Saraswathi Bai and ors. Vs. Regional Director, E.S.i. Corporation and anr. - Court Judgment

Tirath S. Thakur, J.

1. This appeal under Section 82 of the Employees' State Insurance Act, 1948, arises out of an order made by the Employees' Insurance Court at Hubli dismissing an application filed by the appellants for the grant of benefits due to the dependants of the deceased employee.

2. Ramachandra Ingalahalli was an employee of Mysore Kirloskar, Sattur Unit at Sattur in Dharwad District. He was duly covered by the provisions of the Employees' State Insurance Act and held an ESI card bearing No. 827749. On 16.11.1987, he met with a fiery end by falling into a heated furnace. The appellants who happen to be the widow, minor children and the mother of the deceased employee approached the respondent Corporation for grant of dependant's benefit alleging that the accident was an employment injury and had taken place on account of poor safety-measures at the work place of the deceased. The Corporation turned down the request for grant of benefits on the ground that the demise of the deceased was not on account of any employment injury but because the employee had committed suicide by deliberately jumping into the furnace. Aggrieved by the denial of the benefits to them, the appellants filed an application before the Employees' Insurance Court at Hubli in terms of Section 75 of the Employees' State Insurance Act for adjudication of their right to receive benefits under the Act. The said application was opposed by the employer company as also the ESI Corporation. It has been alleged by the respondents that the deceased Ramachandra Ingalahalli had not met with any accident as alleged by the applicants but had committed suicide by suddenly jumping into the furnace. According to the respondents the deceased was on the fateful day working as a helper in Heavy Bay Moulding Section from where the Induction Furnace Platform was at a distance of nearly 100 ft. The furnaces were secured according to the respondents from the point of view of safety as contemplated under the provisions of the Factories Act and the Rules framed thereunder. Two senior supervisors were put in charge of the said furnaces out of which only V AI-2 was in use on that day. It was said that the deceased had without any cause and contrary to the instructions given to him, left the place of his work and gone over to furnace V AI-2 and jumped into the same.

3. On the above pleadings, the Employees' Insurance Court framed five issues and allowed the parties to adduce evidence in support of their respective cases. Saraswathi, widow of the deceased employee stepped into the witness-box apart from examining AW 2 Nagappa Basappa Chinagai. Respondents examined RW 1 Gopal Gunderao Kulkarni and RW 2 Siddappa Siddabasappa Kusugal. Appreciation of the evidence adduced before it led the Employees' Insurance Court to the conclusion that the deceased was on the date of his death working in the Moulding section of the factory and that he had committed suicide by jumping into the furnace. The application filed by the appellants was on that finding dismissed, inter alia, holding that the application was not barred by time as alleged by the respondents and that the incident had not taken place during the course of employment.

4. We have heard learned Counsel for the parties and perused the records. The Employees' State Insurance Act is a beneficial legislation enacted to provide certain benefits to the employees in the case of sickness, maternity and employment injuries, etc. The claim of the appellants for the said benefits proceeded on the premise that the untimely demise of the deceased employee was an 'employment injury' within the meaning of Section 2(8) of the Act entitling the dependants to the relief prayed for by them. The expression 'employment injury' has been defined by the said provision as under:

(8) 'employment injury' means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.

It is evident from the above that in order that a personal injury to an employee caused by accident or occupational disease be treated as an employment injury, the same must 'arise out of and 'in the course of his employment'. The Act does not define the terms 'arising out of and 'in the course of his employment'. Judicial pronouncements have all the same given meaning to the said expressions by a process of interpretation. One of the earliest decisions delivered by the Supreme Court on the interpretation of the provisions of the Act was in Saurashtra Salt Manufacturing Company v. Bai Valu Raja : (1958)IILLJ249SC where the Court declared that the employment of a workman as a rule does not commence 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. That general rule was, however, subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and re-passes in going to and in leaving the actual place of work. The Court held that in that regard there may be a 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 question had nevertheless to be determined in the facts and circumstances of each case keeping in view the theory of notional extension.

