If an employee met accident while going home from factory after duty...... any liability from Employer end and some said that COMING AND GOING FROM/FOR DUTY also comes under duty... IS it true sir?
From India, Hyderabad
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From India, Hyderabad
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COMING AND GOING FROM/FOR DUTY is also comes under the liability of Employer...If any body attains death while going from factory after duty hours... is there any employer liability implies?
From India, Hyderabad
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From India, Hyderabad
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Employee Compensation Act provides for compensation to be given in case of death on duty. Duty ends when the employee finishes his work and proceeds for home. So, in case of death during travel to or from home, the employer is not liable for compensation. The rules are different for those covered under ESIC.
From India, Mumbai
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2508From India, Mumbai
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Except for terminal benefits, no law binds an employer for any liability towards the employee for any incident that happens before and after duty hours. If any employer, out of sympathy, prefers to pay any ex-gratia amount, that can be considered his gracefulness.
From India, Delhi
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From India, Delhi
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Excepting terminal benefits, no law binds an employer for any liability towards the employee for any incident that happens before and after duty hours. If any employer, out of sympathy, prefers to pay any ex-gratia amount, that can be considered as a gesture of gracefulness.
From India, Delhi
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From India, Delhi
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The rule position quoted by Saswata is in line with the legislation. It is not out of sympathy !! Dr.D.NAGESHWAR RAO
From United States, Mountain View
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From United States, Mountain View
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The concept of notional extension of work applies here. There are many court judgments which endorse the view that the time an employee commences his journey from home for work until the time he reaches back home after work on a normal route, which he takes daily, is considered to be a notional extension of work and is considered on duty.
From United+States, San+Francisco
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From United+States, San+Francisco
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As stated by Anonymous the theory of the notional extension of the place of employment has to be applied to the facts of the case. This theory has got its own nuances which can not be explained here
From India, Madras
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From India, Madras
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Concept of notional extension in employee compensation act will apply only if the transport is provided or controlled by the employer. If the employee travels on his own and by transport independent of the employer in all aspects, the employer is not liable to pay compensation.
From India, Mumbai
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From India, Mumbai
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Notional Extension of Work: A Legal Perspective
The concept of notional extension of work applies in all cases where an employee uses the normal route in a regular mode of transport and is not restricted to official transport. In one of the court cases, an employee used to walk to his work and return on the same route. In the process, he used to walk across the railway line. During one of his walks back to his house, the employee was hit by a train and died. Crossing the railway line is illegal. However, the court ruled that since it was his regular route and walking across was his regular mode, the concept of notional extension of work applies.
Anybody who has completed their Master's in Human Resources would know this concept, as one chapter is dedicated to it and extensively covered in class.
From United+States, San+Francisco
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The concept of notional extension of work applies in all cases where an employee uses the normal route in a regular mode of transport and is not restricted to official transport. In one of the court cases, an employee used to walk to his work and return on the same route. In the process, he used to walk across the railway line. During one of his walks back to his house, the employee was hit by a train and died. Crossing the railway line is illegal. However, the court ruled that since it was his regular route and walking across was his regular mode, the concept of notional extension of work applies.
Anybody who has completed their Master's in Human Resources would know this concept, as one chapter is dedicated to it and extensively covered in class.
From United+States, San+Francisco
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Notional Extension of Work
Notional extension of work can apply only in rare cases depending upon the nature, characteristics, and circumstances of the case. That cannot be a general rule.
The instance quoted by the anonymous author is surprising, where he has tried to compare walking with transport, especially when crossing the railway track. Moreover, there is a marked difference between walking and transport. A vehicle can meet with an accident due to various reasons, but a person walking alongside a railway track is expected to take precautions to avoid being hit by a train. More so, if he walks across the railway line without taking due precautions, it can only be treated as a suicidal attempt if he crosses just before a running train.
From India, Delhi
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Notional extension of work can apply only in rare cases depending upon the nature, characteristics, and circumstances of the case. That cannot be a general rule.
The instance quoted by the anonymous author is surprising, where he has tried to compare walking with transport, especially when crossing the railway track. Moreover, there is a marked difference between walking and transport. A vehicle can meet with an accident due to various reasons, but a person walking alongside a railway track is expected to take precautions to avoid being hit by a train. More so, if he walks across the railway line without taking due precautions, it can only be treated as a suicidal attempt if he crosses just before a running train.
