Judgment M.N. SHUKLA, J. 1. THIS is an extraordinary case in which the facts are somewhat unusual and which do not fit into the straight-jacket or any fixed formula. It has to be larelly decided on first principle. The facts briefly are that the deceased Abdul Rashid was working as a gangman in the railway Department at Etawah ; on 8-8-71, while on duty, he was crushed by Motor Lorry No. 5003. The injuries were fatal and he succumbed to them. According to the applicants, the wages of the deceased at the time of his death were Rs. 165/- per month. An application for compensation under section 3 of the Workmen's Compensation Act, 1923 was made by his widow, Mst. Noor Jahan for herself and as the guardian of the other dependents of the deceased. The Union of India contested the application and in their objections stated that Abdul Rashid was only working as a substitute panelled-gangman ; that at the time he was crushed by the lorry, he was not on duty, that the duty hours finished at 6 p m. It was not disputed that he was a 'workman' within the meaning of the Workmen Compensation Act, that his wages were Rs. 165/- per months, and that the claimants were his dependents within the meaning of this Act. 2. THE parties led evidence and on appraisal of the same, the Commissioner, Workmen's Compensation Etawah, by his order dated 12-4-76, allowed the claim and directed that Compensation to the tune of Rs. 7,000/- (Rupees seven thousand) together with interest at the rate of 6 per cent per annum from the date of accident, he paid to the claimants. It is this order which has been challenged in this appeal, preferred by the Union of India. In case the allegations made by the respondents are held to be established by the evidence, there would be no controversy with regard to the quantum of compensation. THE question, therefore, which arises for consideration, is as to whether the accident arose out of and in the course of the employment of the deceased. Before referring to the question of law, which have been canvassed in this appeal, it is essential to carefully scrutinise the evidence led by the parties, disentangle the correct facts from the vertex of controversy and record clear cut findings on the broad factual aspects of the case. Before referring to the question of law, which have been canvassed in this appeal, it is essential to carefully scrutinise the evidence led by the parties, disentangle the correct facts from the vertex of controversy and record clear cut findings on the broad factual aspects of the case. In short, the version on behalf of the claimants was that on 8-8-71, Abdu Rashid went to his place of duty, his duty hours being from 6 A.M. to 6 P.M with a break of three hours from 12 P.M. to 3 P.M. He worked at a particular site as a gangman in P.W.I Gang No. 4 between 11530/14 Km. and 11530/23 Km. till about 4.30 P.M. THEreafter, he was asked along with other gangman, working with him, to shift to another site for the purpose of cleaning the same and doing other odd jobs in connection with he 'Janmashtami celebrations. It is said that while he was being taken from the former site to the latter site in the company of other gangman, led by their Head known as the 'Mate' he was knocked down by a motor lorry and died as a result of the accident. On being informed about the same, his wife Mst. Noor Jahan reached the scene of accident, which had taken place on the public road towards the south of the railway track and the railway Malgodown. Obviously, the accident occurred before the deceased could reach the second site where he was required to do some work after he had been relieved from the first site at 4.30 P.M. THE defence of the present appellant, however, was that the deceased finished his duty at 6 P.M. and he was returning home along with other gangman and on the way he met with an accident which did not occur in the course of nor arose out of the employment. It has to be seen as to how far the version of the claimants is substantiated by the evidence on record, either by direct or circumstantial evidence. It is atruism that in such accident cases, the Court has often to fall back upon circumstantial evidence. As observed by Viscount Dunedin in Machkinon v. Miller 1909 S.C. page 373.,1909 S.C. page 373. It is atruism that in such accident cases, the Court has often to fall back upon circumstantial evidence. As observed by Viscount Dunedin in Machkinon v. Miller 1909 S.C. page 373.,1909 S.C. page 373. "each case must be dealt with and decided on its own circumstances and inferences may be drawn from circumstances just as much as results may be arrived at from direct testimony." The, first important feature of the defence evidence which has struck me in this case is a calculated attempt on the part of the witnesses to either suppress or soft-pedal the allegations about the 'Janmasthami' celebrations. If the" defence witnesses had been straight-forward and no such attempt had been made to conceal the full facts, their testimony would have inspired confidence. It is surprising that Mauzam Khan, D. W. 1 the Mate of the gang in which Abdul Rashid" was working, pretended complete ignorance about