5. The provisions of Section 2(8) fell for interpretation again in Employees' State Insurance Corporation v. Francis De Costa : (1997)ILLJ34SC . That decision involved a claim on the basis of an accident that had taken place while an employee was on his way to the place of his employment. The employee's claim for disablement was allowed by the Employees' Insurance Court and the appeal filed against that order dismissed by the High Court of Kerala. The ESI Corporation, however, took the matter to the Apex Court to argue that the injury sustained by the employee was not an employment injury and the view taken by the High Court holding otherwise was erroneous. The question that fell for consideration before their Lordships was whether the injury sustained by the employee was an employment injury within me meaning of Section 2(8) so as to enable him to claim benefits under the Act. The Court declared that in order to succeed in a case the employee had to prove that the injury caused was during the course of his employment. The Court further held that the injuries sustained by the employee in that case did not 'arise out of his employment' as the accident had taken place 1 kilometer away from the place of his employment. Unless it could be said, observed the Court, that the employment begins as soon as the employee sets out for the factory from his home it could not be said that the injury was caused by an accident arising out of his employment. A road accident, while an employee was on his way to the factory, cannot be said to have its origin in his employment in the factory. More importantly, the Court interpreted the words 'in the course of his employment' and held that an accident that takes place 1 kilometer away from the factory where the workman is employed cannot be said to arise in the course of his employment. Relying upon the observations made by Lord Denning in R. v. National Insurance Commissioner, Ex Parte, Michael 1978 ACJ 299 (CA, England) the Court held that an extended meaning has been given to the phrase 'in the course of his employment' in some cases but in all such 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 applied was whether the work being done by the employee at the time of accident was incidental to his employment. But the case before the Apex Court did not according to their Lordships fall under any such exception to justify the application of an extended meaning to the expression 'in the course of his employment'. The words 'in the course of his employment' were interpreted by the Court to mean within or during the period of employment. The following passage from the judgment is in this regard instructive:

(8) The other words of limitation in Sub-section (8) of Section 2 are 'in the course of his employment'. The dictionary meaning of 'in the course of is 'during (in the course of time, as the time goes by), while doing' (Concise Oxford Dictionary, New Seventh Edn.). The dictionary meaning indicates that the accident must take place within or during the period of employment. If the employee's work shift begins at 4.30 p.m., any accident before that time will not be 'in the course of his employment'. The journey to the factory may have been undertaken for working at the factory at 4.30 p.m. But this journey was certainly not in course of employment. If 'employment' begins from the moment the employee sets out from his house for the factory, then even if the employee stumbles and falls down at the doorstep of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided.

6. Applying the above principle to the instant case, there is no escape from the conclusion that the deceased Ramachandra Ingalahalli had died in the course of his employment. That is because he had died during the period of his employment within the factory premises by falling into the furnace either accidentally as was asserted by the appellants or by design as alleged by the respondents. That being so, the only question that really fell for consideration before the Employees' Insurance Court and that falls for the consideration of this Court is whether the death of the deceased Ramachandra Ingalahalli was out of his employment. The answer to that question would be provided by Section 51-A which raises a presumption that in case of death 'arising in the course of employment' it must be presumed that it also 'arose out of the employment' of the employee when there is no evidence to the contrary. Section 51-A of the Act reads as under:

51-A. Presumption as to accident arising in course of employment.--For the purposes of this Act, an accident arising in the course of an insured person's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment.

The above leaves no manner of doubt that no sooner an accident is found to have arisen in the course of an insured person's employment, the same shall also be presumed in the absence of any evidence to the contrary to have arisen out of that employment. In the present case, since Ingalahalli had died in the course of his employment, i.e., during the period of his employment in the factory, it must be presumed that the accident leading to his death had arisen out of his employment. That presumption is on a plain reading of the provision rebuttable in nature for the presumption will arise only if there is no evidence to the contrary. Stated differently once the accident leading to the death of the employee is shown to have taken place in the course of his employment, the burden to show that the same did not arise out of the employment of the said employee will shift to the respondents.

7. The question then is whether the respondents have discharged that burden in the instant case. In other words, whether there is any evidence to displace and rebut the presumption that accident had arisen out of the employment of the deceased employee. The respondents in that regard rely upon the depositions of the two witnesses produced by them. Gopal Gunderao Kulkarni, RW 1, was working as Department in-charge of the Melting Section in the Sattur factory of the respondent No. 2, company. According to this witness, cast iron in the factory was melted by use of electric power. The furnace is fed with cast iron by the machine. The temperature inside the furnace while it is working is as high as 1400 to 1600 degree centigrade. The witness further states that he knew the deceased Ramachandra Ingalahalli who was working in the Moulding section at a distance of 100 ft. from the Melting Section. He states that there was no necessity for the deceased to go towards the Melting Section. Deceased had committed suicide by climbing the steps and jumping into the furnace. The witness further states that there was no possibility of the deceased falling into the furnace by slipping while passing by the side of the furnace. In cross-examination, however, the witness has, inter alia, stated as under:

On that day, I have not actually seen the deceased Ramachandra Ingalahalli climbing the steps and jumping inside the furnace and committing suicide.

8. RW 2, Siddappa Siddabasappa Kusugal was working in the Melting section of the Sattur factory of the company and knew Ramachandra Ingalahalli who was working in the Moulding section of that unit. On 16.11.1987, the witness was on duty and so was deceased Ramachandra Ingalahalli. The witness further states that at about 10 a.m. on that day, he had seen Ramachandra Ingalahalli jumping inside the furnace. In cross-examination, the witness, inter alia, states that the factory is owned by one Doodwala. He further states that he had not made any statement before Gopal Gunderao Kulkarni that he had seen the deceased jumping inside the furnace. The witness goes on to state as under:

I cannot say if Ramachandra Ingalahalli had accidentally died by falling inside the furnace and not by jumping inside the furnace.

