1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Regional Manager, Punjab National Bank & Another Vs. Smt. Paramjeet Kaur (S.B. Civil Misc. Appeal No.265/1995) DATE OF JUDGMENT : June 30, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable Mr. Jagdish Vyas for the appellants. Mr. J. Gehlot for the respondent. BY THE COURT : In this miscellaneous appeal filed under Section 30 of the Workmen Compensation Act, 1923, the petitioners are challenging the award of the Commissioner, Workmen Compensation, Sriganganagar dated 04.04.2005 passed in compensation case No.43/92, whereby, award of Rs.63,920/- by way of compensation, Rs.31,960/- by way of penalty and Rs.19,176/- by way of interest was passed by the Commissioner, Workmen Compensation, Sriganganagar in favour of the claimant respondent Smt. Paramjeet Kaur. Brief facts of the case are that a claim was filed by the sole respondent Smt. Paramjeet Kaur wd/o Santosh Singh, 2 wherein, it was stated that husband of the claimant was an employee of the Punjab National Bank and was transferred to Suratgarh from his earlier place of posting at Ranauli (district Sikar). Deceased Santosh Singh was relieved from Ranauli in the after-noon of 16.10.1990 wherefrom he reported at the R.M. Office, Sriganganagar. Further, he was directed to join duty at the Branch Suratgarh on 20.10.1990. The deceased joined duty at Suratgarh the very day at 1.00 P.M. which is evident from the TA/DA paid to him by the Bank. It is stated that Suratgarh is a place situated 75 km distant from Sriganganagar and, after joining duty, deceased Santosh Singh stayed at Sriganganagar from 21.10.1990 onwards. On 30.10.1990, however, while travelling from Sriganganagar to Suratgarh, deceased met with an accident and died. Therefore, after his death in the said accident, claim was filed by his widow before the Commissioner, Workmen Compensation, Sriganganagar under the Workmen Compensation Act, 1923. As per facts, due to non-availability of accommodation at Suratgarh and agitation of students against reservation on 30.10.1990, there was strike, therefore, in the morning at about 7.30 A.M., for the purpose of reaching office at Suratgarh, the deceased left Sriganganagar on scooter with one Charandas. In between Sriganganagar and Suratgarh, while they were going on the scooter which was driven by Charandas, they met with an accident, in which, Santosh Singh received serious injuries. 3 He was taken to the military hospital at Suratgarh from where he was referred. Information was given to the police and Regional Manager and, for treatment, he was referred to Ludhiana where he died and he was cremated at Sriganganagar. As per the claimant, deceased Santosh Singh was drawing salary of Rs.6,000/- and his age was 48 years. The claimant filed all relevant documents for proving the salary of the deceased and claim of Rs.3,83,500/- was filed. In the claim petition, notices were issued and reply was filed by the appellants (herein) before the Commissioner, Workmen Compensation. For the purpose of adjudication of the claim, two issues were framed which are as follows : “1. आय : दरटन कय क द रन व कय क अनकम म हई 2. अनतष" To prove both the issues, oral evidence as well as documentary evidence was led; and, ultimately, while holding that the provisions of Workmen Compensation Act are applicable to the Bank, the learned Commissioner awarded Rs.1,15,056/- in favour of the respondent claimant. The appellants have challenged the validity of the aforesaid award on two counts; firstly, admittedly the deceased Santosh Singh was working on the post of Manager, therefore, he was not workman as defined in Section 2 of the Act and, therefore, even if it is held that the Act is applicable upon the Bank, no claim can be awarded on the ground that Manager does not fall in the definition of workman as enumerated in the 4 Act of 1923. Further, without prejudice to the above ground, it is submitted that the accident did not take place during the course of his employment; but, both these grounds were not considered in proper perspective by the learned Commissioner, Workmen Compensation and erroneously the finding was given that on the basis of theory of notional extension, it is required to be held that the accident took place during the course of employment. Learned counsel for the appellant vehemently argued that according to regulation 12 of the Bank, no officer employee shall absent himself from his duty or to late in attending office or leave the station without having the first obtained the permission of the competent authority. However, in case of unavoidable circumstances, where availing of prior permission is not possible or difficult, it may be obtained later on. Meaning thereby, since the deceased was posted at Suratgarh he was always to be at the station and, therefore, the theory of notional extension, if at all, applied, it only extended to employment from the office premises to temporary accommodation which the deceased is assumed to have hired at Suratgarh and does not extend any further. In this case, admittedly, the accident took place outside Suratgarh, therefore, the accident which took place while travelling from Sriganganagar to Suratgarh which cannot be said to be an accident arising out during the course of employment. In that view of the matter, therefore, no liability is attracted upon the Bank. 5 Learned counsel for the appellants further submitted that as per claimant the deceased had obtained permission from the then Regional Manager Shri S.K. Marwaha and said authority was produced in evidence by the appellants as D.W.