A PAPER ON: DOCTRINE OF NOTIONAL EXTENSION

IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE

MARKING SCHEME, FOR SEMESTER VII OF 2021-2022, IN THE

SUBJECT OF LABOUR LAW 2

SUBMITTED TO FACULTY:

PROF. UNNI RAMACHANDRAN

SUBMITTED BY:

SAUMYA MOTWANI (A035)

COURSE-FOURTH YEAR B..A., Ll.B.(Hons)

ACADEMIC YEAR – 2021-2022

SEMESTER VIII
INDEX

1 Introduction 3, 4

2 Basis of this theory 5, 6

3 Judicial 7-10

Interpretation
4 Critical Analysis 11-14

5 Conclusion 15, 16

6 Bibliography 17
Chapter 1 - Introduction

The principal behind compensation to the injured worker under the

Employee‘s State Insurance Act, 1948 and Workmen‘s Compensation
Act, 1923 is considered according to the Doctrine of Notional Extension.
This doctrine throws light on the course of employment of a worker.
Section 3(1) of the Workmen‘s Compensation Act, 1923 provides that the
injury must be caused to workman by an accident arising out of and in the
course of employment.1 There is no problem in detecting that the accident
occurred in the course of employment when a workman is injured in the
working place and in the working hour and doing his duty. The problem
arises when these elements do not coincide together. But a workmen if
injured just near the work premises or just before joining the work or in
the way to work problem arises. 2To address this kind of problem and
giving some kind of relief to the workmen the theory of notional extension
evolved. Employment does not necessarily ends when 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 time and space. As
employment may end or may begin not only when the employee begins to
work or leaves 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 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 re passes 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.

Workmen‘s Compensation Act, 1923

2 "A Problem in the Drafting of Workmen's Compensation Acts", 25 Herv. L. Rev. 328, 401-427 (1911-
1912)
Chapter 2 - Basis of this Theory

This theory of notional extension has been mostly applied to four types of
cases. First, cases of injury to workmen employed in workshops, factories
or other such establishments. Second, cases of injury to workmen
employed in harbours or on ships. Third, cases of injury to workmen
employed in transport services. Lastly, cases of injury to workmen
employed in mines. In some cases the basis of the notional extension is
considered to be an implied term of contract,3while in other it is the
proved or practical necessity. In Varadarajulu Naidu v. M. Boyan4, a
workman was injured in the way to his work spot by capsizing of the lorry
belonging to the employer and driven by his servant, in which he was
being conveyed along with the other workmen to the spot. The
Commissioner held that he was in the course of his employment. In an
appeal against the judgment of J. Basheer Ahmad Sayeed of the Madras
High Court, confirming the work spot, was at the time of the accident, in
the course of his employment on the ground of implied obligation and
proceed necessity to use the lorry. There is no rigidity in this respect and
either of these two bases may be used in any particular case falling in any
one of the abovementioned four categories depending upon the facts and
circumstances of the case. In reality the implied term of contract and
proved necessity are not two different things. The implied term of contract
itself is based on the existence of proved necessity. If there is no other
alternative to a particular workman to reach the work spot except the one
provided by the employer then it is implied in his terms of the contract
that he will be deemed on duty from the very beginning where he starts
through that particular way provided by the employer and not from the
moment when he actually reaches the work spot. It is proved necessity
that, in order to start the work he must reach the work spot, which he can
reach only through that particular way and therefore, if is said that
impliedly he is obliged to go through that particular way. If he received
any injury by accident, while in that particular way, the accident falls in
the course of employment.

Northumbrian Shipping Co. v. McCullum,[1932] 101 LJKB 664 at 670:

"It has been recognized time and again that the sphere of a workman's employment is
not necessarily limited to the actual place where he does his work. If in going to or
coming from his work he has to use an access which is part of his employer's
premises, or which he is only entitled to traverse because he is going to or coming
from his work, he is held to be on his master's business while he is using that access."
4(1954) 2 LLJ 426
CHAPTER 3- Judicial Interpretation

3.1 Determining duty of the Employer

Court has given a wider and popular meaning of “duty” to expand the
scope of this section. The court also talks about the service contract to
determine which can be come under the preview of this section. Justice
Cozens-Hardy M. R. said "......... it was an implied term of the contract of
service that these trains should be provided by the employers, and that the
colliers should have the right, if not the obligation, to travel to and from
without charge."
In Weaver v. Tredegar Iron Coal Co.5 House of Lords after examining a
large number of authorities given a wider meaning of “duty” but did not
negated the duty test. In this case Lord Atkin said that there can be no
doubt that the course of employment cannot be limited to the time or place
of the specific work which the workman is employed to do. It does not
necessarily end when the "'down tools" signal is given, or when the actual
workshop where he is working is left. In other words, the employment
may run on its course by its own momentum beyond the actual stopping
place. There may be some reasonable extension in both time and space."
Lord Porter further said that if an accident occurs while coming to the
workplace or leaving the place can be out of and in the course of
employment if he is bound by the way he proceed under the terms of the
contract of service express or implied. Here the duty test was confirmed.

