Full Judgment Text
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PETITIONER:
GENERAL MANAGER, B. E. S. T.UNDERTAKING, BOMBAY
Vs.
RESPONDENT:
MRS. AGNES
DATE OF JUDGMENT:
10/05/1963
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1964 AIR 193 1964 SCR (3) 930
CITATOR INFO :
D 1984 SC 505 (21)
ACT:
Workmen’s Compensation-Accident to a bus driver-If
occurred in course of employment-Claim of compensation by
widow-Employer,if bound to pay-Workmen’s Compensation Act,
1923 (8 of 1923), s. 3 (1)-Standing Rules, rr. I (e), 3, 5,
9 (a), 10 (a) (b) (c), 12 (a), 19 (a) (b), 31 (a), 39 (a).
HEADNOTE:
One P. Nanu Raman was a bus driver of the appellant
corporation. After finishing the work for the day, he left
the bus in the depot, boarded another bus to go to his
residence and the bus met with an accident and, as a result
of the injuries received in that accident, he died. His
widow, the respondent, through an application in the Court
of the Commissioner for Workmen’s Compensation, claimed
compensation by reason of the death of her husband in an
accident alleged to have arisen "out of and in the course of
his employment". The application was dismissed by the
Commissioner, but on appeal the High Court passed a decree
in favour of the widow. Section 3 (1) of the Workmen’s
Compensation Act, 1923, is as follows :-
"If personal injury is caused to a workman by
accident arising out of and in the course of
his employment, his employer shall be liable
to pay compensation in accordance with the
provision of this chapter."
Held (per Subba Rao and Mudholkar JJ.), that under the
Rules, a bus driver is given the facility in his capacity as
a driver to travel in any bus belonging to the undertaking,
presumably, to enable him to keep up punctuality and to
discharge his onereous obligations. It is given to him not
as a grace, but is of right because efficiency of the
service demands it. Therefore the right of a bus driver to
travel in the bus in order to discharge his duties
punctually and efficiently was a
931
condition of his service and there was an implied obligation
on his part to travel in the said buses as a part of his
duty.
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Though the doctrine of reasonable or notional extension
of employment developed in the context of specific
workshops, factories or harbours, equally applies to such a
bus service the doctrine necessarily will have to be adapted
to meet its peculiar requirements. While in a case of a
factory, the premises of the employer which gives ingress or
egress to the factory is a limited one, in the case of a
city transport service, by analogy, the entire fleet of
buses forming the service would be the "Premises".
In the present case, therefore, the High Court was right
in saying that the accident occurred to Nanu Raman during
the course of his employment and, therefore, the respondent
was entitled to compensation.
Cremins v. Guest Keen & Nettlefolds Ltd. [1908] 1 K.B.
469, St. Helens Colliery Co. Ltd. v. Heurfson, [1924] A.C.
59, Aderman v. Great Western Rly. Co. [1937] A.C. 454,
Weaver v. Tredegar Iron and Coal Co. Ltd. (1940) 3 All.
E.R. 157, Dunn v. A.G. Lockwood& Co., (1947) 1 All. E.R.
446, Hill v. Butterley Co. Ltd. (1948) 1 All. E.R. 233,
Jenkims v. Elder Dempster Lines Ltd.’ (1953) 2 Ail. E.R.
1133 and Saurashtra Salt Manufacturing Co. v. Bai Valu Raja,
A.I.R. 1958 S.C. 881, held inapplicable.
Per Raghubar Dayal J.-Rule 19 cannot be construed as a
condition of service of the bus-drivers of the corporation
and, therefore, cannot artificially extend the period of
their duty and, consequently, the course of employment by
the time occupied in travelling by the bus if the bus driver
after discharging his duty or on his way to join duty
happens to travel by bus.
The present is not a case for notionally extending the
territorial area of the premises within which they had to
discharge their duty.
It is not possible to hold that the deceased was on duty
when be was travelling by the other bus and met with the
accident and that the accident arose out of and in the
course of his employment and, therefore, the respondent was
not entitled to receive any compensation.
S.S. Manufacturing Co v. Bai Valu Raja, A, I R. 1958
S.C. 881, relied on.
932
Dennis v. A. J. White & Co. [1917] A. C. 479, St. Hellens
Colliery Co. v. Hewitson, [1924] A.C. 59, Weaver v. Tredegar
Iron & Coal Co. Lid, (1940) 3 All. E.R. 157, Newton v.
Guest Keen & Netilefolds Ltd. (1926) 135 L.T. 386,
Longhurst’s cases, [1917] A.C. 249 and M’Robb’s case, [1918]
A.C. 304, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 133 of
1961.
Appeal by special leave from the judgment and order dated
July 29, 1959, of the Bombay High Court in First Appeal No.
317 of 1958.
G. S. Pathak, S. N. Andley and Rameshwar Nath, for
the appellant.
R. Ganapathy Iyer, for the respondent.
1963. May 10. The Judgment of Subba Rao and
Mudholkar.JJ.. was delivered by Subba Rao J. Dayal J.,
delivered a separate judgment.
SUBBA RAO J.-This appeal by special leave raises a short
but difficult question of the true construction of s. 3 (1)
of the Workmen’s Compensation Act (8 of 1923), hereinafter
called the Act, and its application to the facts of this
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case.
The Bombay Municipal Corporation, hereinafter called the
Corporation, runs a public utility transport service in
Greater Bombay and the said transport service is managed by
a Committee known as the Bombay Electricity Supply and
Transport Committee. The said Committee conducts the
transport service in the name of Bombay Electric Supply and
Transport Undertaking. The Undertaking owns a number of
buses and the Corporation employs a staff, including bus
drivers, for conducting the said service. One P. Nanu Raman
was one of such bus drivers employed by the corporation.
