PROJECT WORK

DOCTRINE OF NOTIONAL EXTENSION

SUBMITTED TO: SUBMITTED BY:

MR. SUGATO MUKERJEE SUNIL SHARMA

ASSISTANT PROFESSOR L/1557

SCHOOL OF LAW SCHOOL OF LAW

Doctrine Of Notional Extension

Introduction
The principal behind compensation to theinjured worker under the Employee’s
StateInsurance Act 1948 and Workmen’s Compensation Act, 1923 is consideredaccording to
the Doctrine of NotionalExtension. This doctrine throws light on thecourse of employment of
a worker.Section 3(1) Workmen’s Compensation Act, 1923 provides that the injury must be
caused to workmanby an accident arising out of and in the course of employment.
Employment does not necessarily endswhen the tool down signal is given or when the
workman leaves the actual workshop. There is a notional extension at both the entry and exit
timeand space. As employment may end or may beginnot only when the employee begins to
work orleaves his tools but also when he used the means of access and egress to and from the
place of employment.

As a rule, the employment of a workman does not commence until he hasreached the place of
employment and does not continue when he has leftthe 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 toand in leaving the actual place of work.
There may be some reasonableextension in both time and place and a workman may be
regarded as inthe 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 theaccident arose out of and in the course of the
employment of a workman,keeping in view at all times this theory of notional
extension.Various judgments of Supreme court anddifferent high Courts have considered
theconcept of notional employment and said thatif the employee dies due to accident
whilegoing to work place from residence or whilereturning from work place to residence, as
anaccident arising out of and during the courseof employment and as such entitled
forcompensation in accordance with provisionsof the Workmen’s Compensation Act, 1923

DOCTRINE OF ADDED PERIL

•This doctrine is contrary to the doctrine of notion extension. While the doctrine of notional
extension benefits to the employee,the doctrine of added peril is for the benefit tothe
employer.
• It contemplates that if a workman while doinghis masters work undertakes to do
somethingwhich he is not ordinarily called upon to doand which involves extra danger he
cannothold his master liable for the risk arising there

•The doctrine of added peril is dis-entitled an injured workerfrom compensation on the

ground that he had taken a greaterrisk than he had been required by his employer to assume.

• Therefore, where the injury is not caused to workman by anaccident arising out of and in
the course of employment,he/she is not entitled to get any benefit or compensation under the
Employee’s State Insurance Act 1948 and theWorkmen’s Compensation Act, 1923 .

“If the requirement of the deceased to stay with the bus was integrally connected with the
efficiency of the service to be provided to the public by respondent no.1 and the deceased
was not present at the bus terminal with the bus in his nature as a member of the public by
choice, we see no reason why the doctrine of notional extension of the employment will not
be applicable”

Applying the 'doctrine of notional extension of the employment', the Supreme Court has
ordered employers to pay compensation to the legal heirs of a bus driver who had died in an
accident while he was coming down the roof of the bus after having his meals. "Merely
because the deceased was coming down the roof of the bus after having his meal, cannot be
considered in isolation and interpreted so myopically to hold that he was off duty and
therefore would not be entitled to compensation," the bench comprising Justice Arun Mishra
and Justice Navin Sinha said.

appellants are the legal heirs of the deceased aggrieved by the rejection of their claim for
compensation under the Employee’s Compensation Act, 1923 as amended by the Workmen’s
Compensation (Amendment) Act, 2009 (hereinafter referred to as ‘the Act’). The deceased
was a bus driver under respondent no.1. He fell off the roof of the bus accidentally and died.

Learned counsel for the appellants submits that the deceased suffered an accidental death in
the course of, and arising out of the employment, evident from the deposition of PW-

Ajay Singh Chauhan. The denial of compensation under the Act to the appellants suffers
from grave misappreciation of facts and the evidence available on record. The nature of duty
performed by the deceased required him to be with the bus twenty-four hours, failing which
the employer’s requirement could not be fulfilled. The presence of the deceased on the bus
was by compulsion, and not by choice. PW-2 deposed that the deceased was required to be
with the bus and was therefore paid salary of Rs.6,000/- p.m. for twenty-four hours. Merely
because the accident took place while the deceased was coming down the roof of the bus after
having his meals, cannot be sufficient, sans the evidence, to hold that death did not arise out
of and was not in the course of employment. The facts of the case adequately reflect notional
extension of the duty, relying on General Manager, B.E.S.T. Undertaking, Bombay vs. Mrs.
Agnes, (1964) 3 SCR 930.

