway company the latter agreed to
provide special trains for the conveyance of the
(I) [1924] A. C. 59.
f
.~
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•
a S.C.R.
sb:PRENm c >URT REPORTS
937
colliery cJmpany's workmen to and from the colliery
and Maryport, and the colliery company agreed to
indemnify the railway company against claims by the
workmen in respect of accident, injury or loss while
using the trains.
Any workmen who desired t •
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
representing less than the full amount of the agreed
fare, and this sum was deducted week by week from
his wages. The House of Lords by a majority held
that there being no obligation on the workmen 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. Lord Buckmaster,
after citing the passage already extracted by us in
Oremins's case (1), stated, "I find it difficult to
accept this test" and proceeded to observe :
"The workman was under no control in the
present case, nor bound in any way either to
use the train or, when he left, to obey directions; though he was where he was in consequence of his employment, I do not think it
was in its course that the accident occured "
Lord Atkinson also accepted the said
principle,
but he made an important observation, at p. 70 ,
"It must, however, be borne in mind that if
the physical features of the locality be such
that the means of transit offered
by the
employer are the only means of transit available
to transport the workman to his work, there
may, in the workman's contract of service,
be implied a term that there was an obligation
on th.e employer to provide such means and
a reciprocal obligation on the workman to avail
himself of them"·
~I) ll908J I K.B, ~9.
1968
B.E. ~-T. Utidertaking Bomb•]
..
Agnu
(ubb• Rao J.
1963
B.E.S T. Cfnd.,.
toking Bombay
..
Agnes
SMbbc Hao J.
938 SUPREME COURT REP6RTS [1964] VOL
The learned Lord had conceded that a
term of
obligation on the part of the employee to avail
himself of a particular means of transit could be
implied, having regard to the peculiar circumstances
of a case.
Lord Shaw in a dissent gave a wider
meaning to the terms of the section.
According
to him the expression "arising out of the employment" applied to the employment as such-to its
nature, its conditions, its obligations, and its incidents.
He added that a man's employment was just as wide
as his contract.
After noticing the terms of the
bargain between the parties, he concluded thus, at
at p. 86:
"These arrangements continued for the whole
twelve years of service.
The company and
the man were thus brought into intimate and
continual
daily
relations.
The
workman
secured his access to his work, the company
provided the means of transport."
Lord Wrenbury accepted the majority view and laid
down the test thus, at p. 92 :
"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."
The learned Lord was also prepared to imply a term
of duty under some circumstances, for he observed :
"And there are cases which would, I suppose be
within what are called above the "incidents"
of the employment, in which the journey to
and from work may fall within the employment, because by implication, but not by express words, the employer has indicated that
,
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3 s.d.R..
SUPREME COURT REPORTS 939
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 a necessary
incident of his employment, is not enough."
Thi~ decision accepts the principle that there should
be a duty or obligation on the part of the employee
to avail himself of the means of transit offered by the
employer; the said duty may be expressed or implied
in the contract of service.
The House of Lords again in Alderman v.
Great Western Railway Oo.('), considered this question in a different context. There, the applicant, a
travelling ticket collector in the employment of the
respondent rail way company, had, in the course of
his duty, to travel from Oxford, where his home
was, to Swansea, where he had to stay overnight,
returning thence on the following day to Oxford.
He had an unfettered right as to how he spent his
time at Swansea between si~ning off and signing on,
and he could reach the station by any route or by
any method he chose. In proceeding one morning
from his lodgings to Swansea station to perform his
usual duty, he fell in the street and sustained an
injury in respect of which he claimed compensation.
The House of Lords held that the applicant was not
performing any duty under his contract of service
·and therefore the accident did not arise in the course
of his employment. The reason for the decision is
found at p. 46t and it is :
" ...... when he (the applicant) set out from the
house in which he had chosen to lodge in
Swansea to go to sign on at the station he was
(and had been ever since he had signed off on
the previous afternoon) subject to no control
and he was for all purposes in the same position as an ordinary member of the public,
\IJ (1937] A.C. 454, %2.
196S
B E.S. T Under 0
takin1 Bombay
v.
At..,
Sulba Rao J.
1961
B.E.S. T. Uodert<king Bombay
••
Agms
Su6ba Rao J,
040 stiPilEM:.E c6tiRf REroR.ts (1964J vdt.
using the streets in transit to his employer's
premises."
This case, therefore, applies the principle that if the
l!mployee at the time of the accident occupies the
same position as an ordinary member of the public,
it cannot be said that the accident occurred in the
course of his employment.