There,
933
are various depots in different parts of the City wherein
buses feeding that part are garaged and maintained. A bus
driver has to drive a bus allotted to him from morning till
evening with necessary intervals, and for that purpose he
has to reach the depot concerned early in the morning and go
back to his home after his work is finished and the bus is
lodged in the depot. The efficiency of the service depends,
inter alia, on the facility given to a driver for his
journey to and from his house and the depot. Presumably for
that reason Rule 19 of the Standing Rules of the Bombay
Municipality B.E.S.T. Undertaking permits a specified number
of the traffic outdoor staff in uniform to travel standing
in a bus without payment of fares. Having regard to the
long distances to be covered in a city like Bombay, the
statutory right conferred under the rule is conducive to the
efficiency of the service. On July 20, 1957, the said Nanu
Karnan finished his work for the day at about 7.45 p.m. at
jogeshwari bus depot. After leaving the bus in the depot,
he boarded another bus in order to go to his residence at
Santa Cruz. The said bus collided with a stationary lorry
parked at an awkward angle on Ghodbunder Road near Erla
Bridge, Andheri. As a result of the said collision, Nanu
Raman was thrown out on the road and injured. He was
removed to hospital for treatment where he expired on July
26, 1957. The respondent, his widow, filed an application
in the Court of the Commissioner for Workmen’s compensation,
Bombay, claiming a sum of Rs. 3,500/- as compensation by
reason of the death of her husband in an accident alleged to
have arisen "’out of and in the course of his employment".
To that application the General Manager of the B.E..S.T.
Undertaking, Bombay, was made the respondent, and he
contended, inter alia, that the accident did not arise "out
of and in the course of the employment" of the deceased.
Tile Commissioner dismissed the application accepting the
contention of the General Manager of the
934
B.E.S.T. Undertaking. On appeal, the High Court of Bombay
held that the said accident arose "out of and in the course
of the employment" of the said deceased and, on that
finding, passed a decree in favour of the widow for a sum of
Rs. 3,500/- with costs. The General Manager of the B. E. S.
T. Undertaking has preferred the present appeal against the
order of the High Court.
Section 3 (1) of the Act reads
"If personal injury is caused to a workman by
accident arising 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."
Mr. Pathak, learned counsel for the appellant, contends that
the words "arising out of and in the course of his
employment" are pari materia with those found in the
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corresponding section of the English statute, that the said
words have been authoritatively construed by the House of
Lords in more than one decision, that an accident happening
to an employee in the course of his transit to his house
after he left the precincts of his work would be outside the
scope of the said words unless he has an obligation under
the terms of the contract of service or otherwise to travel
in the vehicle meeting with an accident and that in the
present case Nanu Raman finished his work and had no
obligation to go in the bus which met with the accident and
his position was no better than any other member of the
public who travelled by the same bus.
On the other hand, Mr. Ganapati lyer, who was appointed
amicus curiae, argued that the interpretation sought to be
put on the said words by the appellant was too narrow and
that the true interpretation is that there should be an
intimate relationship between employment and the accident
and that
935
in the present case whether there was a contractual
obligation on the part of the deceased to travel by that
particular bus or not he had a right to do so under the
contract and in the circumstances it was also his duty in a
wider sense to do as ail incident of his service.
As the same words occur in the corresponding English
statute, it would be useful to consider a few of the leading
decisions relevant to the question raised.
In Cremins v. Guest, Keen & Nettlefolds, Ltd. (1), the
Court of Appeal had to deal with a similar problem. Cremins
was a collier in the employment of the company. He, along
with other employees, lived at Dowlais, six miles from the
colliery. A train composed of carriages belonging to the
appellants, but driven by the Great Western Railway
Company’s men, daily conveyed Cremins and many other
colliers from Dowlais to a platform at Bedlinog erected by
the appellants on land belonging to the said Railway
Company. The platform was repaired and lighted by the
appellants, and was under their control. The colliers were
the only persons allowed to use the platform, but there was
a station open to the public at a short distance. The
colliers walked from the platform by a high road to the
colliery, which was about a quarter of a mile from the
platform. A similar train conveyed the colliers from the
platform to Dowlais. The colliers were conveyed fret of
charge. Cremins was waiting on the platform to get into the
return train, when he was knocked down and was killed by the
train. His widow applied for compensation under the
workmen’s Compensation Act, 1906. Under s. 1 of the Act of
1906 she would be entitled to compensation if the accident
arose "out of and in the course of his employment". The
Court of Appeal held that the widow was entitled for
compensation.
(1) [1908] 1 K. B. 469.
936
Cozens-Hardy M. R. gave his reason for so holding thus : I
base my judgment on the implied term of the contract of
service ............". Elaborating the principle, he 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."
Fletcher Moulton L. J. in a concurrent judgment said much to
the same effect thus :
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"It appears to me that the workmen were ex-
pected to travel to and from the colliery by
the trains and in the carriages provided for
them by the employers, and that it was
intended by both parties that this should be
part of the contract of employment."
Though the accident took place on the platform, this
decision accepted the principle. that it was an implied term
of the contract of service that the colliers had to travel
to and from. the colliery by the trains provided by the
employers. In that case, there was certainly a right in the
colliers to use the train, but it is doubtful whether there
was a legal duty on them to do so. But the Court was
prepared to give a popular meaning to the word "duty" to
take in the "expectation" of user in the particular
circumstances of the case.
The house of Lords in St. Helens Colliery Company Ltd.
v. Hewitson (1), had taken a stricter and legalistic view of
the concept of "duty". There, a workman employed at the
colliery was injured in a railway accident while travelling
in a special colliers’ train from his work to his home at
Maryport. By an agreement between the colliery company and
the railway company the latter agreed to provide special
trains for the conveyance of the
(1) [1924] A. C. 59.
