Law Commission said

2

The Law Commission refers only to the object that was attempted to be achieved by the Workmen’s Compensation Act, 1923

3

The Law Commission also said

4

5

• It is essential to know the decisions taken by Courts of Law under the Workmen’s Compensation Act, 1923 before examining the concept of Employment Injury under the Employees’ State Insurance Act, 1948.

• Readers are advised to go through the ‘Introduction’ in the books of K.D. Srivastava on both the W.C Act and the E.S.I. Act.

• This Presentation traverses beyond.6

Applicability of the W.C.Act • The Act applies to workers employed in any

capacity specified in Schedule II of the Act which includes

• Factories, • Mines, • Plantations, • Mechanically Propelled Vehicles, • Construction Work and • certain other Hazardous Occupations • and specified categories of Railway Servants.

7

Extension of the provisions

• Section 2 of the Act, empowers the State Governments to extend the scope of the Act to

• any class of persons whose occupations are considered hazardous

• after giving three months notice to be published in the Official Gazette.

8

WORKMAN• Workman means any person (other than a person whose employment is of

a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business) who is-

a railway servant as defined in section 3 of the Indian Railways Act, 1890 not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

employed in any such capacity as is specified in Schedule II,Whether the contract of employment …is expressed or implied, oral or in writing.

The provisions of the Act have been extended to cooks employed in hotels, restaurants using power, liquefied petroleum gas or any other mechanical device in the process of cooking.

9

Employer Sec.1 (e)

• “Employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship means such other person while the workman is working for him; ================

“Body of persons” – Note the plural“Such other person” – Note the singular

10

Readers in a hurry may skip the next few slides and go

straight to Slide No.18

11

Applies

• With reference to the specified categories of employment.

• Every category is specifically notified.

12

Few examples from Schedule II

• LIST OF PERSONS WHO SUBJECT TO THE PROVISIONS OF SECTION 2(1)(n) ARE INCLUDED IN THE DEFINITION OF WORKMEN

• The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section that is to say any person who is -

1.employed otherwise than in a clerical capacity or on a railway in connection with the operation repair or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle or 

13

• 2. employed otherwise than in clerical capacity in any premises wherein or within the precincts whereof a manufacturing process as defined in clause (k) of section 2 of the Factories Act 1948 (63 of 1948) is being carried on or in any kind of work whatsoever incident to or connected with any such manufacturing process or

• with the article made whether or not employment in any such work is within such premises or precincts and steam water or other mechanical power or electrical power is used; or

14

• 3.employed for the purpose of making altering repairing ornamenting finishing or otherwise adapting for use transport or sale any article or part of an article in any premises wherein or within the precincts whereof twenty or more person are so employed,

Explanation : For the purposes of this clause persons employed outside such premises or precincts but in any work incidental to or connected with the work relating to making altering repairing ornamenting finishing or otherwise adapting for use transport or sale of any article or part of an article shall be deemed to be employed within such premises or precincts: or

15

• employed in any newspaper establishment as defined in the Working Journalists and Other Newspaper Employees (Conditions of Services) and Miscellaneous Provisions Act 1955 (45 of 1955) and engaged in outdoor work.

16

• 4. employed in the manufacture or handling of explosives in connection with the employer's trade or business; or

• 5. employed in any mine as defined in clause (j) of section 2 of the Mines Act 1952 (35 of 1952) in any mining operation or in any kind of work other than clerical work incidental to or connected with any mining operation or with the mineral obtained or in any kind or work whatsoever below ground;

17

Workmen’s Compensation Workmen’s Compensation Act, 1923 provides for Act, 1923 provides for

compensation y the compensation y the employer in the event of a employer in the event of a

workman sustaining workman sustaining personal injury.personal injury.

1818

3. (1) 3. (1) If If personal injurypersonal injury is is caused to a workman by caused to a workman by accidentaccident arising out ofarising out of and and in in the course of his the course of his employmentemployment, his employer , his employer shall be liable to pay shall be liable to pay compensation in accordance compensation in accordance with the provisions of this with the provisions of this Chapter:Chapter:

1919

Provided that the employer shall not be so liable—

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to—

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen

20

Entire Workmen’s Compensation Entire Workmen’s Compensation Act revolves around this Section Act revolves around this Section

only.only.

