Theory & Procedure on Employment Injury

1. Theory & Procedure onEmployment Injury

2. Law Commission said

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

4. The Law Commission also said

5. Workmen’s Compensation Act, 1923

6. 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.

7. 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.

8. 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.

9. 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.

10. EmployerSec.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

11. Readers in a hurry may skip the next few slides and go straight to Slide No.18

12. Applies • With reference to the specified categories of employment. • Every category is specifically notified.

13. 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 

14. 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

15. 3.employed for the purpose of makingalteringrepairingornamentingfinishing or otherwise adapting for usetransport 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

16. 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.

17. 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;

18. Workmen’s Compensation Act, 1923 provides for compensation y the employer in the event of a workman sustaining personal injury.

19. 3. (1) If personal injury is caused to a workman by accidentarising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

20. Provided that the employer shall notbe 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

21. Entire Workmen’s Compensation Act revolves around this Section only.

22. Employees’State Insurance Act, 1948

23. Section 2 (8) “Employment injury” means personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.

24. 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.

25. 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.

27. Personal Injury • Means physiological injury • And more than physiological injury • May either be • Internal • Or • External Chest pain arising while on duty after remaining busy in streneous work for many hours is an accidental internal injury

28. 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.

30. Accident is something that happens all of a sudden and not by design.

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

32. An employee working on the terrace in a ten-storey building jumps out and falls down to death. It is a case of suicide and not of employment injury.

33. A factory supplies water containers to a ship. A mechanic, who has ESI security cover, is sent to the ship to instal and ensure that the containers work after installation. In the process, the mechanic also happens to travel in the ship up to the next port. One night he was found sitting on the deck all alone, when the ship was in the midsea. Next morning, he was not found in the ship. In all probability, he had fallen overboard and drowned in the sea. There was no eyewitness to his death.

34. If he had committed suicide, it cannot be decided as a case of employment injury. If he had slipped and fallen down, it must be treated as a case of employment injury. How will you decide?

35. Accident Vs. Injury Both are distinct – in external injury cases. Both coincide - in internal injury cases. Injury includes disease too. Injury sustained during an accident sets up a condition of things which are medically described as‘disease’

36. 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.

38. 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.

39. 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.

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

42. Course of employment • Not the same as engagement.

43. Sphere of employment –Notional extension

44. Notional extention • To 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?

45. Causal connection of accident with employment

46. The accident should have resulted in injury. The accident should have connection with employment. The accident should have arisen out of employment.

48. ‘Out of’ means • Nature and conditions of employment must be the cause for the accident.

49. “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)