Employment Injury and Occupational Disease

Section 34(2), rescue and emergency. An accident happening to an employee in or about any premises at which he is for the time being employed for the purposes of his employer's trade or business shall be deemed to arise out of and in the course of his employment, if it happens while he is taking steps, on an actual or supposed emergency at those premises, to rescue, succour or protect persons who are, or are thought to be or possibly to be, injured or imperilled, or to avert or minimise serious damage to property.

Note "supposed emergency". A worker who runs towards what he reasonably thinks is a fire is protected even if there was no fire.

Section 34(3), commuting. This is the important one. An accident occurring to an employee while commuting from his residence to the place of employment for duty, or from the place of employment to his residence after performing duty, shall be deemed to have arisen out of and in the course of employment if nexus between the circumstances, time and place in which the accident occurred and the employment is established.

Section 34(4), employer provided transport. An accident happening while an employee is, with the express or implied permission of his employer, travelling as a passenger by any vehicle to or from his place of work shall be deemed to arise out of and in the course of employment, notwithstanding that he is under no obligation to his employer to travel by that vehicle, if:

• (a) the accident would have been deemed so to arise had he been under such an obligation; and
• (b) at the time of the accident the vehicle (i) is being operated by or on behalf of his employer, or of some other person by whom it is provided under arrangements made with his employer, and (ii) is not being operated in the ordinary course of public transport service.

The Explanation provides that "vehicle" includes a vessel and an aircraft.

What section 34(3) does to the old commuting rule

Before the Code the commuting worker had no statutory provision at all. He had only the judge made doctrine of notional extension, and the leading case shows how narrow it was.

Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, AIR 1958 SC 881.

Facts. Workers going home from a salt works crossed a creek by public boat. One capsized in bad weather in June 1952 and several were drowned. The boats belonged to nobody connected with the works, and the landing patch and footpath were open to anyone. So the men died on a public route, on a journey that was neither at the works nor at home. The facts are set out in full in [Employer's Liability for Compensation].

Held. The appeal was allowed and the award set aside. As a rule employment does not begin until the worker reaches the place of employment and does not continue after he leaves it, the journey to and from work being excluded. That rule is subject to the theory of notional extension of the employer's premises, which may extend the employment reasonably in both time and place. But a worker on a public road, in a public place or on public transport is there as any other member of the public, unless the very nature of the employment requires him to be there. Even assuming the notional extension reached the works' own boundary, it could not be stretched across the creek: once the worker left the far bank by boat, or had left the town side and not yet reached the far bank, he was not in the course of his employment.

Why it matters here. It is the leading Indian statement of notional extension and of its limit, and it shows exactly what the commuting worker faced. But note the statute carefully. Saurashtra Salt was decided under the Workmen's Compensation Act 1923, which contained no provision about commuting at all. Section 34(3) of this Code now does. For Chapter IV, a commuting accident is deemed to arise out of and in the course of employment once nexus between the circumstances, time and place of the accident and the employment is established. The question is no longer whether the employer's premises can be stretched to reach the worker; it is whether a nexus can be shown. On the facts of Saurashtra Salt the workers were commuting home after performing duty by the usual and ordinary route, which is the kind of nexus section 34(3) contemplates.

Do not overstate this. Section 34(3) requires nexus to be established, so it is not an automatic cover for every journey, and the reasoning in Saurashtra Salt about public places remains useful in deciding whether nexus exists. What has changed is that there is now a statutory route where before there was only a doctrine.

Section 35: accidents while breaking the law

An accident shall be deemed to arise out of and in the course of employment notwithstanding that the employee is at the time acting in contravention of any law applicable to him, or of any orders given by or on behalf of his employer, or is acting without instructions from his employer, if:

• (a) the accident would have been deemed so to arise had the act not been done in contravention, or without instructions; and
• (b) the act is done for the purpose of and in connection with the employer's trade or business.

The principle is that disobedience does not by itself break the connection with the employment; departure from the employer's business does. A worker who takes a forbidden shortcut across the shop floor to fetch a tool is still working. A worker who leaves the premises on his own errand is not, and clause (b) is what separates them.

Section 36: occupational disease

Section 36(1), the presumption. The Third Schedule is in three Parts, and the qualifying period differs in each:

Where those conditions are met, the contracting of the disease shall, unless the contrary is proved, be deemed to be an "employment injury" arising out of and in the course of employment.

Section 36(2), everything else. Save as provided by sub-section (1), no benefit is payable in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of employment.

Section 36(3), a trap worth marking. The provisions of section 34(1) shall not apply to cases to which section 36 applies.

That last sub-section is easy to miss and it is exactly the sort of thing an examiner sets. The general presumption in section 34(1) is switched off for occupational disease cases, because section 36(1) supplies its own, more specific presumption. Applying both would double count.

The burden of proof, and how far inference can go

Sections 34 and 36 give the employee presumptions. They do not relieve him of proving the facts those presumptions rest on, and the leading authority on how far a tribunal may go in filling gaps is a case decided the other way.

Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mahommed Issak, AIR 1970 SC 1906.