Learned counsel for the respondent contended that the dut of the deceased got over at 7:30
pm. He is stated to have fallen off the bus after duty hours at 8:30 pm. The deceased cannot
be said to have died in course of and arising out of the employment.

The court was considering the appeal of legal heirs of the deceased driver whose claim
petition under the Employee's Compensation Act, 1923 as amended by the Workmen's
Compensation (Amendment) Act, 2009, was rejected. Referring to evidence in this regard,
the bench said that the driver was present at the bus terminal and remained with the bus even
after arrival from Indore not by choice, but by compulsion and necessity, because of the
nature of his duties .

"If the deceased would have gone home every day after parking the bus and returned the next
morning, the efficiency of the timing of the bus service facility to the travelling public would
definitely have been affected, dependant on the arrival of the deceased at the bus stand from
his house. Naturally that would bring an element of uncertainty in the departure schedule of
the bus and efficiency of the service to the travelling public could be compromised.
Adherence to schedule by the deceased would naturally inure to the benefit of respondent
no.1 by enhancement of income because of timely service. It is not without reason that the
deceased would not go home for weeks as deposed by the appellant," the bench said. The
court said that there was a clear nexus between the accident and the employment to apply the
doctrine of "notional extension". "If the requirement of the deceased to stay with the bus was
integrally connected with the efficiency of the service to be provided to the public by
respondent no.1 and the deceased was not present at the bus terminal with the bus in his
nature as a member of the public by choice, we see no reason why the doctrine of notional
extension of the employment will not be applicable," the bench added. The bench also
directed the Workmen's Compensation Commissioner to calculate compensation payable to
the legal heirs.

The coverage of employees under Workman's Compensation Act 1923 has enlarged after the
amendments carried out in 2009. The name of the Act stands amended to Employees
Compensation Act. The earlier law covered only workmen. Now all employees are covered
irrespective of the wages drawn by them provided they belong to categories mentioned in
schedule II of the Act.

As per section 3(1), an employer is liable to pay compensation if a personal injury is caused
to an employee by accident arising out of and in the course of his employment. Thus the
three tests are:

1. There should be accident

2. The accident should be arising out of and in the course of employment.

3. The accident should result in disability, whether temporary or permanent; partial or total;
or death.

The words 'arising out of and in the course of his employment' have been clarified in several
judgments by Hon'ble Supreme Court of India. It has been held that if there is a casual
connection between place of accident and place of work, then the compensation is payable
for disablement or death as per provisions of the 'Employee's Compensation Act. These
interpretations have come to be known as 'doctrine of notional extension of work place'.
These judgements are being subjected to different interpretations by different people. In my
view, as the law has not been amended, incorporating Hon'ble Supreme Court's rulings, there
is no change in section 3(1).

There is issue of application of ratio of judgement to similarly placed cases. We have to keep
in mind the difference in judgements in rem and personam. Only the portion dealing with
'casual connection with place of work for eligibility to get compensation' can be taken as
judgement in rem. The award of compensation in each individual case is judgement in
personam. It is for Commissioner Employee's Compensation, or other judicial forums to
examine each case regarding 'casual connection with place of work' and order payment of
compensation. Payment of compensation need not be automatic.

However if the 'casual connection with place of work' gets defined by the Employee's
Compensation Act, through a suitable amendment, by legislature, then Executive is to
determine relationship between place of accident and place of work. The doctrine is not law.I
will like to be corrected if I am wrong.

Recently the Supreme Court of India has given clarity to the theory of notional extention in
the case of Manju Sarkar and others Vs Mabish Miah(2014 LLR 854). The facts are: The
driver Sajal Sarkar was driving the truck of FCI. After completion of his duties and handing
over the key at FCI godown located in Dharma Nagar, he went out in search of a mechanic,
for repairing the truck. During that point of time, he met with a road accident and died. The
question arose whether accident caused to Sajal Sarkar would amount to an accident in the
course of and out of employment.