3.2 Expanding the Purview of Service Contracts

In St. Helens Colliery Co Ltd v. Hewlston,6the court said that the injury did not occur
in the course of employment because the employee was not bound or obliged to
travel by that special train and he could have taken other transport. If he were bound
by the service contract to travel by that train then it would have been in the course of
employment. It was also added that if the place of work is like that there is no
alternative means of transport other than the transport given by the employer then it
can be concluded that there is an implied term in the service contract to use that
transport. The same view was taken in Mackenzie v. I.M. Issak7 which says that a
workman in a colliery is not in course of his employment while using the transport of
the employer if he is not bound by the terms of the contract to travel by that transport.
There was a particular situation where employee had to take bus service to reach his
workplace from home and back. It was necessary for doing his duty efficiently and
punctually which was a condition under his service . So, traveling in that bus was an
implied condition to his duty. It was also said that this doctrine was developed to
cover the factory, workshops and harbors but it can be applied in this kind of
situation also. Compensation was granted holding that the accident arising in the
course of employment. Though the court said what would be the indicator that when
the work starts and ceases that depends on case to case basis. In Union of India v.
Mrs . Noor Jahan8a railway gangman was ordered by his employer to go to another
place for cleaning and in the way from one place to another accident happened.
Justice Shukla observed that the accident has occurred in the duty hour and when he
was going to do his duty on behalf of his employer and he concluded that the
accident has occurred in the course of his employment.

(1940) 3 All. E.R. 157

6 1924 House Of Lords
7 1970 I LLJ 16
3.3 Public Place

There are some situations where this doctrine does not apply. When a
workman is on the public road or public place and not there for fulfilling
the obligation and his work does not make necessary to be there. The
proximity of the work premises and spot of accident become immaterial.
The notional extension of the place of work cease when workman come to
a public road.

In Saurashtra Salt Manufacturing Co. v. Valu Raja9Justice Jafer Imam said

that, “It is well settled that when a workman is on a public road or a public
place or on a 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.

81987 SC 1192
9 AIR 1958 SC 881

3.4 Expanding for a Social Cause

In later cases the court took more liberate stand in expanding the definition
of notional extension realizing the social view point and objective of the
act. The employee died on the way towards his workplace because of
communal riot. It was argued by the appellant that the person died before
the commencement of his work and outside the work place. There is no
connection between the accident and the employment. High court of
Madras has negated all this argument and allowed the compensation.

In Superintending Engineer, T.N.S.E.B v. Sankupathy (T. M. T.)10 an

Ardhanari was died when he was coming to his work under appellant.
Court said that “Since the Act is a welfare legislation, it is expected that
the provisions would receive liberal interpretation so as to advance the
object and purpose of the Act.” The court also observe that “in the course
of employment” talks about the point of time and place of accident and
“out of employment” talks about a casual connection between the accident
and the employment and which according to the court is very narrow
interpretation giving the modern industrial set up. So doctrine of notional
extension should be used and even if the workman did not reach the place
of work the workmen should get compensation for accident.

Chapter 4 - Critical Analysis

4.1 Analysis of Section 3(1) of Workmen's

 Compensation Act, 1923

The phrase “in the course of employment” had already acquired a

significance in the field of common law, in a different context, at the time
of the introduction of workmen’s compensation legislation in various
countries of the world. The legislatures of almost all those countries
instead of putting this phrase as expressing the sole condition of liability
preferred to put one more condition expressed by another phrase, “arising
out of employment.” The object of considering the relationship between
these two phrases inter se is to answer the question: Why legislatures
imposed two simultaneous conditions instead of one. The mere fact that
both the conditions are essential, makes it clear that both these phrases do
not cover identical grounds. 11 The underlying principle appears to be that
all cases of claims “arising out of employment” will be covered by
“arising in the course of employment” which ultimately supports the
proposition that the phrase "in the course of employment” forms a bigger
circle within the periphery of which the phrase “arising out of
employment” forms another smaller circle. But this proposition does not
appear to be the correct statement of the factual situation. There may be
cases where the injury which arises “in the course of employment” may
not “arise out of employment”. For example, a workman doing his duty at
his normal working place in his employer’s premises and during his
normal working hours may be shot by another person by pistol from
outside the premises through the window for personal enmity. The injury
will clearly “arise in the course of employment” but will not “arise out of
employment” because there is no causal relationship between the
employment and the injury. Conversely, the injury may not arise in the
course of employment. For example, a workman, while off-duty and
enjoying his holiday at a picnic spot may be assaulted by another person
whom he might have annoyed while on duty and in the performance of his
duty. The injury will be clearly arising out of employment because the
cause of his assault is his employment. But it will not be one arising in the
course of his employment.12

11

See observations of Lord Atkinson in Charles R. Davidson case, "In my view the words
'arising out of'suggest the idea of cause and effect"
12 ibid