937
colliery company’s workmen to and from the colliery and
Maryport, and the colliery company agreed to indemnify the
railway company against claims by the workmen in respect of
accident, injury or loss while using the trains. Any
workmen who desired t, travel by these trains signed an
agreement with the railway company releasing them from all
claims in case of’ accident, and the colliery company then
provided him with a pass and charged him a sum representing
less than the full amount of the agreed fare, and this sum
was deducted week by week from his wages. The House of
Lords by a majority held that there being no obligation on
the workmen to use the train, the injury did not arise in
the course of the employment within the meaning of the Work-
men’s Compensation Act, 1906. Lord Buckmaster, after citing
the passage already extracted by us in Cremins’s Case
(1),stated, "I find it difficult, to accept this test" and
proceeded to observe :
"The workman was under no control in the
present case, nor bound in any way either to
use the train or, when he left, to obey direc-
tions; though he was where he was in conse-
quence of his employment, I do not think it
was in its course that the accident occured "
Lord Atkinson also accepted the said
principle, but he made an important
observation, at p. 70 .
" It must, however, be borne in mind that if
the physical features of the locality be such
that the means of transit offered by the
employer are the only means of transit
available to transport the workman to his
work, there may, in the workman’s contract of
service, be implied a term that there was an
obligation on the employer to provide such
means and a reciprocal obligation on the
workman to avail himself of them".
(1) [1908] 1 K.B. 469.
938
The learned Lord had conceded that a term of obligation on
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the part of the employee to avail himself of a particular
means of transit could be implied, having regard to the
peculiar circumstances of a case. Lord Shaw in a dissent
gave a wider meaning to the terms of the section. According
to him the expression "arising out of the employment"
applied to the employment as such to its nature, its
conditions, its obligations, and its incidents. He added
that a man’s employment was just as wide as his contract.
After noticing the terms of the bargain between the parties,
he concluded thus, at p. 86 :
"These arrangements continued for the whole
twelve years of service. The company and the
man were thus brought into intimate and
continual daily relations. The workman
secured his access to his work, the
company provided the means of transport."
Lord Wrenbury accepted the majority view and
laid down the test thus, at p. 92 :
"A useful test in many cases is whether, at
the moment of the accident, the employer would
have been entitled to give the workman an
order, and the man would have owed the duty to
obey it."
The learned Lord wag also prepared to imply a
term of duty under some circumstances, for he
observed :
"And there are cases which would, I suppose be
within what are called above the "incidents"
of the employment, in which the journey to and
from work may fall within the employment,
because by implication, but not by express
words, the employer has indicated that
939
route, and the man owes the duty to obey. But
the mere fact that the man is going to or
coming from his work, although it is a
necessary incident of his employment, is not
enough."
This decision accepts the principle that there should be a
duty or obligation on the part of the employee to avail
himself of the means of transit offered by the employer; the
said duty may be expressed or implied in the contract of
service.
The House of Lords again in Alderman v. Great Western
Railway Co.(1), considered this question in a different
context. There, the applicant, a travelling ticket
collector in the employment of the respondent railway
company, had, in the course of his duty, to travel from
Oxford, where his home was, to Swansea, where he had to stay
overnight, returning thence on the following day to Oxford.
He had an unfettered right as to how he spent his time at
Swansea between signing off and signing on, and he could
reach the station by any route or by any method he chose.
In proceeding one morning from his lodgings to Swansea
station to perform his usual duty, he fell in the street and
sustained an injury in respect of which he claimed
compensation. The House of Lords held that the applicant
was not performing any duty under his contract of service
and therefore the accident did not arise in the course of
his employment. The reason for the decision is found at p.
462 and it is :
"........ when he (the applicant) set out
from the house in which he had chosen to lodge
in Swansea to go to sign on at the station he
was (and had been ever since he had signed off
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on the previous afternoon) subject to no
control and he was for all purposes in the
same position as an ordinary member of the
public,
(1) [1937] A.C. 454, 462.
940
using the streets in transit to his employer’s
premises."
This case, therefore, applies the principle that if the
employee at the time of the accident occupies the same
position as an ordinary member of the public, it cannot be
said that the accident occurred in the course of his
employment. This is a, simple case of an employee going to
the station as any other member of the public would do,
though his object was to sign on at the said station.
In Weaver v. Tredegar Iron and Coal Co. Ltd.(1), the House
of Lords reviewed the entire law and gave a wider meaning to
the concept of "’duty". It was also a case of a collier.
He was caught up in a press of fellow workmen trying to
board a train and was pushed off the railway platform and
injured. The platform and train were both owned, managed
and controlled by a railway company, but the platform was
situated by the side of a railway line which ran through the
colliery premises owned by the workmen’s employers, and was
accessible from the colliery premises only. It was not open
to the public, and its name did not appear in the company’s
time table. Employees of the colliery used it under an
arrangement between their employers and the company whereby
specified trains were stopped at the platform to take the
men to and from their homes at a reduced fare, which was
deducted by the employers from the men’s wages. The men
were free to go home by means of the main road which ran
past the colliery, but in practice every employee used the
railway. The injured workman claimed compensation. The
House of Lords by a majority held that the accident arose in
the course of and out of the employment and the injured
workman was entitled to compensation. Lord Atkin posed the
question thus : "Is he doing something in discharge a duty
(1) (1940) 3 All. E.R. 157, 163, 164, 166.
941
to his employer directly or indirectly imposed upon him by
his contract of service ?" and answered :
"........ the word "duty" in the test has such
a wide connotation that it gives little
assistance as a practical guide."
He proceeded to state :
"Duty with the vague connotation given to it
above cannot be rejected, but it does not seem
to point very clearly to the desired goal.
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 w
orking is
left. In other words, the employment may run
on its course by its own momentum beyond the
actual stopping place."
After considering the decisions on the
subject, the learned Lord concluded thus :
"When all the cases have been looked at and
considered, one is finally brought back to the
words of the Act, "’the course of the employ-
ment". The course of the employment begins
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when the workman enters the employment, and it
ceases when he leaves the employment, it being
his duty to do both."