This is a. simple case of
an employee going to the station as any other
member of the public would do, though his object
was to sign on at the said station.
In Weaver v. Tredegar Iron and Coal Co. Ltd.('),
the House of Lords reviewed the entire law and
gave a wider meaning to the concept of "duty". It
was also a case of a collier. He was caught up in a
press of fellow-workmen trying to board a train and
was pushed off the railway platform and injured.
The platform and train were both owned, managed
and controlled by a railway company, but the platform was situated by the side of a railway line which
ran through the colliery premises owned by the
workmen's employers, and was accessible from the
colliery premises only.
It was not open to the
public, and its name did not appear in the company's
time table. Employees of the colliery used it unrter
an arrangement between their employers and the
company whereby specified trains were stopped at the
platform to take the men to and from their homes at
a reduce:! fare, which was deducted by the employers
from the men's wages.
The men were free to go
home by means of the main road which ran past the
colliery, but in practice every employee used the
railway. The injured workman claimed compeusation. The House of Lords by a majority held that
the accident arose in the course of aud out of the
employment and the injured workman was entitled
to compensation. Lord Atkin posed the .question
thus : "Is he doing something in discharge of a duty
\1) (1940) 3 All. E.R. 157, 163, 164, 166.
'
(
)
•
"
..
,
3 :S.C.R. SUPREME COURT REPORTS
941
to his employer directly or indirectly imposed upon
him by his contract of service ?" and answered :
" ...... the word "duty" in the test has such a
wide connotation that it gives little assistance
as a practical guide."
He proceeded to state :
"Duty with the vague connotation given to it
above cannot be rejected, but it does not seem
to point very clearly to the desired goal. There
can be no doubt that the course of employment
cannot be limited to the time or place of the
specific work which the workman is employed
kl do.
It does not necessarily end when the
"down tools" signal 1s given, or when the
actual workshop where he is working is left.
In other words, the employment may run on
its course by its own momentum beyond the
actual stopping-place."
After considering the decisions on the subject, the
learned Lord concluded thus :
"When all the cases have been looked at and
considered, one is finally brought back to the
words of the Act, "the course of the employment". The course of the employment begins
when the workman
ent~rs the employment,
and it ceases when he leaves the employment,
it being his duty to do both."
Lord Wright puts the same idea differently thus, at
p. 172:
"In a case like the present, however, where a
man was simply using the usual and proper way
provided for leavini:: the colliery, I do not see
the relevance of the idea of duty, excfpt in
the artificial sense that a man owes his employers a duty to come to his work and to go
1963
B.l!.5.T. [).,/,,.
taki"g Bombay
v.
AgnotS
Subba Rao J.
1963
B.E.S. T. Ur.d"-
talcing Bombay
...
Agnes
Subha Rao J.
•
(
942
SUPREME COURT REPORTS (1964] VOL.
.I
away when his work is ended. I think that
it is in some such sense that duty has been referred to in certain of the cases of this nature."
Lord Romer applied the following tests to the facts
of the case, at p. 175:
"In all cases, therefore, where a workman, on
going to, or on leaving, his work, suffers an
accident on the way, the first question to be
determined is whethe1 the workman was at the
place where the accident occurred in virtue
of his status as a workman or in virtue of his
status as a member of the public."
He came to the conclusion that the employee in that
case, when the accident happened, was there only by
virtue of his status as an employee of the colliery.
Lord Porter, dealing with the test of duty, remarked
thus, at p. 179 :
"In some cases, no doubt, it may be helpful
to consider whether the man owed a duty to
his employers at the time of the accident, and
indeed, if duty be construed with sufficient
width, it may be a decisive test, but, so construed, to say that the man was doing his duty
means no more than that he was acting within
the 11cope of hi~ employment. The man's work
does not consist solely in the task which he is
employed to perform.
It includes also matters
incidental to that task.
Times during which
meals are taken, moments during which the
man is proceeding toward~ his work from one
portion of his employers' premises to another,
and periods of rest may all be mcluded. Nor
is his work necessarily confined to his employer's premises.
The man may be working
. elsewhere -e.g., in building a house, or in
work 011 the road, or in work at a dock, The
(
....
'
..
•
3 s.c.R.
SUPREME COURT REPORTS
943
question is not, I think, whether the man was
on the employer's premises.
It is rather whether he was within the sphere or area of his
employment."