Facts. A deck-hand who had complained of chest pain three days earlier went missing from a ship at night in December 1961. Nobody saw what happened to him. His dependant claimed, and the question was how much a tribunal may infer when the only proved facts are that a man was aboard and then was not. The facts are set out in full in [Employer's Liability for Compensation].

Held. The appeal was allowed and the Commissioner restored. To fall within the Act the injury by accident must arise both out of and in the course of the employment. "In the course of employment" means in the course of the work the employee is engaged to do and what is incidental to it. "Arising out of the employment" means that the injury resulted from some risk incidental to the duties of the service which, but for the duty owed to the employer, it is reasonable to believe the employee would not have suffered; the phrase extends not merely to the nature of the employment but to its conditions, obligations and incidents. The onus of proving both limbs lies on the applicant, though both may be inferred where the proved facts justify the inference. The Commissioner must not surmise, conjecture or guess, but may draw an inference such as would induce a reasonable person to draw it.

Why it matters here. It is the standard statement of the two limbs and of the burden, and it marks the line between a legitimate inference and a guess, which is the line every disputed injury claim is argued along. Note two things before using it. It was decided under the Workmen's Compensation Act 1923, and the worker's dependant lost, which is the opposite of how the case is usually described.

Section 37: the medical board and the disablement question

Section 37(1), what a "disablement question" is. Four questions are determined by a medical board constituted under the regulations, and together they are called the disablement question:

1. whether the relevant accident has resulted in permanent disablement;
2. whether the extent of loss of earning capacity can be assessed provisionally or finally;
3. whether the assessment of the proportion of loss of earning capacity is provisional or final;
4. in the case of a provisional assessment, the period for which it holds good.

Section 37(2), reference. A case for permanent disablement benefit is referred by the Corporation to a medical board. Where loss of earning capacity is assessed provisionally, it must be referred again not later than the end of the period taken into account by that provisional assessment.

Section 37(3) and (4), review. A decision may be reviewed at any time if the board is satisfied by fresh evidence that it was given in consequence of non-disclosure or misrepresentation of a material fact, whether or not fraudulent. An assessment may also be reviewed if there has been a substantial and unforeseen aggravation of the results of the injury, but the proviso permits that only where the board thinks substantial injustice would be done by not reviewing it.

Section 37(5), the time bars on review for aggravation. Except with the leave of a medical appeal tribunal, an assessment shall not be reviewed under sub-section (4) on an application made less than five years from its date, or six months in the case of a provisional assessment. On such a review the revised assessment may not take into account any period before the date of the application.

Section 37(6). On review the board may deal with the case in any manner it could on an original reference, including making a provisional assessment even though the assessment under review was final.

Section 37(7), appeal. Learn the structure. If the Insured Person or the Corporation is aggrieved by a decision of the medical board, it may appeal, in the manner and within the time prescribed by the Central Government, either:

• (i) to the medical appeal tribunal constituted under the regulations; or
• (ii) to the Employees' Insurance Court directly.

Two provisos bar the appeal. No appeal lies from an Insured Person who has applied for commutation of disablement benefit on the basis of the board's decision and received the commuted value. No appeal lies from the Corporation where it has paid the commuted value on the basis of that decision.

Clause (b) is the part students get wrong. Where the party appealed to the medical appeal tribunal rather than going straight to the Employees' Insurance Court, he has a further right of second appeal to the Employees' Insurance Court, in the manner and time prescribed by the appropriate Government. So the choice at the first step is between one appeal and two.

A worked example

Farid works at a chemical plant. Four things happen to him over three years.

1. He slips on the stairs inside the plant and breaks his wrist. The accident arose in the course of his employment, so section 34(1) presumes it arose out of it. The employer may lead evidence to the contrary but has none. It is an employment injury.

2. He is knocked down by a car on his usual route home, twenty minutes after his shift. Under the old law this would have been fought on notional extension, and Saurashtra Salt shows how hard it was. Under section 34(3) it is deemed to arise out of and in the course of employment if nexus between the circumstances, time and place and the employment is established. Returning to his residence after performing duty, on his usual route, shortly after his shift, is the paradigm case for that nexus.

3. He is hurt while pulling a colleague away from a leaking valve which turns out not to be dangerous. Section 34(2) deems this to arise out of and in the course of employment. He was on premises where he was employed, and he acted on an actual or supposed emergency to rescue or protect a person thought to be imperilled. That the emergency was not real does not matter.

4. He develops a lung disease listed in Part B of the Third Schedule as peculiar to his employment. If he has been in that employment for a continuous period of not less than six months, section 36(1) deems the contracting of the disease to be an employment injury unless the contrary is proved. Note that section 34(1) does not also apply, because section 36(3) switches it off.

Suppose instead the disease is not in any Part of the Third Schedule. Section 36(2) then applies: no benefit is payable for the disease unless it is directly attributable to a specific injury by accident arising out of and in the course of employment.

The medical board assesses him at forty per cent loss of earning capacity, provisionally, for two years, and he disagrees. He may appeal under section 37(7)(a), choosing between the medical appeal tribunal and the Employees' Insurance Court directly. If he chooses the tribunal, he keeps a second appeal to the Insurance Court under clause (b). If he takes the commuted value of the benefit first, both provisos bar him from appealing at all.