Lord Wright puts the same idea differently
thus, at 172
"In a case like the present, however, where a
man was simply using the usual and proper way
provided for leaving the colliery, I do not
see the relevance of the idea of duty, except
in the artificial sense that a man owes his
employers a duty to come to his work and to go
942
away when his work is ended. I think that it
is in some such sense that duty has been re-
ferred to in certain of the cases of this
nature."
Lord Romer applied the following tests to the
facts of the case, at p. 175 :
"In all cases, therefore, where a workman, on
going to, or on leaving, his work, suffers an
accident on the way, the first question to be
determined is whether the workman was at the
place where the accident occurred in virtue of
his status as a workman or in virtue of his
status as a member of the public."
He came to the conclusion that the employee in that case,
when the accident happened, was there only by virtue of his
status as an employee of the colliery. Lord Porter, dealing
with the test of duty, remarked thus, at p. 179 :
"In some cases, no doubt, it may be helpful to
consider whether the man owed a duty to his
employers at the time of the accident, and
indeed.if duty be construed with sufficient
width, it may be a decisive test, but, so
construed, to say that the man was doing his
duty means no more than that he was acting
within the scope of his employment. The man’s
work does not consist solely in the task which
he is employed to perform. It includes also
matters incidental to that task. Times during
which meals are taken, moments during which
the man is proceeding towards his work from
one portion of his employers’ premises to
another, and periods of rest may all be
included. Nor is his work necessarily
confided to his employer’s premises. The man
may be working elsewhere -e.g., in building a
house, or in work on the road, or in work at a
dock, the
943
question is not, I think, whether the man was
on the employer’s premises. It is rather whe-
ther he was within the sphere or area of his
employment."
Adverting to the question of alternative facilities, the
learned Lord pointed out, "However, if it is in the course
of his employment, the fact that he might have chosen an
alternative method does not disentitle him to recover".
After equating the expression " part of his duty" with "in
the course of his employment", he proceeded to observe :
"It is in the course of his employment, and,
if the phrase be used, it is part of his duty,
both to go to and to proceed from the work
upon which he is engaged, and, so long as he
is in a place in which persons other than
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those so engaged would have no right to be,
and indeed, in which lie himself would have no
right to be but for the work on which he is
employed, he would, I think, normally still be
in the course of his employment."
But the learned Lord took care to state that he was not
considering cases in which "the necessities of the work
compel the employee to traverse the public streets or other
public places." This decision, while it did not discard the
test of "duty", gave it a wider meaning than that given by
the earlier decisions. It was the duty of the employee to
go to the work spot and leave it and it would be his duty to
leave it by means of transit provided by the employer. The
exigencies of the service, the practice obtaining therein
and the nature of the service would be the guiding factors
to ascertain the scope of the duty.
The Court of Appeal in Dunn v. A.G. Lockwood & Co. (1),
implied such a term of duty under the
(1) (1947) 1 All. E.R. 446,
944
following circumstances. A workman, who lived at Whitstable
was employed to work at Margate. The terms of the
employment were that the workman might, though it was not
obligatory, travel from Whitstable to Margate by the 7.40
a.m. train from Whitstable, which arrived at Margate at 8.15
a.m. and that he was to be paid as from 8 a.m. While
proceeding one morning from Whitstable station by the most
expeditious route to his work he slipped and injured
himself. The Court held that there was a contractual
obligation imposed on the workman by the concession to go to
his work as quickly as possible after arrival at Margate
station; and that the accident, therefore, arose "out of
and, in the course of the employment" within the meaning of
the Workman’s Compensation Act. Lord Oaksey L. J., said
that the accident arose in the course of the workman’s
employment, because at that time he was performing a duty
which he owed to his employer by virtue of his contract.
From the permission given to use the 7.40 a.m. train,
although he was to be paid from 8 a.m., obligation was
implied on the part of the employee to proceed as quickly as
possible to his work by the most expeditious route after his
arrival at Margate. This decision illustrates the wider
meaning given to the test "duty", though the result was
achieved by implying an obligation in the circumstances of
the case. In Hill v. Butterley Co. Ltd. (1), a workman
while crossing her employers’ premises on her way to the
office to "clock in" before starting work, slipped on an icy
slope and was injured. Though there was no public right of
way, the inhabitants of the neighboring village were using
the part of the premises, where the accident happened,
without objection from the owners for reaching an adjoining
railway station. The Court held that the accident arose out
of and in the course of the employment. The fact that the
premises were used as a path way by the other members of
the, public did not prevent
(1) (1948) 1 All. D.R. 233.
945
the Court from holding that the employee met with the
accident in the course of her employment.
The Court of Appeal in Jenkins v. Elder Dempster Lines
Ltd. (1), once again construed the expression "arising out
of and in the course of employment". There, the ship in
which the deceased was employed moored against the harbour
mole of Las Palmas. At the landward end of the mole was a
gateway where police were stationed for the purpose,
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ostensibly, of keeping unauthorized persons off the mole,
but all kinds of people were allowed there and entry to it
was practically unrestricted. Shortly after the ship
moored, the ceased and other members of the crew went ashore
for a short while. When they were returning to the ship,
the policemen at the gate of the mole asked them which was
their ship and allowed them to enter the mole. In the
darkness, the deceassed fell over the side of the mole and
was drowned. In a claim by the widow against the employers
for compensation under the Workmen’s Compensation Acts, her
claim was not allowed. Sir Raymond Evershed, M.R., posed
the question thus : "Was the workman at the relevant time
acting in the scope of his employment ?" and answered
" . . . . . . . . . . . . . . . the
explanation, it is true, which the cases have
added will entitle him to say that he was if
his presence at the point where he met with
the accident is so related to his employment
as to lead to the " conclusion that he was
acting within its scope.
This decision lays down a wider test, namely, that there
should be a nexus between the accident and the employment.
This Court has considered the scope of the section in
Saurashtra Salt Manufacturing Co. v. Bai Valu Raja (2), and
accepted the doctrine of "notional extension" of the
employeer’s premises in
(1) (1953) 2 All B.R. 1133.