Adverting to the question of alternative facilities,
the learned Lord pointed out, "However, if it is in
the course of his employment, the fact that he might
have chosen an alternative method does not disentitle him to recover".
After equating the expression
"part of his duty" with "in the course of his employment", he proceeded to observe :
"It is in the course of his employment, and,
if the phrase be used, it is part of his duty,
both to go to and to proceed from the work
upon which he is engaged, and, so lJl;llg as he
is in a
place in which persons other than
those so engaged would have no right to be,
and indeed, in which he himself would have
no right to be but for the work on which he
is employed, he wou Id, I think, normally still
be in the course of his employemen t."
But the learned Lord took care to state that he was
not considering cases in which "the necessities of
the '·ork compel the employee to traverse the public
streets or other
public places." This decision,
while it did not discard the test of "duty", gave it
a wider meaning than that given by the earlier
decisions. It was the duty of the employee to go
to the work spot and leave it and it would be his duty
to leave
it by means
of transit provided by the
employer. The exigencies of the service, the practice
obtaining therein and the nature of the service would
be the guiding factors to ascertain the scope of the
duty.
The Court of Appeal in Dunn v. A.G. Lockwood
& Go. (1), implied such a term of duty under the
(II (1947) 1 All. E.R. 446.
1963
B.E.S.T. Undertaking Romhoy
..
Ag111s
Subba Rllo J.
l!J6J
B.E.S.T. f,'1de'·
tak.int Bombay
v.
A'!nes
\ubba Rao J.
11!4 SUPREME COURT REPORTS [1964] VOL.
following circumstances. A workman, who lived
at Whitstable was employed to work at Margate.
The terms of t>he employment were that the work·
man might, though it was not obligatory, travel
from Whitstable to Margate by the 7•40 a.m. train
from Whitstable, which arrived at Margate at 8· 15
a.m. and that he was to be paid as from S a.m.
While proceeding one morning from
Whitstable
station by the most expeditious route to his work he
slipped and injured himself. The Court held that
there was a contractual 'obligation imposed on the
workman by the concession to go to his work as
quickly as possible after arrival at Margate station;
and that the accident, therefore, arose "out of and,
in the course of the employment" withiq the meaning of the Workman's
Compensation Act.
Lord
Oaksey L J., said that the accident arose in the
course of the workman's employment, because at that
time he was performing a duty which he owed to
his employer by virtue of his contract.
From the
permission given to use the 7.40 a.m. train, although
he was to be paid from 8 a.m., obligation was
implied on the part of the employee to proceed as
quickly as possible to his work by the most expeditious route after his arrival at Margate. This
decision illustrates the wider meaning given to the
test "duty", though the result was achieved by
implying an obligation in the circumstances of the
case.
In Hill v. Butterley Co. Ltd. ('), a workman
while crossing her employers' premises on her way
to the office to "clock in" before starting work,
slipped on an icy slope and was injured. . Though
there was no public right of way, the inhabitants of
the neighbouring village were using the part of the
premises, where the accident happened, without
objection from the owners for reaching- an adjoining
railway station.
The Court held that the accident
arose out of and in the course of the employment.
The fact that the premises were used as a path-way
by the other members of the public did not prevent
(11 (1948) I Alt. fl,R.~285·
<
,( ,_
,.
'
;-
'·
j
••
, 3 S.C.R.
SUPREME COURT REPORTS 946
the Court from holding that the employee met with
1911
the accident in the course of her employment.
B.i s.r. uw.•
tqk;,,,B .....
The Court of Appeal in
Jenkins v. El,der
D~mpster Lines Ltd. ('), once again construed the
expression "arising out of and in the course of
employment". There, the ship in which the deceased was employed moored against the harbour
mole of Las Palmas.
At the landward end of the
mole was a gateway where police were stationed for
the purpose, ostensibly, of keeping
unauthoriz~d
persons off the mole, but all
kinds of people
were allowed there and entry to it was practically
unrestricted. Shortly after the ship moored, the
deceased and other members of the crew went
ashore for a short while. When they were returning
to the ship, the policemen at the gate of the mole
asked them which was their ship and allowed them
to enter the mole. In the darkness, the deceassed
fell over the side of the mole and was drow•ed.
In a claim by the widow
a~ainst the employers for
compensation under the Workmen's Compensation
Acts, her claim was not allowed.
Sir Raymond
Evershed, M.R., posed the question thus : "Was the
workman at the relevant time acting in the scope
of his employment ?'' and answered :
" ............... the explanation, it is true, which
the cases have added will entitle him to say
that he was if his presence at the point where
he met with the accident is so related to his
employment as to lead to the conclusion that
he was acting within its scope."