the 'Janmasthami' celebrations, referred to by the witnesses for the claimants. The case was clearly put to him in cross-examination, but he stated that he did not know if any special train was to go during that period or any arrangement had to be made for cleaning the area at the time of 'Janamasthami' and whether the accident had taken place before or after the 'Janamasthami' Likewise, D. W. 5 Ravindra Prasad Agarwal, permanent Way Inspector, Etawah, deposed in the same strain and said that he did not remember whether the 'Janamasthami' function was held prior to the occurrence or after it. I am inclined to agree with the appraisal of evidence made by the Commissioner, Workman Compensation, Etawah that these witnesses, being employees of the Railway Department, were deliberately evasive and were reluctant to deliver themselves of the true and complete facts which might have been favourable to the claimants and prejudicial to the employer. There is cogent evidence led on behalf of the claimants to prove that the workman was relieved from his duty at the first site at 4.30 P. M. and therefter he was directed to resume duty at the next site. Sita Ram A W. 1 is a Rikshaw - puller who passed that way, plying his rickshaw. He is an absolutely dis -interested person and there is no reason why his statement should not be believed. Sita Ram A W. 1 is a Rikshaw - puller who passed that way, plying his rickshaw. He is an absolutely dis -interested person and there is no reason why his statement should not be believed. It was in his rickshaw that the various tolls and impleaments, carried by the gangmen who accompanied the deceased, were taken to the residence of the Engineer where they were left, and thereafter, he went to the residence of the deceased in Naurangabad, and informed the widow of Abdul Rashid about the accident. It has come clearly in his statement that his rickshaw was engaged for that purpose at 5 or quarter to five P. M. at the place of accident, where he had reached at that time. This shows that the deceased and the other gangmen of the same group had been relieved of their duties at the first site prior to this. Another important witness in this connection is Kallu, A. W. 2,- who carries on the work of cycle repairing, etc. Near the railway crossing and the various gangemen employed in the Railway are his customers and come to him frequently for repairs, etc. and he was personally acquainted with them, including Abdul Rashid and his other companions. He disposed that the gangmen used to finish their work at 6 P. M. but on the day of the accident they had finished it at half past 4 P. M. He had met the mate, namely, Mauzam Khan that day and learnt from him that the work had finished early on the first site in order to enable the gangmen to perform duty at another site on account of the special train which had to be taken out and the arrangements which had to be made in connection with the 'Janamashtami' celebration by the railway employees. This witness personally knew Abdul Rashid, and he appears to be a truthful witness, and he deposed facts which were within his personal knowledge. He stated that although Abdul Rashid himself did not come to him at about 4.30 P. M. on that day, yet the other colleagues of the gang actually came to him at that time for repairs of their cycles. He stated that although Abdul Rashid himself did not come to him at about 4.30 P. M. on that day, yet the other colleagues of the gang actually came to him at that time for repairs of their cycles. One circumstance which is very imporant, and to which both he and Sitaram testified, was that although these gangmen had been relieved of their duties from the first site, they still carried their tools with them. This would j naturally suggest that the gangmen were required to do some other work over and above the one they had already completed on the first site. Another clue in the narrative of events finds support from the statement of R. P. Agarwal, D. W. 5, permanent Way Inspector to whom I have already referred. He stated that the tool box (the place where tools are stored and returned after finishing duty) was situate quite close to the first site where the gangmen were working (on the eastern side) and the workmen working at that site, used to deposit their tools at that place. The witness added that there was another tool box situate on the western site near the house of the Railway Engineer and the workmen used to deposit their tools at that tool box when they were posted to perform their duty on the western side. The statement of Sitaram A. W. 1, the rickshaw puller, is to the effect that he had carried the tools of the gangmen, placed in his rickshaw. He actually specified the tools as 'Panji' and 'Gainti' and said that he had left them at the Engineer's house. Coupled with these is the very cardinal circumstances in this case, namely, that the gangmen after completing their duty at the first site, had adopted a route which was not the usual route for returning home. This is a fact which has been admitted even by the Mate. It is wholly inexplicable as to why these gangmen adopted a longer and unusual route if they were returning home after completing their usual duty. Obviously they would also not be carrying their tools along with them, if they had completely finished their duty and there would be no tools left to be deposited at the other tool box on the western side, near the Engineer's house. 