The above discussion and illustration do not merely discard the

relationship of “arising out of employment” to the phrase “in the course of
employment” as a circle within a bigger circle but at the same time also
establishes that the relationship between these two phrases is that of two
Intersecting circles where both cover some common area. Had it been
correct to say that all cases arising out of employment would also be in the
course of employment, there would have been no necessity to add the
phrase “arising in the course of employment” as a condition of employers’
liability; only “arising out of employment” would have been a sufficient
condition. Under the Workmen’s Compensation Act it is intended neither
lo give compensation in all cases in injuries arising in the course of
employment nor in all cases of injuries arising out of employment. The
area of cases of injuries arising out of employment may be smaller than the
area of cases of injuries arising in the course of employment, but, to say
that the legislature intended to give compensation in all cases where
injuries arose out of employment, because all of them would automatically
fall in the course of employment also, would lead us to conclude that the
phrase “in the course of employment” in the statutory definition was
superfluous. But as pointed out, it is not so.

4.2 Analysis of the Doctrine

Various judgments of Supreme Court and different High Courts have considered the
concept of notional employment and said that if the employee dies due to accident
while going to work place from residence or while returning from work place to
residence, as an accident arising out of and during the course of employment and as
such entitled for compensation in accordance with provisions of the Act. Although
this doctrine is not specifically enshrined under the Employees State Insurance Act or
Workmen‘s Compensation Act. Notional extension is yet to be amended either in
Employees State Insurance Act or Workmen‘s Compensation Act. Under Employees
State Insurance, if any accident happens outside the premises within one kilometre
radius from the work premises during reasonable office related hours it will be
considered as employment injury. Same logic will be applicable for Workmen‘s
Compensation Act, 1923. If accident happens in the company provided vehicle,
irrespective of the location and time it is employment injury for consideration under
Employees State Insurance Act and Workmen‘s Compensation Act. The employee
cannot claim wages for the loss of pay period. The employee can claim (or company
can give) compensation under Workmen‘s Compensation Act registering a case with
Labor Commissioner. Any payment made by the employer directly to the employee
under any outside settlement will not be considered as a legal compensation. The
payment has to be made before the labor commissioner and it‘s mandatory. If the
employee is covered under Employees State Insurance Act, the employee has to
approach Employees State Insurance for benefit - employer should have given
accident notification to Employees State Insurance. However, there is no proper test
for application of this doctrine. The scope of such extension depends on the facts and
circumstances of each case.13
See, Willis, Workmen's Compensation 24 (26th ed. 1942):
As a general rule a man's employment does not begin until he has reached the place
where he has to work or the ambit, scope or scene of his duty, and it does not continue
after he has left it, and the periods of going and returning are generally excluded.

Chapter 5 - Conclusion

The term “arising out of” has been subjected to judicial interpretation from
the very beginning and in most of the times it has been seen that court has
tried to give wide meaning to it. This phrase has been most of the time
coupled with the “arising out of employment” . Even though the meaning
of these two phrases are different then also there is an inseparable
connection between them. Previously it was thought that arising “in the
course” is a big circle and “ out of” is a small circle within it. But the new
notion is that this two phrases are different circle which intersect
somewhere. This two criteria need to fulfil to get compensation. These two
phrases are conjunctive under this act. If these terms have been disjunctive
a large area could have been covered and more number of workers could
have been benefited and fulfil more efficiently the objective of the act as it
would have been sufficient to prove only one condition.

The judicial decisions have evolved an important consideration which

categorically specifies the importance of the element of time and place of
employment and the duty of the injured workman, to determine that the
accident has taken place “in the course of the employment.” There is no
problem where a workman is injured while he was doing his duty at a
specified place but the problem may arise when all these factors, namely,
time, place and duty do not coincide. It is submitted that duty in the strict
sense should not be considered as an essential element. The Workmen’s
Compensation Act, 1923, and the Employees State Insurance Act, 1948
are pieces of social legislation and have been passed with the view to
provide relief to the injured workmen. If duty will be taken as a
determinative factor millions of workmen will be rendered orphans and
the very object of the statutes will be defeated. Even thought the judiciary
has come up with the concept of notional extension which essentially
wider the scope of the terms and cover the areas which is not
conventionally considered under this terms. This doctrine appeared to be
very helpful for workmen to get facility given under this act.
BIBLIOGRAPHY

Websites Referred-

• http://corporatelawreporter.com/2013/11/27/doctrine-of-
notional-extension/ • https://www.casemine.com/search/in?
q=doctrine+of+notional+extension

Electronic Database-

• Manupatra (www.manupatra.com; eproxy.svkm.ac.in:2055)

• LexisNexis(www.lexisnexis,com; ezproxy.svkm.ac.in:2313)

Articles and Reports Referred-

• A Problem in the Drafting of Workmen's Compensation

Acts - Herv. L. Rev. • Workmen's Compensation - Willis

• An Analytical Study Of The Jurisprudential Development Of

‘Employee’ And ‘Employment Injury’ Under The Employees
State Insurance Act - Fakkiresh S. Sakkarnaikar