This decision lays down a wider test, namely, that
there should be a nexus between the accident and the
employment. This Court has considered the scope
of the section in Saurasktra Salt Manufacturing Oo.
v. Bai Valu Raja ('), and accepted the doctrine of
"notional extension" of the employer's premises in
(I) {195S) 2 AllB.R. 1133.
(7) A.I.R. 1958 S.C.881,882,
..
A,pN
S•bbc H•• l.
llM
B.E.1.T. U ...
!MU, Bamba'
••
Apu
MHR• I•
946 SUPMME COURT REPORTS (1964] VOL.
the context of an accident to an employee. Imam
J., delivering the judgment of the Court laid d')wn
the law thus :
"As a rule, the employment of a workman
does not commence until he has reached the
pla~e 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 circum·
~
stances 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.''
On the facts of that case, this Court held that the
accident did not take place in the course of the
employment.
Under s. 3 ( l) of the Act the injury must be
caused to the workman by an accident arising out
of and in the course of his employment. The ques·
· tion, when does an employment begin and when
does it cease, depends upon the facts of each case.
But the Courts have agreed that the employment does
not necessarily end when the "down tool" signal
is given or when the workman leaves the actual
workshop where he is working.
There is a notional
-
p
:.
a S.c.R. SUPREME COURT REPORTS
extension of both the entry and exit by time and
space. The scope of such extension must necessarily
depend on the cir<;umstances of a given case. An
employment may end or may begin not only when
the employee begins to work or leaves his tools but
also when he uses the means of access and egress to
and from the place of employment.
A contractual
duty or obligation on the part of an employee to
use only a particular means of transport extends
the area of the field of employment to the course of
the said transport. Though at the beginning the
word "duty" has been strictly construed, the later
decisions have liberalized this concept.
A theoreti·
cal option to take an alternative route may not
detract from such a duty if the accepted one is of
proved necessity or of practical compulsion. But none
of the decisions cited at the Bar deals with a trans·
port service operating over a large area like Bombay.
They are, therefore, of little assistance, except in
so far as they laid down the principles of general
application. Indeed, some of the law Lords ex·
prcssly excluded from the scope of their discussion
cases where the exigencies of work compel an
employee to traverse public streets and other public
places. The problem that now arises before us is a
novel one and is not covered by authority.
At this stage to appreciate the scope of "duty"
of a bus driver in its wider sense, the relevant Standing Rules of the B. E. S. T. Undertaking may be
scrutinized. We are extracting only the rules made
in regard to permanent bus drivers material to the
_present enquiry.
Rule 31. (a) All applications for Bus ......... .
Drivers' tests should be written and signed
by the applicant himself.
x
x
x
x
x
x
J9fll
B.E.S.T. CJW.
tJki•t 8,..6'1,
v. ,,,,,,
Subba Rai '·
196!
~f;~~!::'"
••
~,.,,
s.JHR.,/.
948
SUPREME COURT REPORTS [1964] VOL.
(i) Bus Drivers :
(1) The applicant shall be not less
than 20 years of age and not more than
40 years of age. Birth Certificates must
be produced in doubtful cases.
x
x
x
x
x
x
(1) After recruiting,
the Undcrta·
king's rules and regulations shall be ex·
plained to those men by the Recruiting
Clerk.
·
x
x
x
x
x
x
Rule 5.
All permanent
members
of the
Traffic Outdoor Staff will be supplied with
1,mifotms as per the chart attached.
x
x
x
x
x
x
Ruk 3. Calling time must be marked iri ink
by the Starters on the time cards onec a
week in the case of permanent men, and
daily in the case of extra ~en.
Rule 9. (a) Duty· Hours: 8 hours per day for
••.......... Bus Drivers ............ .
Rule 10. Duties·Permanent :
(a) Men who arrive in time and who
work the duty, they are booked for, will
be marked for 1 day's pay. If, however,
the hours of work exceed the duty hours as
laid down-in Rule 9 (a), the excess hours
will be entered as overtime, payable as
shown in Rule 25.
(b) Men who do not arrive at their
call or miss their cars will drop to the
bottom of Extra List for the day and arc
l
,!
-
-
'
<;,;.
'
-
-
c
3 S.C.R.
SUPREME COURT REPORTS
9(9
not to be given work unless there is work
actually available for them. in which case
they will be marked as having come late
and will only be paid for the number of
hours worked. However, men given no
work are to be marked "Late-No-Work",
and will receive no pay for the day.