3. Obviously they would also not be carrying their tools along with them, if they had completely finished their duty and there would be no tools left to be deposited at the other tool box on the western side, near the Engineer's house. 3. THUS, on an over-all assessment of the evidence I believe the version set out on behalf of the claimants, notwithstanding the studious effort made on behalf of the defence not to let the true picture emerge before the Tribunal. I am, therefore, satisfied that Abdul Rashid was, on the date of accident, required after finishing his duty at the previous site at 4.30 P. M to reach another site for doing some special work in connection with the 'Janamashtami' celebrations. Now, the next question is whether on these facts it can be legitimately held that the accident arose in the course of employment and out of the employment. It cannot be doubted that these twin conditions must both coexist before it can be said that the employer has incurred the liability. The words 'out of and in the course of employment' are used conjunctively and not disjunctively. Section 3 of the Workmen Compensation Act significantly used the word 'employment' and not 'work' and the word 'employment' has a wider meaning than the word 'work'. It is well established that a man may be in the course of his employment not only when he is actually engaged in doing something in the discharge of his duty to his employer, but also when he is engaged in act 'belonging to and arising out of it'. In numerous cases it has been held that a workman is entitled to compensation even when he is injured before or after the employment provided he was doing something which was implied in or was necessarily connected with his contract of duty to his employer. The literal and rigid conception that employment is conterminous with the precise hour and time of duty, shown by the clock, is long exploded. The doctrine of what has come to be recorded as national extension of time and space in this context has come to stay. The literal and rigid conception that employment is conterminous with the precise hour and time of duty, shown by the clock, is long exploded. The doctrine of what has come to be recorded as national extension of time and space in this context has come to stay. If the evidence on behalf of the workmen in this case is believed, as it has actually found favour with me, it stands proved that the deceased was required by his employers to do work at the second site after he had been relieved of his duty at the first site at 4.30 P. M. I must, at this stage, refer to another significant and singular feature of the case in hand. Most of the authorities which have applied the doctrine of notional extension of the time of employment were concerned with cases where the accident had taken place outside the hours of duty i.e. either the hours of duty had been exceeded or were preceded. But in the instant case, the accident took place, according to the finding recorded by the Compensation Commissioner, which I affirm, at about 4.45 P. M. It is admitted in the written statement filed by the Railway itself that the hours of duty of the workmen were, as I have already observed, from 6 A. M. to 6 P. M. with three hours break from 12 P. M. to 3 P. M. The accident having taken place within the hours of duty at time when the deceased was proceeding to discharge his duty at the behest of his employers at the second site, the conclusion cannot be escaped that the accident occurred in the course of the employment. 4. SRI Lalji Sinha, the learned counsel for the appellant vehemently urged that at all events, the second requirement of section 3 of the Act in order to entitle a workman to compensation, had not been proved to exist by the evidence in this case. In the absence of this essential condition the employers could not be saddled with the liability to pay any compensation. In other words, the argument was that even if it be assumed that the accident had occurred in the course of employment, which fact was not true, it could not be said to have arisen 'out of the employment'. In the absence of this essential condition the employers could not be saddled with the liability to pay any compensation. In other words, the argument was that even if it be assumed that the accident had occurred in the course of employment, which fact was not true, it could not be said to have arisen 'out of the employment'. He referred me to several authorities in which the claim for compensation had been refused to an employee who had met with an accident on a public road, either on his way to or back from his place of employment. It is correct that by and large, a workman is not entitled to compensation in those cases where the accident occurs in a public place and the risk faced by him is not on account of his employment as such, but on account of his presence