Sinha, C.J. - (1.) This is an appeal against an order made by the Commissioner for Workmen's Compensation, West Bengal D/-30th May 1959. The facts are briefly as follows: The applicant for compensation under the Workmen's Compensation Act, 1923 (VIII of 1923) (hereinafter referred to as the "said Act") was Taslim, son of Bhagloo. He worked as a khamali and belonged to the Reserve Pool of the Calcutta Dock Labour Board. On the 4th of February 1957 he was booked by the said Board to work under the Sardar Ekbal for the appellant A. C. Roy and Co. (Private) Ltd.. stevedores, in berth No. 27 Kidderpore Docks, in the vessel S. S. "Khaybar" in the afternoon shift. The booking was between 2-30 p.m. to 3-00 p.m For booking he had to go to the Call Stand of the Dock Labour Board and was booked to work for the appellant as aforesaid The booking was for working in the ship, in the shift, commencing from 3.50 p.m. As I have stated above, he was booked between 2-30 and 3-00 p. m. and he went on foot, via the public road which leads to gate No. 22 of the Kidderpore Docks. While on the public road and just at the gate, he was knocked down by a taxi going south. It came up behind him and pushed him down. He reported the accident to the Foreman about the injury and was asked to procure another person as a substitute which he did. According to him, his right foot was badly injured and fractured. The monthly wages of the applicant amounted to Rs. 80 to Rupees 100. On or about the 10th of June, 1957 the applicant made an application under the said Act. In the first instance, he made only the Administrative Officer. Calcutta Dock Labour Board as the opposite party. Later on, he made an application that the appellant also should be made a party and accordingly it was made a party. Both the appellant and the Board contested the application. Before the Commissioner, the following issues were raised: "1. Is the claim maintainable against opposite party No. 1 and opposite party No. 2? 2. Is the applicant a workman within the meaning of Workmen's Compensation Act? 3 Did the alleged accident arise out of and in the course of applicant's employment under the opposite party No. 1 or opposite party No 2? 4. Was any notice of the accident served? 5 Has the applicant sustained any permanent partial disability? if so, to what extent? Before us, only the appellant was represented by Mr. Mukherjee but the respondents did not appear. As several Important points of law were concerned, we asked the Learned Standing Counsel and Mr. Dipankar Gupta to assist us as amicus curiae. We are grateful to them for the substantial assistance they have rendered to us. As regards the extent of disability, parties filed a joint petition under Rule 38 of the Workmen's Compensation Rules, referring the matter to the Commissioner for decision.
(2.) The first point to be considered is as to whether the original respondent, the Administrative Officer, Calcutta Dock Labour Board or the added respondent the appellant, was the 'employer' of the workman, within the meaning of the said Act. The Dock Labour Board is a statutory body constituted under the Dock Workers (Regulation and Employment) Act, 1948 (IX of 1948) for decasulisation of dock workers. The Board works under a scheme framed under Section 4 of the 1948 Act known as the Calcutta Dock Workers (Regulation and Employment) Scheme, 1956 (hereinafter referred to as the "Scheme"). The scheme made by the Central Government has for its object the assurance of greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of the dock work in the port of Calcutta. Employers of labour have to register themselves, and "registered employer" means stevedore whose name is, for the time being entered in the employers' register. A "reserve pool" means a pool of registered dock workers who are available for work and who are not for the time being in the employment of a registered employer or a group of employers, as a monthly worker. What happens is that the Administrative body of the Dock Labour Board allocates registered dock workers in the reserve pool, for work, to registered employers. Under Clause 37(2) of the said Scheme, a registered dock worker under the reserve pool, who is available for work is deemed to be in the employment of the Board, but under Clause 11(e)(i), for the purposes of allocation of work, the administrative body shall be deemed to act as an agent for the actual employer. Under Clause 3(g), a "dock employer" means a person by whom a dock employee is employed or is to be employed. The net result is that a registered dock worker is primarily in the employment of the Board but when the administrative body of the Board allocates a worker in the reserve pool to a registered employer, then for the time being and for the purposes of the work concerned, the worker becomes employed under the registered employer. According to the scheme, normally, registered employers can only employ registered workers at the docks and vice versa. We, therefore, think that for the purposes of this application, the appellant must be taken to have been the employer of the workman concerned and the applicant before the Commissioner was a workman within the meaning of tha said Act, working under him. The real issue to be decided in this case, is issue No. 3, namely as to whether the accident arose out of and in course of the applicant's employment under the appellant. I have already stated that the workman belonged to the reserve pool, and some time between 2-30 to 3-00 p.m. he went to the Call Stand and was booked for the afternoon shift commencing from 3-50 p.m., to work for the appellant at the vessel s. s. Khaybar then lying in berth 27 of the Kidderpore Docks, as a Khamali under the Sardar Ekbal. After he got his booking slip, he was going to join his work at the ship He was walking on the public road and when he had just come to the gate he was knocked down by a taxi and injured.