From India, Delhi
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Important Judgment on Employment Liability
Please read the judgment of the Honourable Supreme Court of India in Regional Director ESI vs. Francis DeCosta, delivered on 5-5-1992. This judgment is under the Employees State Insurance Act. In this judgment, the Honourable Supreme Court explained in detail what is meant by "arising out of and in the course of employment." This judgment is available on the website of indiakanoon.org and is followed by other subordinate courts. If other contributors could cite any judgment in which the above-mentioned judgment had been overruled, I would be much obliged to them.
With regards,
From India, Madras
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Please read the judgment of the Honourable Supreme Court of India in Regional Director ESI vs. Francis DeCosta, delivered on 5-5-1992. This judgment is under the Employees State Insurance Act. In this judgment, the Honourable Supreme Court explained in detail what is meant by "arising out of and in the course of employment." This judgment is available on the website of indiakanoon.org and is followed by other subordinate courts. If other contributors could cite any judgment in which the above-mentioned judgment had been overruled, I would be much obliged to them.
With regards,
From India, Madras
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The answer depends on the facts and circumstances as to how the death occurred while returning home. The principle in this context is that the accident which gave rise to the claim for compensation must have some relation to the workman's employment and must be due to risk incidental to the employment, as distinguished from risk to which all members of the public alike were exposed.
From India, Kochi
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From India, Kochi
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Clarification on Notional Employment and Employer Liability
Reading between the lines can often lead to confusion and incorrect actions. Partial knowledge is always harmful to both the person applying it and the one it is applied to in an official context.
While the concept of notional employment may be included in HR textbooks, it requires correct interpretation if advice is to be given to others. You referred to a link but it seems you did not read and interpret it properly before posting your observation. You are advised to re-read the full paragraph you referred to, where it clearly states at the end: "The employment begins... and it does not come to an end... back home, WITH THE ONLY EXCEPTION THAT IF THE EMPLOYEE IS ON THE ROAD, IN A PUBLIC PLACE, OR IN PUBLIC TRANSPORT, HE IS NOT IN THE COURSE OF EMPLOYMENT AND HAS TO BE TREATED LIKE ANY OTHER MEMBER OF THE PUBLIC."
Furthermore, a sentence in the text also states, "the expression is not to be regarded as confined to the nature of employment AND APPLIES EQUALLY TO ALL CONDITIONS, OBLIGATIONS, AND INCIDENTS OF EMPLOYMENT."
You may like to know that in that case, the employee was a Railway employee working in the Works Manager, Carriage, and Wagon Workshop, where the nature of his employment conditions, obligations, and incidents of employment compelled him to cross the railway line both ways while coming and going to duty, as railway workshops are always situated between the rail lines, not on roads.
Thus, your response tends to convey a misleading message to HR professionals. Your statement that "court judgments endorse the view that the time an employee commences his journey from home for work till the time he reaches back home after work on a normal route is considered a notional extension of work and is considered on duty," is incorrect as you have not quoted any court judgment confirming that if an employee is on the road, in a public place, or in public transport, he should be considered in the course of employment while commuting. However, if you find any such court judgment, you are welcome to quote it.
Regards, Mr Anonymous
From India, Delhi
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Reading between the lines can often lead to confusion and incorrect actions. Partial knowledge is always harmful to both the person applying it and the one it is applied to in an official context.
While the concept of notional employment may be included in HR textbooks, it requires correct interpretation if advice is to be given to others. You referred to a link but it seems you did not read and interpret it properly before posting your observation. You are advised to re-read the full paragraph you referred to, where it clearly states at the end: "The employment begins... and it does not come to an end... back home, WITH THE ONLY EXCEPTION THAT IF THE EMPLOYEE IS ON THE ROAD, IN A PUBLIC PLACE, OR IN PUBLIC TRANSPORT, HE IS NOT IN THE COURSE OF EMPLOYMENT AND HAS TO BE TREATED LIKE ANY OTHER MEMBER OF THE PUBLIC."