(7) A.I.R. 1958 S.C. 881,882,
946
the context of an accident to an employee. Imam J.,
delivering the judgment of the Court laid down the law thus:
"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
repasses 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."
On the facts of that case, this Court held that the accident
did not take place in the course of the employment.
Under s. 3 (1) of the Act the injury must be caused to
the workman by an accident arising out of and in the course
of his employment. The question, when does an employment
begin and when does it cease, depends upon the facts of each
case. But the Courts have agreed that the employment does
not necessarily end when the "down tool" signal is given or
when the workman leaves the actual workshop where he is
working. There is a notional
947
extension of both the entry and exit by time and space. The
scope of such extension must necessarily depend on the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20
circumstances of a given case. An employment may end or may
begin not only when the employee begins to work or leaves
his tools but also when he uses the means of access and
egress to and from the place of employment. A contractual
duty or obligation on the part of an employee to use only a
particular means of transport extends the area of the field
of employment to the course of the said transport. Though
at the beginning the word ’duty" has been strictly
construed, the later decisions have liberalized this
concept. A theoretical option to take an alternative route
may not detract from such a duty if’ the accepted one is of
proved necessity or of practical compulsion. But none of
the decisions cited at the Bar deals with a transport
service operating over a large area like Bombay. They are,
therefore, of little assistance, except in so far as they
laid down the principles of general application. Indeed.
some of the law Lords expressly excluded from the scope of
their discussion cases where the exigencies of work compel
an employee to traverse public streets and other public
places. The problem that now arises before us is a novel
one and is not covered by authority.
At this stage to appreciate the scope of "duty" of a bus
driver in its wider sense, the relevant Standing Rules of
the B. E. S. T. Undertaking may be scrutinized. We are
extracting only the rules made in regard to permanent bus
drivers material to the present enquiry.
Rule 31. (a) All applications for
Bus............ Drivers’ tests should be
written and signed by the applicant himself
x x x x x x
948
(i) Bus Drivers:
(1) The applicant shall be not less than 20
years of age and not more than 40 years of
age. Birth Certificates be produced in
doubtful cases.
x x x x x x
(1) After recruiting, the Undertaking’s
rules and regulations shall be explained to
those men by the Recruiting Clerk.
x x x x x x
Rule 5. All permanent members of the Traffic
Outdoor Staff will be supplied with uniforms
as per the chart attached.
x x x x x x
Rule 3. Calling time must be marked in ink by
the Starters on the time cards once a week in
the case of permanent men, and daily in the
case of extra men.
Rule 9. (a) Duty Hours : 8 hours per day
for............ Bus Drivers..............
Rule 10. Duties Permanent :
(a) Men who arrive in time and who work the
duty, they are booked for, will be mar
ked for 1
day’s pay. If, however, the hours of work
exceed the duty hours as laid down in Rule 9
(a), the excess hours will be entered as
overtime, payable as shown in Rule 25.
(b) Men who do not arrive at their call or
miss their cars will drop to the bottom of
Extra List for the day and are
949
not to be given work unless there is work
actually available for them in which case they
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will be marked as having come late and will
only be paid for the number of hours worked.
However, men given no work are to be marked
"Late-No-Work", and will receive no pay for
the day.
(c) Any man who misses his car more than
three times in a month whether he gets work or
not, will be reverted to Extra List.
Rule 1. (e) All............ drivers
(Buses......... who are late on duty by more
than one hour will be marked "’ABSENT".
Rule 12. (a) All exchange of duties requests
to be addressed to Traffic Assistant’s in-
charge of Depots for their sanction.
Rule 19. (a) Four members of the Traffic
Outdoor Staff in uniform are permitted to
travel standing on a double deck bus
irrespective of their designation, two on the
lower deck and two on the upper deck, On a
single deck bus two members are only
permitted.
(b) Traffic Staff in uniform shall not
occupy seats even on payment of fares.
Rule 39. (a) Men can be transferred from one
Depot to another only under the orders of a
Senior Traffic Officer. This will only be
considered if the succeeding depot is short of
staff.
The gist of the aforesaid rules may be stated thus: A bus
driver is recruited to the service of the B.E.S.T
950
Undertaking. Before appointment the rules and regulations
of the Undertaking are explained to him and he enters into
an agreement with the Undertaking on the basis of those
terms. He is allotted to one depot, but he may be
transferred to another depot. The working hours are fixed
at 8 hours a day and he is under a duty to appear punctually
at the depot at the calling time. If he is late by more
than one hour he will be marked absent. If he does not
appear at the calling time or "misses his car", he will not
be given any work for the day unless there is actually work
available for him. If he "misses his car" more than three
times in a month, he will be reverted to the extra list,
i.e., the list of employees other than permanent. He is
given a uniform. He is permitted to travel free of charge
in a bus in the said uniform. So long as he is in the
uniform be can only travel in the bus standing and he cannot
occupy a seat even on payment of the prescribed fare,
indicating thereby that he is travelling in that bus only in
his capacity as bus driver of the Undertaking. He can also
be transferred to different depots. It is manifest from the
aforesaid rules that the timings are of paramount importance
in the day’s work of a bus driver. If he misses his car he
will be punished. If he is late by more than one hour he
will be marked absent for the day; and if he is absent for 3
days in a month, be will be taken out of the permanent list.
Presumably to enable him to keep up punctuality and to
discharge his onerous obligations, he is given the facility
in his capacity as a driver to travel in any bus belonging
to the Undertakings. Therefore, the right to travel in the
bus in order to discharge his duties punctually and
efficiently is a condition of his service.
Bombay is a City of distances. The transport service,
practically covers the entire area of Greater Bombay.