What this does NOT mean

Section 34(1) does not presume that an accident happened at work. It presumes only the second limb. The employee must still establish that the accident arose in the course of the employment.

The presumptions are not all equally strong. Section 34(1) is a presumption rebuttable by evidence to the contrary. Sections 34(2), 34(3), 34(4) and 35 are deeming provisions: once their conditions are met the conclusion follows. Section 36(1) is a deeming "unless the contrary is proved", so it sits between the two.

Section 34(4) does not cover the ordinary bus. Sub-clause (b)(ii) requires that the vehicle not be operated in the ordinary course of public transport service. It covers the employer's own transport, or transport provided under arrangements with him, and not a public bus the worker chose to take.

Section 35 does not protect every disobedient worker. Clause (b) requires the act to be done for the purpose of and in connection with the employer's trade or business.

A Third Schedule disease is not automatically compensable. Part B requires six months' continuous employment and Part C such period as the regulations specify, and in every case the presumption yields if the contrary is proved.

Limits and criticism

"Nexus" in section 34(3) is undefined. The Code creates a statutory commuting cover and then leaves its central word to be worked out case by case, so the doctrine Saurashtra Salt built is likely to be reused in deciding what nexus means.

Section 36(3) is easily overlooked and reverses what a reader would expect, since the general presumption is switched off precisely where disease, the hardest thing to prove, is in issue.

The five year bar in section 37(5) may leave a worker whose condition worsens in year three without a review, unless the medical appeal tribunal grants leave.

The choice of appeal in section 37(7) is a trap for the unrepresented. Going straight to the Employees' Insurance Court is faster but gives up a tier, and the Code does not say so.

Quick revision

• Section 2(28): employment injury is a personal injury by accident or occupational disease arising out of and in the course of employment, within or outside India, for Chapters IV and VII.
• Section 34(1): an accident in the course of employment is presumed, absent evidence to the contrary, to arise out of it.
• Section 34(2): rescue on an actual or supposed emergency at the premises is deemed to arise out of and in the course of employment.
• Section 34(3): commuting to or from residence is deemed to arise out of and in the course of employment if nexus of circumstances, time and place with the employment is established.
• Section 34(4): employer provided transport, with express or implied permission, even with no obligation to use it, provided the vehicle is operated by or for the employer and not in the ordinary course of public transport; vehicle includes a vessel and an aircraft.
• Section 35: breach of law, of orders, or acting without instructions does not break the connection, if the act is done for the purpose of and in connection with the employer's trade or business.
• Section 36: Third Schedule Part A no minimum period, Part B six months continuous, Part C as regulations specify; deemed an employment injury unless the contrary is proved; otherwise a disease is covered only if directly attributable to a specific injury by accident; section 34(1) does not apply to section 36 cases.
• Section 37: the disablement question goes to a medical board; review on fresh evidence of non-disclosure or misrepresentation, fraudulent or not, or on substantial and unforeseen aggravation where substantial injustice would otherwise be done; review for aggravation barred before five years, or six months for a provisional assessment, except with leave of the medical appeal tribunal; appeal to the medical appeal tribunal or straight to the Employees' Insurance Court, with a second appeal only if the tribunal was chosen; no appeal after taking or paying the commuted value.

Test yourself

1. What exactly does the presumption in section 34(1) presume? Only that an accident which arose in the course of employment arose out of that employment, and only in the absence of evidence to the contrary. The employee must still prove the first limb.

2. A worker is knocked down on his way home from his shift. Is that an employment injury under Chapter IV? It is deemed to arise out of and in the course of employment under section 34(3), provided a nexus between the circumstances, time and place of the accident and the employment is established.

3. How does Saurashtra Salt Manufacturing Co. v. Bai Valu Raja stand today? It remains the leading statement of notional extension and of its limit, that a worker on a public road, in a public place or on public transport is there as any member of the public unless the nature of the employment requires him to be there. But it was decided under the Workmen's Compensation Act 1923, which had no commuting provision, and section 34(3) of the Code now supplies one for Chapter IV.

4. A worker is injured taking a shortcut expressly forbidden by his employer, while carrying goods for the employer's business. Is he covered? Yes, by section 35. The contravention of the employer's order does not prevent the accident from being deemed to arise out of and in the course of employment, provided the accident would have been so deemed had the act not been in contravention, and the act was done for the purpose of and in connection with the employer's trade or business.

5. What must an employee show to get the benefit of the presumption for an occupational disease listed in Part B of the Third Schedule? That he was employed in the employment specified in Part B for a continuous period of not less than six months, and contracted a disease specified therein as an occupational disease peculiar to that employment. The contracting of it is then deemed an employment injury unless the contrary is proved.

6. Does section 34(1) also apply to an occupational disease claim under section 36? No. Section 36(3) provides that section 34(1) shall not apply to cases to which section 36 applies.

7. An Insured Person appeals a medical board decision straight to the Employees' Insurance Court. Has he kept a second appeal? No. Under section 37(7)(b) the further right of second appeal to the Employees' Insurance Court exists only where the party first appealed to the medical appeal tribunal.