2121

Employees’ Employees’ State State

Insurance Insurance Act, Act, 19481948

2222

Section 2 (8)Section 2 (8)““Employment injuryEmployment injury”” means means personal injurypersonal injury

to an employee caused by to an employee caused by accidentaccident or an or an occupational disease occupational disease arising out of arising out of and and in in the course of his employmentthe course of his employment, being an , being an insurable employment, whether the insurable employment, whether the accident occurs or the occupational accident occurs or the occupational disease is contracted within or outside disease is contracted within or outside the territorial limits of India.the territorial limits of India.

2323

Section 2 (8)• “Employment injury” means • personal injury • to an employee • caused by accident • arising out of • and• in the course of his employment,• being an insurable employment,• whether the accident occurs within or outside the

territorial limits of India.

24

Section 2 (8)• “Employment injury” means • occupational disease• to an employee • arising out of • and• in the course of his employment,• being an insurable employment,• whether the occupational disease is contracted

within or outside the territorial limits of India.

25

26

Personal InjuryPersonal Injury

Means physiological injuryMeans physiological injury And more than physiological injuryAnd more than physiological injury May either be May either be InternalInternal Or Or ExternalExternal

Chest pain arising while on duty after Chest pain arising while on duty after remaining busy in streneous work for remaining busy in streneous work for many hours is an accidental internal injurymany hours is an accidental internal injury

2727

• Disablement benefit is for the result of the injury and not for the injury itself.

• Shock – no disablement benefit.• Shock results in one’s being disabled

to perform his duty – Disablement benefit for the loss of earning capacity.

28

29

Accident is something Accident is something

that happens that happens

all of a sudden all of a sudden

and and

not by design.not by design.

3030

• Accident unforeseen and sudden• Occupational Disease not unforeseen not sudden

31

An employee working on the terrace in An employee working on the terrace in a ten-storey building jumps out and a ten-storey building jumps out and falls down to death. falls down to death.

It is a case of suicide and not of It is a case of suicide and not of employment injury.employment injury.

3232

A factory supplies water containers to a ship. A A factory supplies water containers to a ship. A mechanic, who has ESI security cover, is sent to mechanic, who has ESI security cover, is sent to the ship to instal and ensure that the containers the ship to instal and ensure that the containers work after installation. work after installation.

In the process, the mechanic also happens to In the process, the mechanic also happens to travel in the ship up to the next port. One night travel in the ship up to the next port. One night he was found sitting on the deck all alone, when he was found sitting on the deck all alone, when the ship was in the midsea. the ship was in the midsea.

Next morning, he was not Next morning, he was not found in the ship. In all found in the ship. In all probability, he hadprobability, he had fallen overboard and drowned fallen overboard and drowned in the sea. There was no eyewitness to his death.in the sea. There was no eyewitness to his death.

3333

If he had committed suicide, it If he had committed suicide, it cannot be decided as a case cannot be decided as a case of employment injury. If he of employment injury. If he had slipped and fallen down, had slipped and fallen down, it must be treated as a case of it must be treated as a case of employment injury.employment injury.

How will you decide?How will you decide?3434

–

‘’

35

If the work the employee was doing at the time of the occurrence of injury did, in fact, contribute to the occurrence of the accident, it is Employment Injury.

36

37

Employment Vs. Work

A man may be in the course of employment without actually being engaged on work for the doing of which he is engaged.

38

A Staff Car Driver of a factory may not be driving the car all through the day. When he is actually driving, he is doing work. If he remains in the factory premises on a working day, even if he is not actually driving the car, he is in employment.

Persons sent on tour for so many days or weeks. He may sustain injury even if he is not doing his work at the time of accident.

They are in employment but are not doing work.

39

Employment The term covers Not only the nature of employment But also its Character, Conditions, Obligations, Incidents, Special risks,

40

41

Course of employment

Not the same as engagement.

42

Sphere of employment –Notional extension

In timeIn a reasonable manner

In place

43

Notional extentionTo travel in employer’s vehicle

Facts and circumstances to be examined carefully – to apply this theory.

The moot question:Did the employee occupy the same

position as an ordinary member of the public?

44

Causal connection of

accident with employment

45

The accident should have resulted in injury.

The accident should have connection with employment.

The accident should have arisen out of employment.

46

47

‘Out of’ means

• Nature and conditions of employment must be the cause for the accident.

48

• “If a particular accident would not have happened to a workman had he not been employed to work in a particular place and condition,

• Then,• It would be an accident arising out

of the employment”.(- Nanjamma Vs. City Municipal Council

– 1982- Karnataka. (Page 212- WC Act – KDS-1999)

49

50

1. Out of & during the course of.2. During the course of but not out of.3. Out of but not during the course of.

Exercise:Give, at least, one example for each category.