Without the said right, it would be very
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951
difficult for a driver to sign on and sign off at the depots
at the scheduled timings, for he has to traverse a long
distance. But for this right, not only punctuality and
timings cannot be maintained, but his efficiency will also
suffer. D.W.I. a Traffic Inspector of B.E.S.T. Undertaking,
says that instructions are given to all the drivers and
conductors that they can travel in other buses. This
supports the practice of the drivers using the buses for
their travel from home to the depot and vice versa. Having
regard to the class of employees, it would be futile to
suggest that they could as well go by local suburban trains
or by walking. The former, they could not afford, and the
latter, having regard to the long distances involved, would
not be practicable. As the free transport is provided in
the interest of service, having regard to the long distance
a driver has to traverse to go to the depot from his house
and vice versa, the user of the said buses is a proved
necessity giving rise to an implied obligation on his part
to travel in the said buses as a part of his duty. He is
not exercising the right as a member of the public, but only
as one belonging to a service. The entire Greater Bombay is
the field or area of the service and every bus is an
integrated part of the service. The decisions relating to
accidents occurring to an employee in a factory or in
premises belonging to the employer providing ingress or
egress to the factory are not of much relevance to a case
where an employee has to operate over a larger area in a bus
which is in itself an integrated part of a fleet of buses
operating in the entire area. Though the doctrine of
reasonable or notional extension of employment developed in
the context of specific workshops, factories or harbours,
equally applies to such a bus service, the doctrine
necessarily will have to be adapted to meet its peculiar
requirements. While in a case of a factory, the premises of
the employer which gives ingress or egress to the factory
952
is a limited one, in the case of a city transport service,
by analogy, the entire fleet of buses forming the service
would be the "Premises". An illustration may make our point
clear. Suppose, in view of the long distances to be covered
by the employees, the Corporation, as a condition of
service, provides a bus for collecting all the drivers from
their houses so that they may reach their depots in time and
to take them back after the day’s work so that after the
heavy work till about 7 p.m. they may reach their homes
without further strain on their health. Can it be said that
the said facility is not one given in the course of
employment ? It can even be said that it is the duty of the
employees in the interest of the service to utilize the said
bus both for coming to the depot and going back to their
homes. If that be so, what difference would it make if the
employer, instead of providing a separate bus, throws open
his entire fleet of buses for giving the employees the said
facility ? They are given that facility not as members of
the public but as employees; not as a grace but as of right
because efficiency of the service demands it. We would,
therefore, hold that when a driver when going home from the
depot or coming to the depot uses the bus, any accident that
happens to him is an accident in the course of his employ-
ment.
We, therefore, agree with the High Court that the
accident occurred to Nanu Raman during the course of his
employment and therefore his wife is entitled to
compensation. No attempt was made to question the
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correctness of the quantum of compensation fixed by the High
Court.
Before leaving the case we must express our thanks to Mr.
Ganapati Iyer for helping us as amicus curiae.
In the result, the appeal fails and in the circumstances
is dismissed without costs.
953
RAGHUBAR DAYAL J. I am of opinion that this appeal should be
allowed.
The deceased, Nanu Raman was a bus driver of the
appellant Corporation. On July 20, 1957, he met with an
accident after he bad finished his duty for the day. The
duty finished at about 7.41 p. m. at Jogeshwari Bus Depot.
He then boarded another but in order to go to his house and
the bus met with an accident and, as a result of the
injuries received in that accident, he died. The question
is whether those injuries were caused to him out of and in
the course of his employment. If the injuries so arose, the
appellant Corporation would be liable to pay the
compensation. If they did not so arise, the appellant
Corporation will not be bound to pay compensation in
pursuance of the provisions of s. 3 of the Workmen’s
Compensation Act,, 1923 (Act VIII of 1923).
It is clear that the deceased was off duty when he
received the injuries. He had finished his duty for the
day.. He had left the bus on which he was posted that day.
He had not only left that bus, but had boarded the other bus
as a passenger. In view of r. 19 of the Standing Rules of
the Traffic Department of the B.E.S.T. Undertaking, he was
allowed to travel as he was in uniform. The question is
whether this concession was by way of a term of his service
and a part of the contract of service. I am of opinion that
it was not a part of the contract of service or a condition
of his service. Rule 19 is not with respect to the bus
drivers or with respect to ’the traffic staff of the
Corporation alone. The rule does not permit any number of
the employees of the traffic staff to travel by a bus free.
The rule deals with the persons who are allowed the
concession of free travelling on buses. The rule reads :
Free Travelling on Buses
"(a) Four members of the. Traffic Outdoor
954
Staff in uniform are permitted to travel
standing on a double deck bus irrespective of
their designation, two on the lower deck and
two on the upper deck. On a single deck bus
two members are only permitted.
(b) Traffic Staff in uniform shall not
occupy seats even on payment of fares.
(c) Municipal Councillors and non-
Councillors, Members of the Schools Committee
holding Tram-cum-Bus passes must occupy a
seat. They are not permitted to travel by
standing or in excess.
(d) One police officer above the rank of a
jamadar is allowed to travel free by standing.
All other ranks must occupy seats and pay
their fares.
(e) Meter Readers and Bill Collectors of the
Consumers’ Department and Public Lighters of
the Public Lighting Department are permitted
to travel in buses outside the Tramway Areas
when on Duty either in uniform or on
production of the Undertaking’s badge by
payment of Undertaking’s tokens. These tokens
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stamped "Service’ will be accepted in lieu of
cash and ticket issued.
(f) Traffic Officers and only those Officers
holding a bus-cum-Tram Pass and Silver Badge
and Bombay Motor Vehicle Inspectors holding
passes are permitted to travel standing and
may board the bus outside the Queue Order."
Clauses (c) to (e) allow the concession of free traveling to
persons other than the traffic staff. The rule cannot be a
term of contract with these persons. It
955
is just a privilege and a concession allowed to those
persons. The privilege is restricted in certain respects.
Clauses (a), (b) and (f) deal with concessions allowed
to the members of the traffic staff. It appears from cl.