on the spot as a member of the public. In those situations it has always been held that the accident did not arise out of the employment unless the presence of the workman at the spot is traceable to an obligation imposed upon him by the employer himself. To take an illustration, if an electrician is employed for the purpose of repairing the electric poles on the high-way, his presence on the public street is itself is a part of the performance of his duty as an electrician. So is it in those cases where the employee is an errand boy and his duty consists in going about from place to place on the streets and carry messages. Barring such exceptional situations, the rule can be broadly stated that if the accident occurs at a public place, it cannot be logically inferred that even remotely there was the instrumentality of the employer and it arose out of the employment. But this general proposition does not, by any chance, exhaust all the possibilities or situations which may transpire in the course of human life. Yet another species of accidents with which we are not usually familiar and on which decisions may not have been rendered by courts, cannot be ruled out from the domain of possibilities. It is necessary to analyse the rationale behind the dictum that generally speaking for accidents at public places employer should not be held responsible. Yet another species of accidents with which we are not usually familiar and on which decisions may not have been rendered by courts, cannot be ruled out from the domain of possibilities. It is necessary to analyse the rationale behind the dictum that generally speaking for accidents at public places employer should not be held responsible. The underlying reason, as far as I can discern, appears to be that at such spits, the employer has no control over the employee and cannot regulate his movement. It is true that an employee has to reach his usual place of duty every day at a fixed hour and for that, as a normal human being, he would adopt the easiest and most comfortable route so that he may conveniently reach his destination in proper time. Nevertheless there is still a wide margin in which the person left is free to exercise his own choice. He may, in case of two equally convenient routes, adopt any one of them Human nature being what is, some would reach fairly in advance of the hour of duty, the others, less punctilious, may reach at the nick of time. Therefore, there is always room for individual vagaries. This is the back-bone of the principle on which the dictum of no liability for accidents at public places, appears to be founded. If, however, it is possible to create a situation in which an employee's passage even through a public place or highway becomes subject to regulation or control by his employer, I cannot understand as to why such cases may not form an exception to the general rule of no liability of the employer. To me, it appears that the facts of the instant case furnish such an exception. In fact, this principle has been accepted by courts of law in many notable cases of accidents. It has been highlighted in those English decisions, where such restraints or inhibitions have been imposed at the instance of the employer on the movements of the employee through a public place. I have no hesitation in placing within this category those cases which I might for convenience sake, describe as cases of compulsory or optional user of vehicle furnished by the employers. The famous collier case. In Cremins v. Guest, Keen and Nettle folds Ltd.(1908) 1 K.B. 469. illustrates this principle. I have no hesitation in placing within this category those cases which I might for convenience sake, describe as cases of compulsory or optional user of vehicle furnished by the employers. The famous collier case. In Cremins v. Guest, Keen and Nettle folds Ltd.(1908) 1 K.B. 469. illustrates this principle. Cremins, a collier alongwith other colliers, had to pass through a railway platform in order to reach the colliery, in which he worked. From the platform, the colliers had to walk by a high road to the colliery which was about a quarter of mile from the platform. A train conveyed the colliers from the platform to Dowslais which was the place of residence of Cremins. The colliers were conveyed free of charge. Cremins was waiting on the platform to get into the return train, when he was knocked down by the train and killed. His widow applied for compensation under the Workmen Compensation Act, 1906 and the same was allowed. Cozens- Hardy M. R. based his judgment on the implied term of contract of service and remarked, "........." 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." 'The opinion was endorsed by Fletcher Moulton, L. J. who observed, "It appears to me that the workmen were expected 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." Thus the case turned on the principle that it was one of the implied terms of the contract of service that the collier had to travel to and from the colliery by the train provided by the employers. 