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Doctrine Of Notional Extension


The emerging intricacies of industry in our country, the increasing use of machinery and consequent danger to workmen, along with the relative poverty of the workmen themselves, it is imperative that they should be protected, as far as possible from hardship arising from accidents. The uncertainty and poverty resulting from the whims and fancies of the industry and the contingencies that may arise can be addressed through social protection as it would compensate and redistribute the risk. However, in our country there is a minimal segment of organised work force that would fall into the ambit of the social protection policies i.e., the workers have direct employee-employer relationship. Of the 397 million, approximately 28.7 million form part of the organised sector and are reaping the benefits of social protection measures. The Social Security Division of the Ministry of Labour and Employment deals with the task of framing and implementation of various social security schemes. The Workmen’s Compensation Act, 1923 is one of the non-contributory and earliest social protection legislations enacted in India that applies to unorganised sectors and to the workers employed in the organised sectors who are not covered by the Employees State Insurance Scheme. In lieu of the above-mentioned reasons and the proactive nature of this legislation, it is indispensable to discuss the mandate of the Act and to address the principle behind the same. The later part of the paper will deliberate on the way the Supreme Court interprets the underlying principle of the Act.

The Act mandates the payment of compensation to employees by certain classes of employers for injury by accident. The object of the Act laid down by the Royal Commission on Labour in India –

“The provision for compensation is not the only benefit flowing from Workmen’s Compensation legislation; it has important effects in furthering work on prevention of accidents, in giving workmen greater freedom from anxiety and in rendering industry more attractive.”

The Act will not only provide compensation to the workers but at the same time will increase the responsibility on the employer to ensure that adequate safety measures are at place and concomitant to the above, it would shift the onus on to the employer to provide the workers with proper medical care to mitigate the effects of such accidents. The Act being a social security legislation must not be interpreted in a narrow sense but rather must be given a wider interpretation so as to fulfil the intentions of the Parliament i.e., to make every employer an insurer of the workmen and responsible for accident caused, while they were engaged in work. The Act covers workmen working in transport establishments, factories, newspaper establishments, establishments indulging in construction and others listed in Schedule II of the Act. The amendments of Workman’s Compensation Act 1923 have enlarged after the amendments carried out in 2009 and the name of the Act has been amended to Employees Compensation Act. The underlying principle of the Act is the doctrine of notional extension. In accordance with the provisions of Sec 3(1), if personal injury is caused to an employee by an accident arising out of and during his employment, his employer is liable to pay compensation.

The doctrine of notional extension means that the premises of employment do not commence when the workman enters the gate of the establishment and does not culminate when he leaves the gate of the establishment. There exists notional extension at the entry and exit by time and space i.e., when the workman starts from his home towards his place of work/ establishment and when he leaves his place of work/ establishment for his home. The entire journey is included under the doctrine of notional extension. However, it is imperative that the scope of such extension be depended on the facts and circumstances of a case. The doctrine of notional extension is not envisaged under the Act but it is important that the courts liberally adopt the policy while dealing with cases instead of having a rigid and pedantic stand. The employment may commence or conclude not only when the workman begins to work or leaves back home but also when he uses the means of transport to and from the place of employment.

The SC in the case of Regional Director, ESI Corp. vs. Francis Decosta observed that every accident that occurs while coming and going back from the establishment cannot be said to be in connection with employment. The SC further commented that if employment is taken to begin from the moment the employee sets out from his house for the establishment then even if the workman stumbles and falls down at door steps of his house, the accident will have to be treated as to have taken place in the course of employment. However, such an interpretation by the Supreme Court would lead to absurdity and irrationality.

In the case of BEST Undertaking vs. Mrs Agnes, the SC took into consideration a host of English authorities and pointed out that as per Sec 3(1) of the Act, the workman must get injured by an accident arising out of and in course of employment. The Courts have agreed to the fact that the employment does not complete when workman is leaving the establishment due to the notional extension at the entry and exit in time and space. A contractual obligation on the part of an employee to use particular means of transport shall extend the area of the field of employment to the course of the said transport. The interpretation of the terms ‘in course of employment’ and ‘arising out of employment’ is critical in this regard as these words have created a judicial controversy. The word ‘in course of employment’ means that in the course of work for which the workman was employed for and the word ‘arising out of employment’ means that during the course of work for which the workman was employed for, injury has resulted due to work incidental to his duties and it is reasonable to believe that the workman would not have suffered those injuries unless and until he was engaged in the duties he was performing. There has to be causal relationship between the accident and the employment. Initially it was followed that an accident that arose out of and in the course of employment only if the workman was injured at the place of his employment. However, such a narrow interpretation will not only defeat the mandate of the Act but will also create challenges with respect to modern industrial establishments. The automation in the industry does not require each and every employee to work as there are many establishments which have workforce on reserve. It is for the benefit of the workers’ that the Workers’ Compensation Act adopted the doctrine of notional extension and it was in this decision of the Supreme Court that the authoritative rule of the doctrine was discussed. It is settled law that there is a limit to extend the employer’s liability through the theory of notional extension of official premises and beyond that limit, if a workman gets injured the theory will not have any application and the liability of the employer will not come into question.

It is of utmost to study the various judgments that dealt with the doctrine of notional extension as the doctrine does not have a fixed test but is rather based of facts and circumstances. In the case of Maherunisha Ahemad Khan Pathan and other v. Employees State Insurance Corporation, it was held that a workman while returning home was assaulted by a mob during communal riots and died. It was held that the place of accident need not necessarily be located within the limits of the factory premises so long as the accident falls within a zone which can be notionally deemed to be the zone of the factory for the propose of the Act by recourse to the theory of notional extension. Therefore, the death was employment injury within the meaning of Section 2(8) of Act. In the case of Sathybhama v. E.S.I. Corpn, a woman employee while returning home was hit by a scooter on public road in front of the factory gate. It was held that theory of notional extension cannot be reduced to a mathematical formula of distance and time and that the decision would be dependent on the facts and circumstances of each case. In the present case considering both the point of time and also that of distance the doctrine of notional extension shall apply and the injury is an employment injury. In the case of Sheela v. E.S.I. Corpn., an employee of M/s. Electronic Product of India left his house to join his duties at the establishment. He died at bus-stop while waiting for the local bus. It was held that the employee died while he was going to his place of work and hence, the theory of notional extension will apply and the death occurred in the course of employment. Through the above-mentioned cases it can be inferred that it is not vital to establish that the injury caused due to an accident occurred on the very boundaries of the establishment. The place where the injury was caused need not be necessarily within the zone until the place comes under the zone that is deemed to be the zone of the establishment by recourse to the doctrine of notional extension which has been evolved with the aim to do both social and substantial justice to the workmen for whose enhancement the beneficial legislation partaking of the character of social insurance has been enacted.

Despite giving its opinion on numerous instances, the Supreme Court deliberately abstained from defining or quantifying the physical distance to ascertain the zone of notional extension. It has left the same to the competent authority to undertake that exercise and conclude as to whether the accident occurred within the zone of notional extension. The formula is flexible and elastic. It is in the light of the mandate of this legislation that is enacted for protecting a workman who sustains employment injury, that notional extension theory must be applied. There are some more substantial considerations that must be considered in applying the notional extension theory articulated by the Supreme Court. The wider interpretation given by judiciary to the doctrine of notional extension covered the areas of employment which were initially not under the ambit of the Act.

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