2. In the view of Supreme Court it is so. “According to the appellants, Sajal Sarkar on
reaching Dhamanagar noticed some mechanical trouble in the truck and he got down to
make arrangement for repairing the same and in the night he met with an accident. What is
relevant is as to whether Sajal Sarkar continued to be in course of employment under
respondent nos1 and at the time of sustaining injuries in the accident culminating in his death.
Sajal Sarkar was at Churaibari, Dharmanager only on account of his employment as driver of
the truck and there he met with the road accident.” “As rightly contended by learned counsel
appearing to the appellants there is a notional extension in the present case also and we would
therefore, hold that Sajal Sarkar met with the road accident in the course of his employment.”

3. Therefore, strictly speaking, the sphere of employment does not end at a particular time or
a particular place, but extends beyond that, provided it has nexus to employment.
There was no proximity between the death and discharge of duties. The deceased cannot be
said to have been on duty while he was eating food on the roof of the bus by choice.

5. We have considered the submissions on behalf of the parties. The deceased, aged around
42 years, was the driver of the public bus belonging to respondent no.1. He met an accidental
death on 18.07.2010 at the Burhanpur bus stand while coming down the roof of the bus of
which he was a drive, after eating his meal. The salary of the deceased at the time of death
was determined by the Tribunal at Rs.4,275/- per month while dismissing the claim case.

6. The deceased was required to drive the public bus daily, ferrying passengers from Indore
to Burhanpur and back from Burhanpur to Indore. The travelling time in one direction was
approximately 5 hours, according to PW-2. The bus ferried passengers from Burhanpur at
6:30 AM and reached Indore at about 11:00 AM. The return journey would commence from
Indore at 3:00 PM and terminate at Burhanpur on or after7:30PM. According to PW-2,
because of the nature of their duty,

the deceased and the conductor of the bus, were required to remain with the bus twenty-four
hours. The appellants also deposed that because of the nature of his duty, the deceased at
times, would not come home for as long as a week. On the fateful day the deceased had
returned from Indore to the Burhanpur terminus at about 7:30 pm. He met an accidental death
while he was coming down the roof of the bus after having his meal at about 8:30 pm. The
short question for consideration is whether the death occurred during the course of and
arising out of the employment. In the facts of the case, and the evidence available, it is
evident that the deceased was present at the bus terminal and remained with the bus even
after arrival from Indore not by choice, but by compulsion and necessity, because of the
nature of his duties. The route timings of the bus required the deceased to be readily available
with the bus so that the passenger service being provided by respondent no. 1 remained
efficient and was not affected. If the deceased would have gone home every day after parking
the bus and returned the

next morning, the efficiency of the timing of the bus service facility to the travelling public
would definitely have been affected, dependant on the arrival of the deceased at the bus stand
from his house. Naturally that would bring an element of uncertainty in the departure
schedule of the bus and efficiency of the service to the travelling public could be
compromised. Adherence to schedule by the deceased would naturally inure to the benefit of
respondent no.1 by enhancement of income because of timely service. It is not without reason
that the deceased would not go home for weeks as deposed by the appellant. Merely because
the deceased was coming down the roof of the bus after having his meal, cannot be
considered in isolation and interpreted so myopically to hold that he was off duty and
therefore would not be entitled to compensation.

8. The deceased did not remain at the bus stand living in the bus as a member of the public or
by choice after arrival at Burhanpur till departure for Indore the next morning. It is not the
case of the respondent that the deceased was at liberty to proceed home and return at leisure
the next morning after parking the bus at the Burhanpur bus stand at night. The Act being a
welfare legislation, will have to be interpreted in the facts of each case and the evidence
available, to determine if the

accident took place in the course of employment and arose out the employment. In Agnes
(supra) it was observed :­“...The man’s work does not consist solely in the task which he is
employed to perform. It includes also matters incidental to that task. Times during which
meals are taken, moments during which the man is proceeding towards his work from one
portion of his employers’ premise to another, and periods of rest may all be included.”