Furthermore, a sentence in the text also states, "the expression is not to be regarded as confined to the nature of employment AND APPLIES EQUALLY TO ALL CONDITIONS, OBLIGATIONS, AND INCIDENTS OF EMPLOYMENT."
You may like to know that in that case, the employee was a Railway employee working in the Works Manager, Carriage, and Wagon Workshop, where the nature of his employment conditions, obligations, and incidents of employment compelled him to cross the railway line both ways while coming and going to duty, as railway workshops are always situated between the rail lines, not on roads.
Thus, your response tends to convey a misleading message to HR professionals. Your statement that "court judgments endorse the view that the time an employee commences his journey from home for work till the time he reaches back home after work on a normal route is considered a notional extension of work and is considered on duty," is incorrect as you have not quoted any court judgment confirming that if an employee is on the road, in a public place, or in public transport, he should be considered in the course of employment while commuting. However, if you find any such court judgment, you are welcome to quote it.
Regards, Mr Anonymous
From India, Delhi
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I appreciate the views of Shri P. Venu that "the answer depends on the facts and circumstances as to how the death occurred while returning home."
Even in the judgment referred to by Shri V. Harikrishnan, the Supreme Court judges very clearly observed, "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."
So, there is no scope for any liability from the employer's end for the employee coming and going for duty unless the conditions, obligations, and incidents of employment expect so on the part of the employee.
From India, Delhi
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Even in the judgment referred to by Shri V. Harikrishnan, the Supreme Court judges very clearly observed, "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."
So, there is no scope for any liability from the employer's end for the employee coming and going for duty unless the conditions, obligations, and incidents of employment expect so on the part of the employee.
From India, Delhi
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Dear All,
Please find attached a copy of the Gazette Notification wherein the ESI Act was amended in 2010 with the insertion of Sec 51 E. This section provides coverage for accidents to an employee while commuting to work or returning home after work as an employment injury.
Regards,
N. Nataraajhan
Sakthi Management Services
Hp: +91 94835 17402
Email: natraj@sakthimanagement.com
From India, Bangalore
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Please find attached a copy of the Gazette Notification wherein the ESI Act was amended in 2010 with the insertion of Sec 51 E. This section provides coverage for accidents to an employee while commuting to work or returning home after work as an employment injury.
Regards,
N. Nataraajhan
Sakthi Management Services
Hp: +91 94835 17402
Email: natraj@sakthimanagement.com
From India, Bangalore
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Dear Mr. Dhingra,
There appears to be some difference between the posts you have made on the previous days, especially your first post in this thread, and the last post you have made today. Which post has to be taken as the correct legal position? I would request you to advise.
With regards,
From India, Madras
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There appears to be some difference between the posts you have made on the previous days, especially your first post in this thread, and the last post you have made today. Which post has to be taken as the correct legal position? I would request you to advise.
With regards,
From India, Madras
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The Principle of Employer's Liability During Commute
The principle on this question has been laid down by the Apex Court in the decision Saurashtra Salt Manufacturing vs Bai Valu Raja And Ors. AIR 1958 SC 881, (1958) IILLJ 249 SC (http://indiankanoon.org <link updated to site home>).
"7. As a rule, the employment of a workman 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. It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some 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 facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension.