9. The above depositions of the witnesses do not in our opinion rebut the presumption under Section 51-A of the Act. Insofar as RW 1 Gopal Gunderao Kulkarni is concerned, he has in no uncertain terms denied having seen the deceased committing suicide by jumping into the furnace. So also in the statement of RW 2, Siddappa Siddabasappa Kusugal, who is unable to say as to whether the deceased had accidentally died by jumping into the same. It is indeed surprising that Gopal Gunderao Kulkarni who was the incharge of the Melting section and was allegedly sitting hardly 5 ft. away from the furnace could not see him jumping into the furnace. Equally important is the fact that RW 2 Siddapa Siddabasappa Kusugal did not disclose to Gopal Gunderao Kulkarni on the date of the accident that he had seen the deceased jumping into the furnace. All told the evidence of the two witnesses is wholly insufficient to displace the statutory presumption that the accident in question had taken place out of the employment of the deceased. Super added to all this is the fact that the respondents have not produced the best evidence available with them regarding the actual place of working of the deceased. While according to the respondents, the deceased was posted in the Moulding Section, the accident has taken place in the Melting section of the factory. The place of work of the deceased, therefore, assumed importance and could have been firmly established by producing the relevant statutory registers required to be maintained in terms of the provisions of the Factories Act and the Rules framed thereunder.

10. Section 62 of the Factories Act, 1948, requires the manager of every factory to maintain a register showing the name of each adult worker in the factory, the nature of his work, the group, if any, in which he is included, the relay to which he is allotted and such other particulars as may be prescribed. Rule 112 of the Karnataka Factories Rules, 1969, inter alia, prescribes that the register of adult workers shall be in Form 11 and shall be maintained in accordance with provisions of the said rule. A reference to Form 11 prescribed by the rules would show that the register of adult workers must not only indicate the name of the worker, his parentage, but also the nature of work and department symbol apart from other particulars prescribed therein. The production of the statutory register so maintained would have thrown light on whether the deceased was on the date of the accident posted in the Moulding section as alleged by the respondents or the Melting section as suggested by the appellants. The non-production of a material document touching upon the controversy would, therefore, give rise to an inference that if produced or summoned, the same would have gone against the respondents. Suffice it to say that the evidence produced by the respondents in an attempt to rebut the presumption arising under Section 51-A has failed to achieve that object. The finding of the Employees' Insurance Court that death of the deceased did not arise out of his employment is, therefore, rendered unsustainable.

11. It was lastly argued by Mr. Papanna, Counsel appearing for the Corporation that an appeal against the order passed by the Employees' Insurance Court was maintainable only if the case involved a substantial question of law. No such question of law argued learned Counsel arose for consideration in the instant appeal which deserved to be dismissed on that ground alone. There is in our opinion no merit in that contention. An appeal against the order passed by the Employees' Insurance Court is no doubt maintainable only if the case involves substantial question of law, but, it is incorrect to suggest that no such question falls for consideration in the instant case. Two aspects need be noticed in this connection. First is that the finding of the Employees' Insurance Court that the deceased had committed suicide by deliberately jumping into the furnace was wholly without any basis. The statement of the two witnesses produced by respondents and referred to earlier in our opinion can neither substantiate nor sustain that finding. The second aspect that need be kept in view is that the very approach adopted by the Employees' Insurance Court while examining the questions that arose for consideration was erroneous. The Court below appears to have remained oblivious of Section 51-A of the Act which raises a presumption in favour of the claimants that the death was because of an accident arising out of the employment of the deceased employee. The Employees' Insurance Court ought to have examined the question from the point of view of finding out whether the statutory presumption available under Section 51-A had been rebutted by the respondents. Instead of doing so, the Court below appears to have proceeded on the basis that the burden to prove that the accident arose out of the employment of the deceased lay upon the claimants, notwithstanding the fact that the employee had died within the factory premises and in the course of his employment. It is, therefore, a case where the Court not only records a finding without any legal evidence in support of the same, but also approaches the entire controversy from a legally erroneous perspective. An appeal against a judgment vitiated by such serious legal infirmities cannot be dismissed out of hand on the ground that the questions that fall for consideration do not constitute substantial questions of law.

12. In the result, this appeal succeeds and is hereby allowed, the order passed by the Employees' Insurance Court, Hubli set aside, the application filed by the appellants allowed with the direction that the respondent Corporation shall determine and grant to the appellants, the benefits due to them in terms of Employees' State Insurance Act and the Rules framed thereunder expeditiously but not later than two months from today. No costs.