-2. In his statement, Shri Marwaha clearly deposed that on 20.10.1990 or thereafter no oral permission to leave headquarters was given by him. Shri Marwaha was thoroughly cross-examined but nothing was elicited from him to discredit his testimony, therefore, the learned Commissioner committed error while applying the theory of notional extension of employment and to treat the deceased in employment. As per learned counsel for the appellant the whole approach is contrary to law and award is vitiated by substantial error of law. Admittedly, Sriganganagar and Suratgarh are two separate places and located at a distance of 75 km. Therefore, obviously, both the stations are different and distinct. Therefore, merely for the fact that the deceased committed a misconduct leaving headquarters without permission cannot entitle him to any premium to claim compensation for accident by saying that he was travelling in the course of employment. Learned counsel for the appellants vehemently argued that as per definition enumerated in Workmen Compensation Act, the Manager does not fall under the category of workman so as to claim compensation by the claimant. The learned Commissioner, Workmen Compensation has, therefore, failed to consider this aspect of the matter although a preliminary 6 objection was raised in the reply filed by the appellants that the Workmen Compensation Act will not apply in the case of deceased Santosh Singh who was working on the post of Manager. Learned counsel for the appellants vehemently argued that as per verdict given by the Courts and Hon'ble Supreme Court, deceased Santosh Singh who was working on the post of Manager does not fall under the definition of workman. For the said purpose, learned counsel for the appellants invited my attention towards following judgments : “1. 2007 ACJ 974, 2. 2005 ACJ 1070, 3. 2005 ACJ 530, 4. 2002 ACJ 128, and 5. AIR 1994 SC 2608. Learned counsel for the appellants for the purpose of not treating the deceased in employment at the time the occurrence took place during travelling cited the following judgments : “1. AIR 1958 SC 881 and 2. AIR 1997 SC 432. While citing the above judgments, learned counsel for the appellants submitted that the learned Commissioner has committed an error while granting compensation in favour of the claimant, widow of late Santosh Singh who was working on the post of Manager at Suratgarh and died while travelling from Sriganganagar to Suratgarh, therefore, it is submitted that the 7 award impugned dated 04.04.2005 may be quashed and set aside. Per contra, learned counsel for the respondent, first of all, submitted that the question whether deceased Santosh Singh, who was working on the post of Manager, falls under the definition of “workman” or not was not raised before the Commissioner, Workmen Compensation. It is argued by learned counsel for the respondent that admittedly no accommodation was available at Suratgarh and there was strike of students against reservation, therefore, transport was not available and, with prior permission, the deceased was going up and down between Ganganagar and Suratgarh and, on 30.10.1994, when he proceeded to attend duties at Suratgarh, he met with accident on the way and ultimately died. Therefore, the learned Commissioner, Workmen Compensation has not committed any error while applying the theory of notional extension to treat the deceased in employment at the time the occurrence took place. Further, it is argued by learned counsel for the respondent that the learned Commissioner has arrived at the finding that the provisions of Workmen Compensation Act will apply in this matter for awarding compensation because, as per Section 38 of the Rajasthan Shops and Commercial Establishments Act, the Bank is commercial establishment and the provisions of Workmen Compensation Act are applicable upon the Bank. In this view of the matter, therefore, the 8 finding arrived at by the learned Commissioner while granting award in favour of the sole respondent, widow of late Santosh Singh cannot be said to be perverse or illegal or contrary to facts on record. More so, the finding is based on proper appreciation of evidence on record by the learned Commissioner, Workmen Compensation. Learned counsel for the respondent invited my attention towards judgments reported in 1958 (65) A.C.J. 473, General Manager, B.E.S.T. Undertaking, Bombay Vs. Agnes, 1977 Lab. I.C. 194, Regional Director, E.S.I.C., Trichur Vs. A. Parameswaran Pillai; and, judgment of the Karnataka High Court, reported in MACD 2009 (1) (Kar.) 43, United India Insurance Co. Ltd. Vs. Doddahallappa & Another. While citing these judgments, it is submitted that no interference is required in the impugned award passed by the learned Commissioner, Workmen Compensation, Sriganganagar, therefore, this appeal may be dismissed. I have heard learned counsel for the parties and, so also, perused the entire record of the case and gone through the judgments cited by learned counsel for the respective party. In this case, first of all, it is required to be observed that admittedly Santosh Singh was working on the post of Manager. Admittedly, he was given posting at Suratgarh upon transfer where he joined on 20.10.1994. Further, it is also admitted position of the case that the day on which the occurrence took place, deceased Santosh Singh left Sriganganagar in the 9 morning at 7.30 and he met with accident on the way. The question arises whether the employee who was posted at a particular station can leave the place of posting without prior permission or, in other words, he can leave headquarters without obtaining permission from the competent authority. In this case, admittedly, it is stated by the claimant that after obtaining verbal permission from Shri S.K. Marwa, Regional Manager, the deceased was going up and down between Sriganganagar and Suratgarh. The said Regional Manager was produced as witness before the Commissioner, Workmen Compensation and his statement was recorded as D.W.