51

Example 1• There is a factory.• Work is going on in the fourth floor.• Some employees are working there in the

fourth floor fixing certain machinery.• Some other employees are working in the

ground floor on the road side staking materials in the lift to be sent to the fourth floor through an open lift. The traffic on the road is heavy.

• When the materials are off-loaded in the fourth floor, an employee by name ‘A’ falls down from the fourth floor and sustains very serious injury.

52

• Here personal injury has been sustained to the employee ‘A’ caused by accident arising out of his employment. He sustained that injury because he was in the fourth floor.

• This is case of personal injury that has arisen Out of & During the course of.

53

Example 2

In the same scenario, another employee ‘B’ who is working in the ground floor staking the materials in the aforesaid lift, is hit by a speeding vehicle on the road and he sustains personal injury.

54

• ‘B’ sustained personal injury not out of his employment but during the course of his employment.

• This is a case of personal injury that has arisen ‘During the course of’ but not ‘Out of’.

55

Example 3

•An employee by name ‘C’ is admonished by his supervisor ‘D’ over the non-performance of certain work assigned to him.

•When ‘D’ is walking along with his family members on a holiday in a market, ‘C’ attacks ‘D’ resulting in personal injury to him.

56

• ‘D’ sustained personal injury that has arisen ‘out of’ but not ‘during the course of employment’.

57

Section 51 - APresumption 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.

58

“During the course of” - if proved,

“Out of” - is presumed.

59

Sec. 51 - B

Accident happening while acting in breach of

regulations, etc.• An accident shall be deemed to arise out of

and in the course of an insured person’s employment notwithstanding that he is at the time of the accident acting in contravention of the provisions of any law applicable to him, or of any orders given by or on behalf of his employer or that he is acting without instructions from his employer, if

60

Sec. 51-B (a) and (b)

( a) the accident would have been deemed so to have arisen had the act not been done in contravention as aforesaid or on without instructions from his employer, as the case may be; and

( b)the act is done for the purpose of and in connection with the employer’s trade or business.

61

Prohibited Act

• Not an Employment Injury.

• Parameters to decide:

• Has the employer made known to all his employees about the prohibited act? Why is there such prohibition?

• Does the employer observe the prohibition customarily? • Has the employer had condoned such violations in the past?• Has the employer taken reasonable steps to enforce the

prohibition?

62

Wilful Disobedience

• Sec. 3 (1) of W.C.Act.

• No compensation

• Sec. 2(8) of ESI Act.

• No such bar.• It is only that it

should have been done for employer’s trade or business.

63

Added Peril

1. Workman – does work - wrong manner – no forfeiture of benefit – however reckless he may have done it.

2. If he does something different from his duty- he forfeits his right.

3. Workman doing work in another machine – with permission from another worker but not from his employer – Not an Employment Injury.

4. Girl employed in hand press operates power press – without employer’s knowledge and permission – Not an Employment Injury.

64

Sec.51C.

Accidents happening while travelling in

employer’s transport

65

An accident happening while an insured person 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, notwithstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment,

if66

( a) the accident would have been deemed so to have arisen had he been under such obligation; and

( b) at the time of the accident, the vehicle( i) is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer, and

( ii) is not being operated in the ordinary course of public transport service.

( 2) In this section “vehicle” includes vessel and an aircraft.

67

• Employees travelling by a chartered van arranged by the employer. Accident occurs at 4 a.m when they are travelling in that vehicle. They sustain injury. Is it employment injury?

• Rs. 30 p.m. recovered from the wages of the employees at the rate of Re. 1 per day. So, the employees had been travelling by the vehicle provided by the employer.

• This is a clear case of employment injury.68

•Arising out of •Arising during the course of

•Both ingredients are essential as per Sec. 2 (8).

•Is this proposition correct? 69

Section 51D.Accidents happening

while meeting emergency

• An accident happening to an insured person in or about any premises at which he is for the time-being employed for the purpose 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 imperiled, or to avert or minimize serious damage to property.

70

EmergencySec. 51-D

Factory Building 1Factory Building 2

71

Problem 1

• A lift operator in the Factory Building 1 on the previous slide rushes to the rescue of the neighbourhood Building 2, to put out the fire there.

• He sustains injury in the process.

• This is employment injury

• Because, there is an emergency situation from the point of view of his work in the factory. If the fire is not put out in the neighbourhood, it may spread to the factory Building 1 of the employee too.

• His action to leave his work spot to put out the fire was in the interest of his factory.

72

Problem 2

• A lift operator in the Factory Building 1 on the previous slide rushes to the rescue of a child caught in the lift of the neighbourhood Building 2.