5. ADVERTING to the same principle in St. Helens Colliery Co. Limited, v. Hewitson,1924 A.C. 59.Lord show in a dissenting judgment said "the expression 'arising out of the employment' applied to the employment as such.........to its nature, its conditions, its obligations, and its incidents" a passage which has become historic on the tests applied to cases of accident. Lord Shaw added, "the workman secured his access to his work, the company provided the means of transport". Lord Shaw added, "the workman secured his access to his work, the company provided the means of transport". Lord Lrenbury agreeing with the majority view in the same case, however, elaborated the principle and said, ''there may be cases in which the facility provided by the employer for journey to and from the place of work may be justly regarded as one of the 'incidents' of the employment". In another collier case., namely, Weaver v. Tradegar Irgon and Coal Company Limited,1940 (3) All. E.R. 157. in which also all the employees used a particular platform and a train by long practice for access to the colliery, Lord Atkinson applied the same formula and posed the question "is he doing something in discharge of a duty to his employer directly or indirectly imposed upon him by his contract or service" and gave a wider connotation to the word 'duty' Lord Romer suggested the following rule of practice in the same case : "In all cases, therefore, where a workman, on going to, or on leading 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." 6. ANOTHER useful test of contractual liability was also suggested by Lord Wrenbury in the same case ; "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 principle underlined in these and many other cases of similar nature, decided by the English Courts, has been accepted and applied by the Supreme Court of India. I may refer to only one decision in this connection, namely, General Manager, B. E. S. T. Undertaking, Bombay, v. Agnes,(1950-77) 6 S.C.L.J. 4233 = A.I.R. 1964 S.C. 193 in which the drivers of B.E.S.T undertaking were given free transport facility in buses belonging to the undertaking from the depot to their houses and vice versa. The driver concerned met with an accident while going home from the depot It was held that the accident had occurred during the course of the employment and had arisen out of the employment. The driver concerned met with an accident while going home from the depot It was held that the accident had occurred during the course of the employment and had arisen out of the employment. Subba Rao, J summed up the crucial point in the case when he observed, "As the free transport is provided to the bus driver 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." 7. THUS, the broad points which may be culled from these various decisions in deciding as to whether in case of an accident suffered by an employee on a public street while proceeding to or returning from his place of duty, he is entitled to compensation are whether at that moment he was obliged to be present on that site by the express or implied terms or contract of his service, whether he was there in his capacity as an employee or merely as a member of the public whether he was at that time, under the control or direction of the employer or was acting as a completely free person, whether his presence on the spot was incidental to his employment, and whether there was a proximate connection between the employment and the accident. As I have already pointed out, cases where compensation has been allowed to workman, who became victims of accidents on a public street, are few and far between. One of the rare cases which have accepted the workman's claim to compensation on account of such accidents on public streets and which on facts affords, in my opinion, a close parallel to the instant case, is the one reported in Blee v. London and North Eastern Railway Compmy1938 Appeal Cases page 126. One of the rare cases which have accepted the workman's claim to compensation on account of such accidents on public streets and which on facts affords, in my opinion, a close parallel to the instant case, is the one reported in Blee v. London and North Eastern Railway Compmy1938 Appeal Cases page 126. The facts of that case were that a ganger in the service of a railway company was by the terms of his contract or service liable to be called upon in case of emergency to go to the place where the emergency had arisen, notwithstanding that he might have finished his normal day's work, and when so called upon after his normal day's work, he was entitled to be paid overtime from the hour he left his home in order to proceed to the place where the emergency had arisen. One night, after he had completed his day's work and after he had gone to bad, he received a message requiring him to go to a certain siding to assist in replacing a derailed truck, and in compliance with that order he rose and was proceeding to the siding when he was knocked down in the street by a motor car and sustained injuries from the effects of which he died. On a claim for compensation by his widow, it was held that as the deceased man was obliged by the terms or his contract to obey an emergency call at any hour, a- he was paid from the time he left his