(a) that the number of traffic outdoor staff which can
travel by a bus is limited to 4 on double decker buses and
to 2 on a single decker. They have to be in uniform. Even
if they purchase tickets on payment of fares they cannot
occupy seats if they happen to be in uniform. If this
concession of free travelling had anything to do with the
condition of service in order to ensure punctuality and
efficiency on the part of bus drivers keeping in con-
sideration the possibility of their travelling long distance
to and from their houses, in order to return from duty or to
join duty there should not have been any limitation on the
number of such staff travelling by a particular bus. It can
be possible that more than two or four members of the
traffic outdoor staff may be residing in neighbouring
localities and may have to join duty or to return to duty at
about the same time. Further, it would have been more
conducive for the efficient discharge of their duty if at
least on their way to join duty they were allowed to have a
seat on the bus in preference to travelling standing. There
could have been no justification for not allowing them to
occupy a seat on payment of fare. This is not allowed.
These considerations indicate to my mind that this rule
allowing the members of the traffic out-door staff to travel
free, but under certain limitations, On the buses, was not
connected with their service conditions or with the question
of their observing punctuality and discharging their duties
efficiently, but was merely a concession from the employer
to their employees. Such a conclusion is further
strengthened when the rule does not provide that this
concession is available to the staff only when they are
travelling from their houses to join duty or when
956
they arc returning home after finishing their duty. They
can take advantage of this privilege whenever they have to
travel by a bus. They have to simply put on uniform at that
time. The availability of the concession on their being in
uniform is not on account of their being supposed to be on
duty, on the way to or from their houses but on account of
the fact that the wearing of uniform would be an indication
and the guarantee of their being members of the traffic out-
door staff.
I therefore do not construe r. 19 as a condition of
service of the bus-drivers of the Corporation and therefore
do not construe it to artificially extend the period of
their duty and consequently the course of employment by the
time occupied in travelling by the bus if the bus driver,
after discharging his duty or on his way to join duty
happens to travel by bus.
The bus driver is not bound to travel by bus. He is not
bound to put on his uniform when travelling by such bus. If
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he does not want to have the concession and prefers to
travel comfortably by paying the necessary fare to occupy a
seat, be can do so by simply taking off his uniform and then
boarding the bus There is nothing in the circumstances of
the bus driver’s service, as shown to us, which should
induce me to hold that be had to travel perforce by the bus
on his way to join duty or on his return journey after
discharging his duty. Bombay may be a city of distances,
but every bus driver need not be residing far from the place
where he bad to join duty or to leave his duty. There is
nothing on the record to indicate that the salaries of these
bus drivers are such as would make it impossible for them to
spend on the railway tickets if they wish to travel by train
or on the bus sitting if they want to travel in comfort by
purchasing tickets. It is not therefore a case that out of
necessity the persons had to
957
travel by the buses of the Corporation and therefore it is
not a case for notionally extending the territorial area of
the premises within which they had to discharge their duty.
It is true that the bus service of the Corporation
extends over the entire city of Bombay but that does not
mean that the area of duty of a bus driver also becomes as
extensive as the area controlled by the buses of the
Corporation. The notional extension of the premises or the
area within which the bus driver works can at best be
extended to the bus which he is given to run during his duty
hours. The premises of the bus driver can be deemed to
include the bus’ and the responsibility of the employer can
be reasonably extended for injuries to bus drivers up to the
bus driver’s boarding the bus for discharging his duty and
up to his leaving the bus after discharging his duty.
Before his boarding the bus, the bus driver is not on actual
duty. He is not on duty subsequent to his leaving the bus
after the expiry of his duty hours. In this view of the
matter, the moment the deceased left the bus at the
jogeshwari Bus Depot after finishing his duty at 7.41 p. m.,
he was off duty. He was their free to travel as he liked,
for the purpose of returning home. The employers had no
control over him except in so far as he would not be
permitted to travel in uniform in the bus if there be
already the permissible number of traffic staff in uniform
on the bus. This control is exercised over him not because
he was the bus driver of the Corporation, but because he
wanted to travel in uniform against the provisions of r. 19.
The deceased had no duty connected with his employment as
bus driver towards the Corporation after he had left his bus
and boarded the other bus for going to his residence.
In these circumstances’ it not possible to say that the
deceased was on duty when he was travelling by the other bus
and met with the accident and
958
that the accident arose out of and in the exercise of his
employment.
In S. S. Manufacturing Co. v. Bai Valu Raja (1), this
Court laid down the following propositions in connection
with the construction of the expression ’in the course of
employment’. They are : (i) 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; (ii) as a rule the journey to and from the
place of employment is not included within the expression
’in the course of employment (iii) the aforesaid two
positions are subject to the theory of notional extension of
the employers’ premises so as to include the area which the
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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 employers’ premises; (iv) the facts and
circumstances Of each case will have to be examined very
carefully in order to determine whether the accident arose
within and in the course of employment or a workman keeping
in view at all times the theory of notional extention.
On the basis of the first two propositions, the deceased
cannot be said to have received the injuries in an accident
arising out of and in the course of his employment. The
third proposition does not cover the present case as I have
indicated above. The expression ’an area which the workman
passes and re-passes in going to and in leaving the actual
place of work, in proposition 3, does not, in view of what
is said in proposition No. 2, mean the route covered
necessarily in his trip from his house to the place of
employment or on his way back from the place of employment
to the house. This expression means such areas which the
employee had to pass as
(1) A.I.R. 1958 S.C. 881.
959
a matter of necessity and only in his capacity as employee.
Such areas would be areas lying between the place of
employment and the public place or the public road up to
which any member of the public can reach or use at any time
he likes. Such areas then would be areas which the
employees had, as a matter of necessity, to pass and re-pass
on his way to and from the place of employment, and will
either be areas belonging to the employer or areas belonging
to third person from whom the employer had obtained
permission for the use of that area by his employees. The
passing and re-passing over such areas is a matter of
necessity as it is presumed, in this context, that without
passing over such land or such area, the employee could not
have reached the place of his employment. It is in that
context that the area of the place of employment is extended
to include such areas over which the employee had, as a
matter of necessity, to pass and re-pass.