(3.) The learned Commissioner has held that although he had not actually taken up his work, he was proceeding to report for duty and therefore, there should be a notienal extension of time, and place and the accident should be taken to have arisen out of and in the course of applicant's employment. He has accordingly held in favour of the workman and assessed the loss at 10 per cent and granted a compensation of Rs. 420 to the opposite party. In this matter, we had several doubts, which have now been dispelled by the assistance rendered by learned Counsel acting as amicus curiae. The first doubt is as to whether the two respondents could be joined in one claim under the said Act, in the alternative. Under the Code of Civil Procedure, this can certainly be done. Under Section 23 of the said Act certain provisions of the Code of Civil Procedure have been extended to proceedings before the Commissioner, but all the provisions of the Code have not been made applicable. The learned Standing Counsel has, however, referred us to the decision of Sir Ashutosh Mookerjee in Chhayemannessa Bibl v. Basirar Rahman, (1910) ILR 37 Cal 369 at p. 404 where the learned Judge said as follows: "In the first place, it is clear upon the authorities that a Court has inherent power, in any particular case, to adopt such procedure as may be necessary to enable it to do that justice for the administration of which alone it exists: Panchanan Singha Roy v. Dwarka Nath Roy, (1906) 3 Cal LJ 29; Hukum Chand Boid v. Kamalanand Singh, (1906) ILR 33 Cal 927. As Mr. Justice Mah-mood observed in Narsingh Das v. Mangal Dubey, (1883) ILR 5 All 163 (FB) the Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law.' This is of course subject to the qualification that, in the exercise of its inherent power, the Court must be careful to see that its decision is based on sound general principles, and is not in conflict with them or the intentions of the Legislature. A similar view was emphasised by Lord Penzance in Kendal v. Hamilton. (1879) 4 AC 504 where he observed that procedure is the machinery of the law after all, the channel and means whereby law is administered and justice reached; it strangely departs from its proper office, when, in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern where it ought to subserve" In out opinion there does not seem to be any insuperable obstacle in the way of making the appellant as a party respondent, because it was the real employer The second doubt that we had, is as to whether the Dock Labour Board was an agent of the stevedores in relation to the employment of the workman As stated above, this doubt has also been dispelled and we have no hesitation in finding that the appellant was the employer of the workman Now I come to a consideration of issue No. 3. that is to say whether the accident arose in course of or out of the applicant's employment T regret to say that we are unable to agree with the finding of the Commissioner Upon this point in our opinion, the matter is covered by authority The first case to be cited is a Division Bench decision of this Court presided over by Lahiri. C. J . Commissioners for Port of Calcutta v. Mst. Kaniz Fatema. In that case, Md Ismail was a shedwriter of the appellant the Commissioners for the Port of Calcutta On December 1953, while he was proceeding along the Circular Garden Reach Road on a bicycle to join his duty in the Port Commissioners' Office, he was knocked down by a motor car and sustained injuries as a result of which he died on the following day The widow of Ismail, filed an application under the said Act which claim was resisted, inter alia on the ground that the accident did not arise out of or in the course of, his employment, inasmuch as he was knocked down in the public road, where he shared the risk in common with all the other members of the public. Lahiri, C. J. said as follows: "The question that we have to consider therefore is whether the proximity of place of accident to the place of employment makes the place of accident a part of the employers' premises. According to the finding of the learned Commissioner the accident took place on a public road at a distance of about 100 yards from the gate of the shed where the deceased used to work. The deceased had, therefore, not reached his employers' premises at the time when the accident occurred and the place of accident was not also the property of his employers. Can it then be said that the employment of the deceased began at the time or place when he met with the accident? it seems to me that the answer to this question must be in the negative. The law on the subject as laid down by the Supreme Court of our country and also by several decisions of English Courts is that subject to certain well-recognised exceptions, the employment of a workman does not begin until he has reached his place of employment and does not continue after he has left it. The question, therefore, is whether the present case comes under the genera] rule or under the exceptions. The risk which was incurred by the deceased in the present, case was not a risk incidental or peculiar to his employment, but a risk which the deceased shared with all the other members of the public. The risk of being knocked down by a passing vehicle on a public road is not incidental to the employment of the deceased, but it is a risk which is shared by every member of the public when passing along a public road." Bachawat I said a follows : "An employee works for his master. There is a time and place for his work. The employment has a spatiotemporal setting. It courses through the working hours and place of work The course of employment embraces the working hours and places of work and extends to such time and place as may reasonably be considered to be accessory thereto Other times and other places as a rule lie outside its course. Some special feature of the employment may extend its course so as to include within it other times and other places. In the case of an employee who lives away from his place of work, the period and the route of his journey to and from the place of work as a rule lie outside the course of his employment. The employment commences at the end of his journey from home and stops at the commencement of his return journey. A personal injury caused to the employee by accident in a public street or in a public place does not arise in course of his employment unless the employee is then rendering service to his employer or is then discharging some obligation imposed upon him by the contract of employment.";