home in obedience to the call, and as he was obliged to proceed with reasonable despatch to the place where his services were required, there was evidence to support the finding of the country court judge that the accident arose out of and in the course of the deceased man's employment, and, therefore, his widow was entitled to compensation. Lord Akin was at pains to clarify the legal position and observed that there were special facts in that case which afforded evidence from which the Judge could infer that from the time the workman started from his house, he was "actually engaged in the performance of his contract of service.'' The circumstances specially relied upon by his lordship were that the deceased was under a duty" to obey the emergency call at any hour, and the fact that the workman was paid from the time he left the house so that the time was his master's time and he was under an obligation to proceed with reasonable despatch by the reasonably shortest route." 8. LORD Maugham, concurring with the above view, remarked that, "in case of emergency call, it is I think, a sufficient ground for taking the view that he was bound as from the moment when he left his house to proceed with all reasonable expedition by the nearest available route to the place to which he had been summoned. We can test the view of the arbitrator by supposing that a superior officer of the company happened to meet the workman loitering on his way to the place or diverging from the proper route. Could not the officer properly have ordered the workman to proceed direct to the place to which he has been called ? The circumstance as to payment affords, I think a decisive answer in the affirmative. The case of a workman going to his ordinary daily work is plainly quite different. LORD Roche elaborated the same principle in these words, "a workman may be acting in the course of his employment or, put more shortly, he may be on duty, when in a public street Ordinarily he is not so acting when proceeding to the place where his work properly begins. But he may be so if he is proceeding to that place by a prescribed route or by a prescribed means of conveyance.........When Blee was summoned from his bed and was directed to proceed, in his employers' time, for which he was paid, to Hornsey siding, he was in my opinion, bound to so proceed with all possible speed by the shortest possible route. His time was not his own A servant carrying a message for his employer through the public streets may be on duty or in the course of his employment whilst so doing. He is usually under no control exercised immediately ; but ordinarily he owes a duty to his employers as to the manner in which he proceeds. He is on duty. Similarly in this cass the special circumstances to which I have referred constitute, as I think, evidence to support the conclusion that the appellant was on duty at the time of the accident. Accordingly, I am of opinion that there was evidence which in law entitled the learned country court judge to find that the accident arose out of and in the course of the deceased man's employment.'' I find no difficulty in applying the ratio of the above case to the facts of the one in hand. I think all the tests which have emerged from the facts of different cases as they came for decision, which may be said to form an exception to the general rule of no compensation of accidents on public streets, are present in the case before me. I have recorded a finding that Abdul ashid was not a lone pilgrim on the way. He was in good company of other members of the same gang, and the whole team was being led and controlled by their effective boss, designated as the Mate. The workman was not free to go by whatever route he wished or proceed at whatever time he chose and if he had attempted any aberration, the Mate would have come down upon him. He was, according to the conclusion that I have reached on the evidence, proceeding to perform his duty at the other site and was not only well within the prescribed hours of his duty, but was also under the direct vigilance and supervision of his masters' representative, namely, the Mate. His presence on that route at the time of accident was clearly traceable to his obligation in connection with his employment. He was, therefore, present there, not as a member of the public, but in his capacity as an employee, and certainly one can see the casual relationship between the accident and the employment. His presence on that route at the time of accident was clearly traceable to his obligation in connection with his employment. He was, therefore, present there, not as a member of the public, but in his capacity as an employee, and certainly one can see the casual relationship between the accident and the employment. There was a proximate connection between the employment and the accident and once the claimant has established this, unless there is adequate evidence in rebuttal, he should, in law be entitled to compensation. 9. THUS, in my opinion, the order of the Compensation Commissioner was perfectly correct and must be upheld. There is no force in this appeal and it is accordingly dismissed with costs.