-1. Upon perusal of his statement, it is revealed that it is deposed in his statement that no oral permission was given to the deceased for leaving headquarters; meaning thereby, contention of the claimant was refuted by evidence. Further, as per the judgment of the Hon'ble apex Court, reported in AIR 1994 S.C. 2608, in which, the Larger Bench of the Hon'ble Supreme Court, while considering the case of Medical Representatives as to whether they are workmen or not, adjudicated in para 3 and 6 as follows : “3. The legal position that arises from the statutory provisions and from the aforesaid survey of the decisions may now be summarised as follows : Till 29th August, 1956 the definition of workman under the ID Act was confined to skilled and unskilled manual or clerical work and did not include the categories of persons who were employed to do “supervisory” and “technical” work. The said categories came to be included in the definition w.e.f. 29th August, 1956 by virtue of the Amending Act 36 of 1956. It is, further, for the first 10 time that by virtue of the Amending Act 46 of 1982, the categories of workmen employed to do “operational” work came to be included in the definition. What is more, it is by virtue of this Amendment that for the first time those doing non- manual unskilled and skilled work also came to be included in the definition with the result that the persons doing skilled and unskilled work whether manual or otherwise, qualified to become workmen under the ID Act. The decision in May & Baker case (AIR 1967 SC 678) (supra) was delivered when the definition did not include either “technical” or “supervisory” or “operational” categories of workmen. That is why the contention on behalf of the workmen had to be based on the manual and clerical nature of the work done by the sales representatives in that case. The Court had also, therefore, to decide the category of the sales representative with reference to whether the work done b him was of a clerical or manual nature. The Court's finding was that the canvassing for sale was neither clerical nor manual, and the clerical work done by him formed a small fraction of his work. Hence, the sales representative was not a workman. ..................... The argument instead, both before the Industrial Tribunal and this Court was based on the clerical work put in by them, which was found to be 75 per cent of their work. This Court confirmed the finding of the Tribunal that the employees concerned were workmen because 75 per cent of their time was devoted to the writing work. The incidental question was whether the sales-office and the factory and the factory office formed part of one and the same industrial establishment or were independent of each other. The Court observed that it would be unreasonable to say that those who were producing matches were workmen and those who sold them were not. In other words, the Court did not hold that the work of selling matches was as much an operational part of the industrial establishment as was that of manufacturing. ....... ........... ....... ....... ............ ........ 6. In the light of the above position of law emerging from the judicial decisions, the statutory provisions and the changes in them, we may now deal with the contentions advanced before us. It was contended by Shri Sharma, appearing 11 for the workmen that the definition of workman under the ID Act includes all employees except those covered by the four exceptions to the said definition. His second contention was that in any case, the medical representatives perform duties of skilled and technical nature and, therefore, they are workmen within the meaning of the said definition. We are afraid that both these contentions are untenable in the light of the position of law discussed above. The first contention was expressly negatived by two three-Judge Benches in May & Barker (AIR 1967 SC 678) and Burmah Shell (AIR 1971 SC 922) cases (supra) as has been pointed out in detail above. As regards the second contention, it really consists of two sub-contentions, viz., that the medical representatives are engaged in “skilled” and “technical” work. As regards the work “skilled”, we are of the view that the connotation of the said word in the context in which it is used, will not include the work of sales promotion employees such as the medical representative in the present case. That word has to be construed ejusdem generis and thus construed, would mean skilled work whether manual or non-manual, which is of a genre of the other types of work mentioned in the definition. The work of promotion of sales of the product or services of the establishment is distinct from and independent of the types of work covered by the said definition. Hence, the contention that the medical representatives were employed to do skilled work withing the meaning of the said definition, has to be rejected. As regards the “technical” nature of their work, it has been expressly rejected by this Court in Burmah Shell case (supra). Hence that contention has also to be rejected. Shri Naphade, the learned counsel appearing for the petitioner in W.P. 5259 of 1980 contended that inasmuch as the SPE Act, as if was originally enacted made a distinction between sales promotion employees drawing wages not exceeding Rs.750- per mensem (excluding commission) or Rs.9000/- per annum (including commission) and those drawing wages above the said amounts included only the first category of employees in the said definition, it was discriminatory as against those who fell in the second category and was violative of Art. 14 of the Constitution. According to him, the classification made had no rational nexus with the object sought to be achieved by the 12 enactment. We are afraid that this argument is not tenable. The service conditions and their protection are not fundamental rights. They are creatures either of statute or of the contract of employment. What service conditions would be available to particular employees, whether they are liable to be varied, and to what extent are matters governed either by the statute or the terms of the contract. The legislature cannot be mandated to prescribe and secure particular service conditions to the employees or to a particular set of employees. The service conditions and the extent of their protection as well as the set