"8. It is unnecessary for the purposes of this appeal to refer to the various decisions in England and in India explaining the aforesaid theory because even if on such a basis a workman may be regarded as being in the course of his employment at point B either while on his way to the salt works or returning from it, the question for our decision is whether he was still in the course of his employment when he was on his journey between points A and B of the map, Ext-35. While the case was in the High Court, the attention of the learned judges was drawn to the failure of the Commissioner for Workmen's Compensation to examine witnesses to prove an alleged arrangement between the appellant and the Kharvas (ferry-walas) for the carrying of the workmen of the appellant by boat across the creek to enable them to be ferried to and from the salt works. The learned Judges of the High Court at first were inclined to order a remand for the recording of this evidence, but, having regard to the view which they took of the recent decisions of the House of Lords in England, they thought it unnecessary to have such evidence recorded. In their opinion, on the material as already on the record, it must be held that the accident arose out of and in the course of the employment of the deceased workmen. In this Court, as already stated, we considered it necessary to have evidence taken in this connection and findings recorded thereon. The findings, on the evidence so recorded, are quite clear that there was no arrangement between the appellant and the Kharvas to ferry to and from the salt works, across the creek, any workman of the appellant. According to the evidence, workmen of the salt works are charged by the Kharvas when they cross the creek in their boats. The only concession made by them on their own account is not to make such a charge in the case of any person who is a Kharva - a fellow caste man. It is also clear from the evidence on the record, both before and after remand, that the boats ferried across the creek are used by the public, every one of whom has to pay the charge for being ferried across the creek with the exception of a person of the Kharva caste. To reach point A on the map, a workman has to proceed in the town of Porbander via a public road. A workman then uses at point A a boat, which is also used by the public, for which he has to pay the boatman's dues, to go to point B. From point B to the salt works, there is an open sandy area 450 to 500 feet long and 200 to 250 feet wide. This sandy area is also open to the public. From this sandy area, there is a footpath going to the salt jetty, point C, and a foot-track going to the salt works, point D. There is no question that the foot-track going to the salt works is a public way. The footpath from the sandy area to the salt jetty, point C, may or may not be used by the public. For the purpose of this case, it may be assumed that a workman must necessarily use that footpath if he has to go to the salt jetty and from there to the various salt pans and salt reservoirs within the area of the salt works. It is well settled that when a workman is on a public road or a public place or on public transport, he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends up to point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment, and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident, the appellant cannot be made liable."
From India, Kochi
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The principle on this question has been laid down by the Apex Court in the decision Saurashtra Salt Manufacturing vs Bai Valu Raja And Ors. AIR 1958 SC 881, (1958) IILLJ 249 SC (http://indiankanoon.org <link updated to site home>).
"7. As a rule, the employment of a workman 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. It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some 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 facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension.
"8. It is unnecessary for the purposes of this appeal to refer to the various decisions in England and in India explaining the aforesaid theory because even if on such a basis a workman may be regarded as being in the course of his employment at point B either while on his way to the salt works or returning from it, the question for our decision is whether he was still in the course of his employment when he was on his journey between points A and B of the map, Ext-35. While the case was in the High Court, the attention of the learned judges was drawn to the failure of the Commissioner for Workmen's Compensation to examine witnesses to prove an alleged arrangement between the appellant and the Kharvas (ferry-walas) for the carrying of the workmen of the appellant by boat across the creek to enable them to be ferried to and from the salt works. The learned Judges of the High Court at first were inclined to order a remand for the recording of this evidence, but, having regard to the view which they took of the recent decisions of the House of Lords in England, they thought it unnecessary to have such evidence recorded. In their opinion, on the material as already on the record, it must be held that the accident arose out of and in the course of the employment of the deceased workmen. In this Court, as already stated, we considered it necessary to have evidence taken in this connection and findings recorded thereon. The findings, on the evidence so recorded, are quite clear that there was no arrangement between the appellant and the Kharvas to ferry to and from the salt works, across the creek, any workman of the appellant. According to the evidence, workmen of the salt works are charged by the Kharvas when they cross the creek in their boats. The only concession made by them on their own account is not to make such a charge in the case of any person who is a Kharva - a fellow caste man. It is also clear from the evidence on the record, both before and after remand, that the boats ferried across the creek are used by the public, every one of whom has to pay the charge for being ferried across the creek with the exception of a person of the Kharva caste. To reach point A on the map, a workman has to proceed in the town of Porbander via a public road. A workman then uses at point A a boat, which is also used by the public, for which he has to pay the boatman's dues, to go to point B. From point B to the salt works, there is an open sandy area 450 to 500 feet long and 200 to 250 feet wide. This sandy area is also open to the public. From this sandy area, there is a footpath going to the salt jetty, point C, and a foot-track going to the salt works, point D. There is no question that the foot-track going to the salt works is a public way. The footpath from the sandy area to the salt jetty, point C, may or may not be used by the public. For the purpose of this case, it may be assumed that a workman must necessarily use that footpath if he has to go to the salt jetty and from there to the various salt pans and salt reservoirs within the area of the salt works. It is well settled that when a workman is on a public road or a public place or on public transport, he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends up to point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment, and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident, the appellant cannot be made liable."
From India, Kochi
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