(c) Any man who misses his car more
than three times in a month whether he
g~ts work or not, will be reverted to Extra
List.
Rule 1. (e) All ............ drivers (Buses ......... )
who are late on duty by more than one
hour will be marked "ABSENT".
Rule 12. (a) All exchange of duties requests
to be addressed to Traffic Assistants in-
~
charge of Depots for their sanction.
Rule 19. (a) Four members of the Traffic
Outdoor Staff in uniform are permitted
to travel standing on a double deck bus
irrespective of their designation, two on
the lower deck and two on the upper deck.
On a single deck bus two members are
only permitted.
(b) Traffic Staff in uniform shall not
occupy seats even on payment of fares.
Rule 39. (a) Men can be transferred from
one Depot to another only under the
orders of a Senior Traffic Officer. This
will only be considered if the succeeding
depot is short of staff.
The gist of the aforesaid rules may be stated thus:
;
.A b\I• 4river is rec~it1=4 to tl).e service of the B.E.S.T
1161
B~;Ts=·
... ......
S.N1 RM J.
·IffS
. .. itiE.S.T. Ua4'1'·
tokbi1 Bm1bay
... ,, v.
Ap1.s
~
'
' .
Subia Ru/,
950
SUPREME COURT REPORTS [1964] VOL.
Undertaking. Before appointment the rules and
regulations of the Undertaking are explained to him
and he enters into an agreement with the Under·
taking on the basis of those terms.
He is allotted
to one depot,
but he may
be transferred to
another depot. The working hours
are
fixed
at 8 hours a day and he is uflder a duty to appear
punctually at the depot
at the calling time.
If he is late by more than one hour he will be mark·
ed absent. If he does not appear at the calling
time or "misses his car", he will not be given any
work for the day unless there
is actually work
available for him. If he "misses his car" more than
three times in a. month, he will be reverted to the
extra list, i.e.,· the list of emplo}ees other than
permanent. He is given a uniform.
He is permit·
ted to travel free of charge in a bus in the said uniform.
So long as he is in
the
uniform he
can
only travel in
the bus standing and he
cannot occupy a seat even on payment of the
prescribed fare, indicating thereby that he is travelling in that bus only in his capacity as bus driver
· of the Undertaking. He can also be transferred to
different depots.
It is manifest from the aforesaid
rules that the timings are of paramount importance
in the day's work of a bus driver. If he misses his
car he will be punished. If he is late by more than
one hour he will be marked absent for the day; and
if he is absent for 3 days in a month, he will be taken
out of the permanent list. Prernmably to enable him
to keep up punctuality and to discharge his onerous
obligations, he is given the facility in his capacity
as a driver to travel in any bus belonging to the
Undertakings. Therefore, the right to travel in
the bus in order to discharge his duties punctually
. and efficiently is a condition of his service.
Borr.bay is a City of distances.
The transport
service practically covers the entire area of Greater
Bombay.
Without the said right, it would be very
r
)
,_:
·'-
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r
'-
3 S.C.R.
SUPREME COURT REPORTS
951
difficult for a driver to sign on and sign off at the
Illa
depots at the scheduled timings, for he has to traB.B.S.T. CJoMr.
verse a long distance. But for this right, not only
t.kbt1B.-.
punctuality and timings cannot be maintained, but
y,
4tfu•
his efficiency will also suffer. D.W.I. a Traffic Ins·
pector of B.E.S.T. Undertaking, says that instrucSllbia R.. J.
tions are given to all the drivers and conductors that
they can travel in other buses. This supports the
practice of the drivers using the buses for their travel
~
from home to the depot and vice versa. Having
-
regard to the class of employees, it would be futile
to suggest that they could as well go by local suburban trains or by walking. The former, they could
not afford, and the latter, having regard to the long
distances involved, would not be practicable. As
the free transport is provided in the interest of scr·
vice, having regard to the long distance a driver has
to traverse to go to the depot from his house and
!lice tlllrsa, the user of the said buses is a proved
•
necessity giving rise to an implied obligation on his
part to travel in the said buses as a part of his duty.
He is not exercising the right as a member of the
public, but only as one belonging to a service. The
entire Greater Bombay is the field or area of the
service and every bus is an integrated part of the
service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egress
to the factory are not of much relevance to a case
where an employee has to operate over a larger area
in a bus which is in itself an integrated part of a
fleet of buses operating in the entire area.