of employees in respect of which they may be prescribed and protected, are all matters to be left to the legislature. Hence when a legislation extends protective umbrella to the employees of a particular class, it cannot be faulted so long as the classification made is intelligible and has a rational nexus with the object sought to be achieved. In the present case, the classification made between two categories of the sales promotion employees, viz., those drawing wages up to a particular limit and those drawing wages above it, is fairly intelligible. The object of the legislation further appears to be to give protection of the service conditions to the weaker section of the employees belonging to the said category. The legislature at the particular time though that it was not either necessary to extend the said protection to all the employees belonging to the said category irrespective of their income or that at that stage the circumstances including the conditions and the nature of the employment and the sales business or operation did not warrant protection to the economically stronger section of the said employees, and that economically weaker among them alone needed the protection. Hence it cannot be said that the classification made of the said employees on the basis of their income had no rational nexus with the object sought to be achieved, viz., the protection of the weaker section of the said employees. The extension of the protective umbrella could not as a matter of right, therefore, be demanded by those who drew more wages. Even in the definition of the workman under the ID Act as well as under the very SPE Act, the classification of those employed to do supervisory work has been made on the basis of their monthly income although the work done by the two sections of the workmen is the same, viz., supervisory and those drawing wages above the 13 particular limit have been excluded from the said definition. According to us, it is permissible to classify workmen on the basis of their income although the work that they do is of the same nature. The protective umbrella need not cover all the workmen doing the particular type of work. It can extend to them in stages. At what stage which of the said section of the employees should come under the said umbrella is a matter which should be left to the legislature which is the best judge of the matter. We, therefore, do not see any merit in the contention.” Here, in this case, for the purpose of adjudication of the matter, definition of workman, which is enumerated in Section 2 is required to be considered. In clause 2 (n), there is definition of workman. In Schedule – II appended to the Act of 1923, it is nowhere provided that the post of Manager will fall in the category of workman. An exhaustive definition of workman has been given and upon perusal of the said schedule, it is revealed that Manager has not been included in the definition of workman. Similarly, in the judgment reported in 2007 ACJ 974, it has been held that deceased who was employed as Supervisor cannot be treated to be a workman. In para 6 of the said judgment, it is specifically held by the learned Single Judge of the Karnataka High Court that Supervisor is not a workman for the purpose of claiming any compensation under the Act. The Division Bench of Jharkhand High Court, in the judgment reported in 2005 ACJ 1070 has held that person employed by the school was over-all in-charge of the school mess and was called the Food/Mess Sergeant. He died in accident arising out 14 of and in the course of his employment. He was engaged neither in cooking nor serving food but in managing/supervising the mess work and keeping accounts thereof and as such his nature of work was clerical and supervision work of mess which was assigned to the deceased was not covered under item (iii) of Schedule II. While holding the above proposition, the dependents of the deceased Food/Mess Sergeant were not held entitled to compensation. In this view of the matter, the facts of the present case are required to be examined and, upon the facts of the present case, the question of the deceased being a workman under the definition is required to be examined. In my opinion, Manager of the Bank cannot be termed as workman because the supervisory or operational work does not fall in the category of skilled or unskilled worker. So also, in Schedule – II appended to the Act of 1923, it is nowhere provided that Manager shall be treated as a workman; meaning thereby, in the absence of specific definition, it cannot be presumed or adjudicated that Manager is a workman. Although this question was not considered by the Commissioner, Workman Compensation but fact remains that whether for claiming any compensation it has to be established that the deceased was workman, therefore, compensation can be claimed while treating Manager as workman. I am of the opinion that although the question of applicability of Workman Compensation Act, 1923 has been decided in favour of the claimant; but, it is to the extent of applicability of the Act upon 15 the Bank and, therefore, it does not require any interference. At the same time, however, it has to be established by the claimant that the deceased was workman so as to claim compensation under the Workman Compensation Act. In my opinion, Manager cannot be termed as workman so as to claim compensation under the Workman Compensation Act. For the next question whether any error has been committed by the Commissioner, Workman Compensation while applying the theory of notional extension to treat deceased Santosh Singh in employment at the time the occurrence took place, admittedly, the deceased was posted at Suratgarh and no regulation provided for allowing any employee to reside outside the place of posting; but, here in this case, the claimant claimed compensation on the ground that deceased left Sriganganagar to join duty at Suratgarh which is 75 km distant from Sriganganagar and, in between,