Case: Regional Director, E.S.I Corporation. And Another Vs. Francis De Costa And Another

this case, an employee, of a Government contractor was at recreation centre maintained by his employer near an ocean shore along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effects. erected. On perceiving that two men standing on a reef beyond the channel were signalling for help, he undertook, with others, so swim the channel, and was drowned. The Administrative Tribunal found that the employees death arose ``out of and in course of his employment. Six members of the U.S. Supreme Court concurred with the opinion of Frankfurter, J. that the administrative decision was supported by ``substantial evidence and, therefore, was beyond the scope of permissible judicial review. Minton, J. with whom Jackson and Burton, JJ. agreed was of the opinion that the administrative finding was without any evidence. 22. This case really is an authority on the scope and extent of power of judicial review of an administrative order. The important fact which was noted in that case was that the deceased along with other employee had discovered that third persons who were in danger were in a recreation area maintained by his employer for the benefit of the employees. This finding was held to be based on substantial evidence. Frankfuter, J. observed that `` we do not mean that the evidence compelled this inference; we do not suggest that when the Deputy Commissioner had decided against the claim, the Court had been justified in disturbing his conclusion. We hold only that on this record, the decision of the District Court that the award should not be set aside should be sustained. In other words, Frankfurter, J. was of the view that from the evidence on record, either of the two conclusions could have been drawn. It is well settled that the Court will not disturb a finding of an administrative tribunal merely because it could have been taken a contrary view had it heard the case on evidence, when the view taken by the Tribunal is also a plausible view. 23. The other American decision, is in the case of OKeefee, Deputy Commissioner v Smith, Minchman and Grylls Associations, Inc, et. al., (13 L. ed 2d 895). In that case, a private engineering concerns employee hired to work in South Korea on a 365 day basis was drowned while boating on a South Korean lake. The Deputy Workmens Compensation Commissioner determined that the employees death arose out of and in course of employment so as to entitle his widow and minor child to death benefits. The decision being challenged by a writ, a panel of the Court of Appeals for the Fifth Circuit reversed the award. The Supreme Court held that there was no scope for reviewing the decision of the Deputy Commissioner. The Court of Appeals erred in summarily reversing the judgment. It was observed that ``while this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding that the decedents death, in a zone of danger, arose out of and in the course of the his employment is irrational or without substantial evidence on the record as a whole. 24. Here again, the U.S. Supreme Court declined to intervene with the decision reached by the Deputy Commissioner on evidence and reversed the decision of the court of appeal for doing what it should not have done by adopting what appeared to the Court to be a better view. 25. We fail to understand how these two American decisions which really dealt with the scope and extent of judicial review of a decision based essentially on finding of fact can come to the aid of the employee in this case.26. It has to be borne in mind that this is not a case of judicial review. The Employees State Insurance Act, 1948 provides for reference to the High Court by the statutory Courts set up under the Act, any question of law arising out of its decision (Section 81). There is also a provision for appeal in certain cases on a substantial question of law (Section 82).27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment. 28. In the case of Dover Navigation Co. Ltd. v. Isabella Craig, (1940 AC 190), it was observed by Lord Wright that - ``Nothing could be simpler than the words ``arising out of and in the course of the employment. It is clear that there two conditions to be fulfilled. What arises `` in the course of the employment is to be distinguished from what arises ``out of the employment. The former words relate to time conditioned by reference to the mans service, the latter to casualty. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence, the section imports a distinction which it does not define. The language is simple and unqualified. 29. Although the facts of this case are quite dissimilar, the principles laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a casual connection with the employment, and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment..

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our view, this cannot be a ground for departing from the principle laid down by the aforementioned cases that the employment of the workmen does not commence until he has reached the place of employment. What happens before that is not in course of employment. It was also pointed out by Lord Denning in the aforesaid case of Regina v. National Insurance Commissioner, Ex. Parte Michael (supra) that the extension of the meaning of the phrase `` in the course of his employment has taken place in some cases but in all those cases, the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was ``reasonably incidental to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment. Latham, CJ. in South Maitland Railway Properties Ltd. v. James, (67 CLR 496) observed that when the workmen on a hot day in course of their employment had to go for a short time to get some cool water to drink to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water. But the case before us does not fall within the exceptions mentioned by Lord Denning or Latham, CJ.We fail to understand how these two American decisions which really dealt with the scope and extent of judicial review of a decision based essentially on finding of fact can come to the aid of the employee in this case.26. It has to be borne in mind that this is not a case of judicial review. The Employees State Insurance Act, 1948 provides for reference to the High Court by the statutory Courts set up under the Act, any question of law arising out of its decision (Section 81). There is also a provision for appeal in certain cases on a substantial question of law (Section 82).27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.Although the facts of this case are quite dissimilar, the principles laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a casual connection with the employment, and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course ofemployee was to report for duty at 4.30 p.m. The accident took place at 4.15 p.m. only one kilometer away from the factory.In our view, this cannot be a ground for departing from the principle laid down by the aforementioned cases that the employment of the workmen does not commence until he has reached the place of employment. What happens before that is not in course of employment. It was also pointed out by Lord Denning in the aforesaid case of Regina v. National Insurance Commissioner, Ex. Parte Michael (supra) that the extension of the meaning of the phrase `` in the course of his employment has taken place in some cases but in all those cases, the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was ``reasonably incidental to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment. Latham, CJ. in South Maitland Railway Properties Ltd. v. James, (67 CLR 496) observed that when the workmen on a hot day in course of their employment had to go for a short time to get some cool water to drink to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water. But the case before us does not fall within the exceptions mentioned by Lord Denning or Latham, CJ.The case squarely comes within the proposition of law propounded by S. Jafer Imam,decision in our view, does not come to the assistance of the employees case. An employee of a Transport Undertaking was travelling in vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the Court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked.16. But in the case before us, facts are entirely different. The employee was not obliged to travel in any particular way under the terms of employment nor can it be said that he was travelling in a transport provided by the employer.It is doubtful whether his decision can be reconciled with the principle laid down by S. Jafer Imam, J. in the case of Saurashtra Salt Manufacturing Co. (supra). It is also to be noted that the death was not caused by an `accident. The death was due to acute cardiac failure. The causal connection between the death and employment had not been established. Moreover, walking to the bus stop from the employees residence and boarding the bus for going to the place of work cannot be acts in course of employment.