• He sustains injury in the process.

• This is not employment injury

• Because, there is no emergency situation from the point of view of his work in the factory.

73

Emergency

• Driver – van – garage in hotel – Sunday holiday – Fire – rescues the van – sustains injury –

• Emergency - He re-enters the sphere of employment

74

Actions in accordance with usage

75

Employee Vs Insured Person

Explain the difference

76

Can the employer be issued a

Notice compelling him to

produce his records at the

Branch Office or the Regional

Office?

• The employers cannot be compelled to produce their records in the Regional Office or Branch Office of the ESI Corporation.

• The Inspector of Factories or the EPF Inspector can also not insist on production of records at their offices. The inspectors must go to the factory to have access to those records.

78

• The employers produce records at the Regional Office in response to C-18 Adhoc notices only on their own volition.

• The employer is given the option to produce records ‘if he so desires’, as could be seen from the text in the C-18 notice.

79

• However,• In the case of accidents, the

employer can be compelled to produce all the relevant records and registers at the Branch Office or Regional Office, as per Reg. 70 of the ESI (General) Regulations, 1950.

80

Reg. 70

70. Employer to furnish further particulars of accident. —

Every employer shall furnish to the appropriate office such further information and particulars of an accident and within such time as the said office may, in writing, require.

81

Malingering, to what extent?

82

Preventing misuse and Controlling malingering

• What are the practical methods?

83

Commuting Accidents

• The Act did not provide for it originally. • When introduced earlier through Resolution, this

provision was found to have been misused a lot.• Branch Officers of the Regional Offices were found fault

with, whether they accepted or not accepted those cases.

• Supreme Court, thereafter, ruled this facility out. • Now, without making proper safeguards and without

answering the questions of the subordinate officers who actually face the problem in implementation, this provision has been made part of the ESI Act through Amendement in 2010. The issues involved are not discussed here for obvious reasons.

84

Being liberal?There is an argument that the authority which takes decision in the Employment Injury cases must have liberal outlook.

But, that is not correct. An officer, and for that matter any officer, has to be compassionate. But, one is not to be liberal. He is there to enforce law. That law must be enforced in spirit. But, the officer is not supposed to be liberal or philanthropic with public money.

85

He is there as the custodian of the Corporation Funds. These funds must be spent only for the purpose for which they can be spent, as per rules. He must, therefore, enforce rules in right spirit.

He should not condone malingering. An insured person who misuses ESIC benefits is, actually, exploiting his co-workers. That situation should not be encouraged.

The Branch Manager or any other authority of the ESIC should ensure that they are capable of proving that they are not outsmarted by the cunning and mischievous elements who are out to misuse the ESIC benefits.

86

ESI Act has kindness in-built.

It is not permissible for a law enforcing officer to have misplaced sympathy.

He must be honest, sincere and compassionate.

He can achieve the purpose of the Act that way and not by abdicating his responsibility as custodian of the Corporation funds.

It is also his duty to control malingering.

87

Investigations Proper investigation into the accident cases is a thrilling

experience. One would feel like Sherlock Holmes.

One can detect the wrongdoers with a little effort made sincerely. There are cases where the employers, who had attempted to misuse the DB facility, had been arrested. There are limitations in discussing such cases in an open forum.

An officer conducted an investigation by summoning the employer to the Regional Office to ascertain certain facts not available in the report of the Branch Office Manager. He had his young newly-recruited Superintendent with him for assistance in communication.

Next slide shows a part of the email sent by the Superintendent after the transfer of the officer concerned.

88

That email

“Sir, I am now in C……a, preparing for the 'D day'. I have told my friends at length how you used to take p.h. in SRO and how you fixed those unscrupulous consultants. They are excited to hear the stories. I hope in very distant future this experience will be helping me to perform better.” 89

• Acquire knowledge!.• You can move forward with confidence.

Your work would be exciting and would give you job satisfaction.

• Your presence in the organisation will, then, be beneficial to the mankind.

• If you are an employer, you would,then, ensure proper coverage of all coverable employees so that they are not denied the benefits when they are, actually, in need of it. You can avoid prosecution too!

90

•Now you know

91

Everything

essential about

Employment Injury

92

Congrats!Congrats!By-Flourishingesic.infoBy-Flourishingesic.info

N.B: Please go through the initial slides of the Presentation on the Overview of ESI N.B: Please go through the initial slides of the Presentation on the Overview of ESI Scheme to know the early history of the concept of Employment Injury. Scheme to know the early history of the concept of Employment Injury.

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