Lahiri, C.J.
1. The appellant, T. Somraju, was an employee of the Eastern (now South Eastern) Railway and on the relevant date he was employed as a Khalasi in the I. O. W. Workshop at Kharida in Kharagpur. On July 17, 1953, while he was on duty as a Khalasi, he was returning to the factory at about 12-30 p.m. after taking his tiffin, he was pushed by a railway engine while crossing the railway lines near the factory. As a result of this accident, the appellant received injuries on his legs, his left-hand elbow joint and chest. He filed an application for compensation under the Workmen's Compensation Act claiming a lump payment of Rs. 4,200/-. The application by the appellant was opposed by the railway on the ground that the accident did not arise out of and in the course of his employment. The Commissioner for Workmen's Compensation, West Bengal, after recording the evidence adduced by the parties and after holding a local inspection dismissed the appellant's claim and against the order of the Commissioner for Workmen's Compensation the appellant has brought the present appeal.
2. The injuries received by the appellant have been proved. The Commissioner for Workmen's Compensation has also found that if the appellant was entitled to any compensation, he would receive 60 per cent, of his earning Capacity on the basis of his monthly wages amounting to Rs. 70/- to Rs. 80/- per month. The claim of the appellant, however, has been dismissed on the only ground that the accident took place at a point which was at a distance of 40 feet from a level crossing on the eastern side and at a distance of about 400 or 500 feet from another level crossing oh the western side. The Commissioner has found that on account of the failure of the appellant to cross the railway lines by one of the two level crossings and by crossing the railway track, the appellant encountered an added peril which took his act out of the scope of his employment
3. The learned Counsel appearing in support of the appeal has argued before us that the learned Commissioner erred in law in holding that the appellant incurred and added peril in crossing the railway lines, in view of the fact that in Crossing the railway lines the appellant was following the usual route for the purpose of coming to and going out of the I. O. W. Workshop. His argument is to the effect that the evidence in this case shows that the method of going to and coining out of the workshop which involved the Crossing of lines was the usual and recognised method and, therefore, it was an incident of his employment. Three witnesses were examined by the Commissioner for Workmen's Compensation. P. W. 1 is the applicant himself who says in his evidence that he goes every day by the same route to have his tiffin and he also returns by the same route after taking tiffin and he further adds that all persons who work in the I. O. W. Workshop pass by the same route P. W. 2, Iswar Rao, who is a fellow-worker, states that there is a track for the railway employees who work in the railway workshop and that only railway employees are allowed to pass by that route; that all the railway employees who work in the workshop have to pass by that track and that the railway company never prohibited anybody from using that track, O. P. W. No. 1 named R. Maity, who is the Assistant Station Master, Kharida Railway Station, states in his evidence that there is no track at the place of accident for crossing the railway lines and he repeats the same thing in his Cross-examination. Upon this evidence the learned Counsel appearing for the appellant has argued before us that the appellant has succeeded in proving that the route which was followed by the appellant in going to the workshop was a permitted route and if the appellant was crossing the railway lines by that permitted route, he could not be said to have incurred any added peril which would take his act outside the scope of his employment. Reliance was also placed upon sec. 3(1), proviso (b) (ii) of the Workmen's Compensation Act which provides that the employer shall not be liable to pay any compensation in respect of an injury caused by an accident which is directly attributable to the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen. It is pointed out that the railway has not proved any prohibitory order or notification warning its workmen against crossing the railway lines for the purpose of ingress to or egress from the factory workshop. The absence of a prohibitory order or notification as contemplated by Section 3(1) proviso b(ii), according to the argument of the learned counsel for the appellant makes the route used by the appellant a permitted route. We were at one stage greatly impressed by this argument, but on closer scrutiny it appears that it is of no substance. I have already quoted the substance of the evidence of the witnesses examined by the Commissioner for Workmen's Compensation on this point. The evidence of the two witnesses for the appellant is to the effect that there was either a route or a track across the railway lines which was the usual route recognised by the railway authorities. The evidence of O. P. W, 1 is to the contrary. In this state of conflicting evidence, it was the duty of the appellant to have pointed out to the Commissioner for Workmen's Compensation at the time when he held the local inspection either the track or the route that used to be followed by the workmen for the purpose of going to and coming out of the I. O. W. Workshop. This, however, was not done. Even if there was no formed track or footpath across the railway lines, the appellant could have pointed out to the Commissioner the point at which the workmen were in the habit of usually crossing the railway lines for the purpose of reaching the factory gate. No attempt was made on behalf of the appellant to prove this fact before the Commissioner when he held the local inspection. I am, therefore, unable to accept the evidence of the two witnesses examined by the appellant on this point and I would accept the evidence of O. P. W. 1 when he says that there was no track at the place of accident for crossing the railway lines. With regard to Section 3(1), proviso (b)(ii), it is true that the railway authorities have not proved any order or any prohibitory notification warning the workmen against crossing the railway lines for the purpose of coming to the factory, but the absence of such a notification or prohibitory order does not absolve the appellant from the duty of proving that the accident arose out of and in the course of his employment. The fact that there are two level crossings, one at a distance of 40 feet on the east and another at a distance of 400 or 500 feet on the west has been proved by the evidence in the case and has also been found by the Commissioner for Workmen's Compensation. The existence of these two level crossings and the absence of any permitted route, in my opinion, make the personal injury caused to the appellant by the accident one which does not arise out of and in the course of his employment.
4. Mr. Sanyal relied upon a decision of the Allahabad High Court in the case of Works Manager, Carriage and Wagon Shop E. I. Rly. v. Mahabir, : AIR1954All132 , which at first sight seemed to us to be indistinguishable from the facts of the present case. But on examining the facts of that case more closely, it appears that in that case there was a shorter route which was taken as a matter of routine by workmen for going to and coming out of the workshop in preference to a subway and two other overbridge routes. In that case there was a difference of opinion between Misra, J., and Briji Mohan Lal, J., as a result of which the case was referred to Sapru, J., for decision. The judgment of Sapru, J., at page 139, shows that the route taken by the workman was the route to which he was accustomed as a matter of routine. It was a route used by other workmen of the railway workshop with the implied permission of the railway authorities. The decision of the majority of the Judges, therefore, proceeded upon the view that the workman in that case met with the accident at the time of following a route which was a recognised method of going to and coming out of the workshop. In the case before us, however, as I have already said, the appellant has failed to prove that there was either any permitted route or formed track from which the implied consent of the railway authorities might be inferred. The absence of any such route in the present case makes the principle of the decision of the Allahabad case wholly inapplicable to the facts of the case before us. If there is no permitted route and if there is no formed track which the workmen used to follow, we cannot hold that the workmen of the I. O. W. Workshop had the liberty to cross the railway lines at every conceivable point for the purpose of going to the workshop. I therefore agree with the conclusion of the learned Commissioner for Workmen's Compensation that the action of the appellant in reaching the factory gate by crossing the railway lines instead of using the level crossing takes the case out of the main provision of Sub-section (1) of Section 3 of the Workmen's Compensation Act.
5. In the result, this appeal is dismissed, but in the circumstances of the case, there will be no order as to costs.
Bachawat, J.
6. I agree.