After discussing the facts of the particular case in the
light of the general propositions noted above this court
said at p. 883 :
"It is well settled that when a workman is 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."
The view I have expressed above is consistent with these
observations.
960
I may just note that the expression ’unless the very
nature of his employment makes it necessary for him to be
there’ in the above observation, contemplates employments or
duties of his employee necessitating the employee’s using
the public road or public place or a public transport in the
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discharge of his duty. One such case is the one reported as
Dennis v. A. J. White & Company (1).
Reference may be made to the cases reported as St.
Helens Colliery Co. v. Hewitson (2 ) and Weaver v. Tradegar
Iron & Coal. Co. Ltd. (3). In the former case a colliery
worker was travelling by the special train run by the
railway company under contract with the employer for the
convenience of the workman to and from the colliery and the
place of residence of the worker. He met with an accident
while so travelling. The question was whether he was
entitled to compensation from his employer. It was held by
the House of Lords that it was an inseparable part of the
contract of employment that the employee had obtained a pass
enabling him to travel and that he released his rights to
compensation in the case of accidents against the railway
company. Still it was Considered that this was not
sufficient to determine his right to compensation. The
facts of the present case are different and do not justify
the conclusion that it was a term of the contract of
employment of the deceased by the appellant that he would be
allowed to travel free by the buses of the Corporation. He
is not granted any such privilege of free travel. He had to
do nothing in return for such a privilege. The employee in
the aforesaid case had released his rights against the
railway company, The deceased in the present case did not
release any of his rights against the Corporation. Any way,
the House of Lords held that the employee was not entitled
to any Compensation. Lord Buckmaster said at p. 66 :
"The real question to my mind is whether, when
he entered the train in the morning, it
(1) [1917] A. C. 479.
(2) [1924] A.C. 59.
(3) 1940 3 All. R.R.
961
was in the course of his employment within the
meaning of the Act. I find it difficult to
fix the test by which this question can be
answered in favour of the respondent."
A similar question can be put in the instant case. It will
be difficult to say that the deceased entered the bus which
met with the accident in the course of his employment.
Lord Buckmaster further observed at p. 67
"The workman was under no control in the
present case, nor bound in any way either to
use the train or, when he left to obey
directions; though he was where he was in
consequence of his employment, I do not think
it was in its course that the accident
occurred."
It can be similarly said with respect to the deceased that
he was under no control of his employer when he was on the
bus and that he was not bound in any way to use the bus or
to obey the directions of his employer after he had left the
bus on which he was deputed for the day.
In the Weaver Case(1) the employee was held entitled to
compensation. The distinction in the facts of the two cases
is well indicated by Lord Romer in his speech at page 176 :-
"My Lords, upon this principle, it would seem
reasonably plain that the appellant in the
present case was entitled to compensation
which he seeks. After finishing his work at
the colliery, he proposed returning to his
home by train. In order to get to the train,
he passed directly from the colliery premises
on to a platform, which was the only means of
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access from the colliery to the train, and
upon which he had no right to be except by
virtue of his
(1) (1940) 3 All. E. R. 157.
962
status as an employee of the colliery. While
on the platform, and by reason of his being on
the platform, he met with an accident. In my
opinion, it was an accident arising out of and
in the course of his employment . The country
court judge and the Court of Appeal, however,
considered that they were precluded from
giving the appellant relief by the decisions
of your Lordships’ House in St. Helens
Colliery Co., Ltd. v. Hewitson(1) and Newton
v. Guest, Keen & Nettlefolds, Ltd. (2). My
Lords, if I am to accept the conclusion that
the effect of these two decisions is to
deprive the appellant in the present case of
any right to compensation under the Act, I
must, as it seems to me, necessarily suppose
that they lay down a principle inconsistent
with the principle which had already been
established by your Lordships’ House in
Longhurst’s Case(3) and accepted in M’Robb’s
case(4) and has since been affirmed and
applied in Mccullum’s case(5). As this is an
altogether impossible supposition, it is
necessary to ascertain what really were the
grounds of the decisions in Hewitson’s Case(1)
and Newton’s case (2). I need state in
detail the facts in Hewitson’s case (1). It
is sufficient to say that, if, in the present
case, an accident to the appellant had
occurred while he was actually in t
he train
travelling towards his home, the case would
have been in all material circumstances
comparable to HeWitson’s case(1). The two
cases would have been indistinguishable. The
workman in Hewitson’s case (1) however,
failed., upon the ground that he was under no
contractual obligation to his employer to be
in train. All their Lordships who were
responsible for the decision were at pains to
ascertain whether or not Hewitson was under
any such obligation. It would seem to follow
from this that they did not regard Hewitson
(1) [1924] A C. 58.
(2)(1926) 135 L.T. 386.
(3) [1917] A.C, 249.
(4) [1918] A.C. 304.
(5) (1932) 147.L.T. 316,
963
when in the train as being engaged upon one of
those acts which are always considered as
being part of a workman’s employment because
they are incidental to the employment proper.
They must have regarded him, in other words,
as a workman who had left the scene of his
labour and "the means of access thereto" with-
in the meaning attributed to those words in
the cases to which I have previously referred,
for, when a workman is engaged in performing
an act which is merely incidental to his em-
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ployment proper, it is hardly, if ever, true
to say that he is under a contractual
obligation to his employer to perform it."
In view of what I have stated above I hold that Nanu
Raman did not die of the injuries received in an accident
arising out of and in the course of his employment and that
therefore the respondent is not entitled to receive any
compensation from the appellant under s. 3 of the Workman’s
Compensation Act 1923. Therefore I would allow the appeal
with costs and set aside the order of the court below.
By COURT : Following the opinion of the majority, the
appeal is dismissed but in the circumstances without costs.
Appeal dismissed.
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