9. In the facts of the present case and the nature of evidence, there was a clear nexus between
the accident and the employment to apply the doctrine of “notional extension” of the
employment considered in Agnes (supra) as follows:-

“It is now well­settled, 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 time this theory of notional extension.”

If the requirement of the deceased to stay with the bus was integrally connected with the
efficiency of the service to be provided to the public by respondent no.1 and the deceased
was not present at the bus terminal with the bus in his nature as a member of the public by
choice, we see no reason why the doctrine of notional extension of the employment will not
be applicable.

11. Agnes (supra) has been followed in Manju Sarkar and Ors. vs. Mabish Miah and Ors.,
(2014) 14 SCC 21, observing as follows:

“As rightly contended by the learned counsel appearing for the appellants there is a notional
extension in the present case also and we would, therefore, hold that Sajal Sarkar met with
the road accident in the course of his employment under Respondents 1 and 2. The courts
below have misdirected themselves while dealing with this question and the finding rendered
by them is perverse and unsustainable.”

12. The appellants are held to have wrongly been denied compensation under the Act. The
impugned orders are accordingly set aside. The Workmen’s Compensation Commissioner,
Labour Court, Khandwa has already determined the salary of the deceased at the time of
death as Rs.4,275/- per month and which is upheld. The compensation payable to the
appellants shall be calculated on the aforesaid basis under Section 4 along with default
penalty under Section 4A and costs to be awarded under Section 26 of the Act. The quantum
of compensation shall be finally computed after hearing the parties within one month from
the date of receipt and/or production of a copy of this order before the Commissioner.
Respondent no.2 shall pay the determined amount to the appellants within three weeks from
the date of such computation by the Tribunal.

18 Consideration of proposals for setting up of Unit in a Special Economic Zone. —

(1) The Approval Committee may approve or approve with modification or reject a proposal
placed before it under sub-rule (2) of rule 17, within fifteen days of its receipt: Provided that
where the approval is to be granted by the Board in terms of sub-rule (3) of rule 17, the Board
shall approve or approve with modification or reject such proposal within forty-five days of
its receipt: Provided further that the Approval Committee or the Board, as the case may be,
shall record the reasons, in writing, where it approves a proposal with modifications or where
it rejects a proposal and Development Commissioner by order shall communicate such
reasons to the person making the proposal.

(2) The Approval Committee shall approve the proposal if it fulfils the following
requirements, namely:—

(i) the proposal meets with the positive net foreign exchange earning requirement as provided
in rule 53;

(ii) availability of space and other infrastructure support applied for, is confirmed by the
Developer in writing, by way of a provisional offer of space; Provided that the Developer
shall enter into a lease agreement and give possession of the space in the Special Economic
Zone to the entrepreneur only after the issuance of Letter of Approval by the Development
Commissioner: [Provided further that a copy of the registered Lease Deed shall be furnished
to the Development Commissioner concerned within six months from the issuance of the
Letter of Approval and failure to do so, the Approval Committee may take action to withdraw
the Letter of Approval after giving an opportunity of being heard;]

(iii) the applicant undertakes to fulfil the environmental and pollution control norms, as may
be applicable;

(iv) the applicant submits proof of residence, namely, passport or ration card or driving
licence or voter identity card or any other proof of the proprietor or the partners of
partnership firms or Directors of the Company, as the case may be, to the satisfaction of
Development Commissioner;

(v) the applicant submits the Income-tax returns, along with annexures, of the Proprietor or
Partners, or in the case of a company, audited balance sheet for the last three years.

(3) The proposal shall also fulfil the following sector specific requirements, namely:— (a)
export of high-grade iron ore, that is sixty-four per cent. Fe and above, except iron ore of Goa
origin and Redi origin, which would be subject to approval of Board;

(b) no sub-contracting or job work of polyester yarn shall be permitted in Domestic Tariff
Area or in Export Oriented Unit or Units in other Special Economic Zone:
Provided that this restriction shall not apply to the Units which intend to send the fabric,
made by them out of polyester or texturised yarn, for sub-contracting but the third party
exports shall not be permitted;

(4) No proposal shall be considered for:—

(a) recycling of plastic scrap or waste: Provided that extension of Letter of Approval for an
existing Unit shall be decided by the Board;

(b) enhancement of the approved import quantum of plastic waste and scrap beyond the
average annual import quantum of the unit since its commencement of operation to the
existing Units;

(c) reprocessing of garments or used clothing or secondary textile materials and other
recyclable textile materials into clipping or rags or industrial wipers or shoddy wool or yarn
or blankets or shawls: Provided that extension of Letter of Approval for an existing Unit shall
be decided by the Board;

(d) import of other used goods for recycling: Provided that extension of Letter of Approval
for an existing Unit shall be decided by the Board: Provided further that reconditioning,
repair and re-engineering may be permitted subject to the condition that exports shall have
one to one correlation with imports and all the reconditioned or repaired or re-engineered
products and scrap or remnants or waste shall be exported and none of these goods shall be
allowed to be sold in the Domestic Tariff Area or destroyed;

(e) Export of Special Chemicals, Organisms, Materials, Equipment and Technologies unless
it fulfils the conditions indicated in the Import Trade Control (Harmonized System)
Classifications of export and import items;

(f) if there is any instance of violation of law or public policy by the promoters, having a
bearing on the merits of the proposal.

[***]

(5) The Units in Free Trade and Warehousing Zones or units in Free Trade and Warehousing
Zone set up in other Special Economic Zone, shall be allowed to hold the goods on account
of the foreign supplier for dispatches as per the owner's instructions and shall be allowed for
trading with or without labelling, packing or repacking without any processing: Provided that
refrigeration for the purpose of storage and assembly of Completely Knocked Down or Semi
Knocked Down kits shall also be allowed by the Free Trade and Warehousing units
undertaking the said activities: Provided further that these Units may also re-sell or re-invoice
or re-export the goods imported by them: Provided also that all transactions by a Unit in Free
Trade and Warehousing Zone shall only be in convertible foreign currency.

(6) Units may also be setup for providing services or manufacturing services to Overseas
Entities subject to following conditions, namely:—

(a) Capital goods, raw materials including consumables sub-assemblies, components, semi-
finished goods shall be supplied by the Overseas Entity free of cost;

(b) Capital goods for setting up such facilities may also be supplied on loan or lease basis,
provided the notional value of such capital goods shall be taken into account for calculation
of Net Foreign Exchange Earnings under rule 53.

(c) finished goods shall be exported out of the country or transferred to the Customs Bonded
Warehouse to be maintained by the Overseas entity: Provided that any supplies of finished
goods shall be as per the instructions of the Overseas entity.

(d) the Unit shall receive the consideration for its manufacturing services in convertible
foreign exchange directly from the said overseas entity;

(e) in case the said manufacturing facility is used by the Unit for carrying out production on
its own account, separate accounts shall be maintained for the manufacturing and service
activity.

Explanation. —“Overseas Entity” means a non-resident or a person of foreign origin and

includes a company not incorporated in India. ___________

1 Vide G.S.R. 54(E), dated 10th February, 2006, published in the Gazette of India, Pt. II, Sec.
3(i), dated 10th February, 2006 and subsequently amended vide G.S.R. 470(E), dated 10-8-
2006 and S.O. 393(E), dated 16-3-2007.

(2) Subs. by G.S.R. 72(E), dated 3rd February, 2009, for the second proviso (w.e.f. 3-2-2009
). The second proviso, before substitution, stood as under: “Provided further that a copy of
the registered lease deed shall be furnished to the Development Commissioner concerned
within six months from the issuance of the Letter of Approval;”.
(3) Clause (g) omitted by G.S.R. 1744(E), dated 12th October, 2007 (w.e.f. 12-10-2007 ).
Earlier clause (g) was inserted by G.S.R. 470(E), dated 10th August, 2006 (w.e.f. 10-8-2006
Clause (g), before omission by G.S.R. 1744(E), stood as under: “(g) the use of any plant or
machinery previously used for any purpose in Domestic Tariff Area.”.