JUDGMENT - CHANDURKAR M.N., J.: - The question which has been raised in this petition filed by the petitioner, who was An employee in the Stores Department of the B. E. S. T. Undertaking, relates to the construction of a clause in the agreement dated 21st May 1965, which provides for accident compensation payable to an employee of the B. E. S. T. The clause reads As follows:- “Employees injured in accident arising out of employment shall be paid full wages during the period of incapacity except in cases where the cause of the accident could be attributed beyond a reasonable doubt to the negligence on the part of the employee concerned.”(Italics ours.) 2. This clause has Also been construed by a Division Bench of this Court in(Bombay Municipality v. P. Ganapathy)1, 1976 Lab. I.C. 1472.. Since according to the learned counsel appearing for the petitioner, that construction runs counter to an earlier decision of this Court in(Bhagubai v. General Manager, Central Railway)2, A.I.R. 1955 Bom 105. it was contended that the decision in Ganapathys case required to be reconsidered. 3. The petitioner was A clerk having a designation of Shop Recorder working at the Tardeo Bus Depot. His hours of work were from 5-30 p.m. to 2 a.m. and he had finished his work at 2 a.m. in the early hours of the morning of 4-5-1973. The petitioner was A resident of Byculla and, according to him, the only route to go from the Tardeo Depot to Byculla was Bus Route No. 65. The Bus Stop, according to him, was just opposite the Tardeo Depot, and just As he had crossed the road after coming out of the Tardeo Depot, a taxi suddenly came from the left side with speed, but without lights, and knocked down the petitioner and sped away. The petitioner, it is not disputed, had to be treated for a fracture of the thigh bone and was Away from duty from 4th May 1973 to 12th October 1973. The petitioner claimed full salary for the above period in pursuance of the agreement dated 21st May 1965 reproduced earlier, by an application made to the Labour Court at Bombay under section 33C(2) of the Industrial Disputes Act. 4. The petitioner claimed full salary for the above period in pursuance of the agreement dated 21st May 1965 reproduced earlier, by an application made to the Labour Court at Bombay under section 33C(2) of the Industrial Disputes Act. 4. The B. E. S. T. Undertaking denied the claim on the ground that the accident did not arise out of employment and, therefore, the petitioner was not entitled to compensation under the relevant clause. The Under-taking also pleaded that the accident had occurred solely due to the negligence on the part of the petitioner. 5. The Labour Court held that the petitioner was off duty at the time when the accident took place and there was nothing on record to show that the facility of free transport was Available to the petitioner and, therefore, the theory of notional extension of employees premises propounded by the Supreme Court in(B. E. S. T. Undertaking v. Mrs. Agnes)3, A.I.R. 1964 S.C. 193. could not be applied to the case of the petitioner. With regard to the contention of the Under-taking that the accident occurred due to the negligence of the petitioner, the Labour Court held that the accident had not occurred due to the negligence of the petitioner. The claim made by the petitioner was, therefore, rejected. This order is now challenged by the petitioner in this petition. 6. Mr. Gokhale appearing on behalf of the petitioner has fA.I.R.ly brought to our notice the decision of the Division Bench in Ganapathys case which exjaressly dealt with the clause in question. In that case, the claimant was A Bus-Shunter in the employment of the Undertaking and he had left his residence at Kurla at about 6.30 a. m and boarded a B. E. S. T. bus in order to proceed to Sion from where he had to take another B. E. S. T. Bus in order to report for duty at Dadar. Between Kurla and Sion, the driver of the bus in which the claimant was travelling, applied the emergency brake, which caused a jerk, As A result of which the claimant sustained an injury to his back and was in plAster for about three and a half months. Between Kurla and Sion, the driver of the bus in which the claimant was travelling, applied the emergency brake, which caused a jerk, As A result of which the claimant sustained an injury to his back and was in plAster for about three and a half months. Apart from the payment to which the claimant was entitled under section 4(1), (d) of the Workmens Compensation Act, 1923, the claimant also made a demand on account of accident compensation under the agreement dated 21st May, 1965. Dealing with this case, the Division Bench had to find out whether the accident arose out of employment, because it was contended on behalf of the Undertaking before the Division Bench that the accident not having arisen out of the claimants employment or in the course of his duties AS A Bus-Shunter, the claimant was not entitled to accident compensation under the clause reproduced earlier. Pointing out that the two phraseologies “arising out of” and “in the course of” were distinct and separate, the Division Bench observed As follows : “These two phraseologies, viz. arising out of and in the course of are distinct, separate “and independent of each other, without the one having any nexus or connection with the other. The one cannot be read or confused with, or substituted for, the other. The words in the Agreement, arising out of employment, are necessarily less wide than the words, in the course of employment. The words, arising out of employment, unlike the words in the course, of employment, must necessarily mean that the incident must be the direct result of, and must be immediately connected with, the employment and the performance of the duty of the worker concerned. Mr. Singhvi is correct that the legal fiction of notional extension of time and place given to the words, in the course of employment, cannot be given to the words arising out of employment. Hence it cannot be said that the accident had any nexus with the 1st respondents employment, which would entitle him to the additional amount claimed by him.” 7. It is this construction which, according to the learned counsel for the petitioner, is not justified but it is fairly conceded that if the construction placed on the terms of the agreement dated 21st May 1965 is correct, then the petitioner would be out of Court. 8. It is this construction which, according to the learned counsel for the petitioner, is not justified but it is fairly conceded that if the construction placed on the terms of the agreement dated 21st May 1965 is correct, then the petitioner would be out of Court. 8. The reason why this construction, according to the learned counsel, is not correct is, that there is no discussion in the judgment of the view taken by an earlier Division Bench of this Court in Bhagubais case(supra). That case arose under the provisions of Workmens Compensation Act. The deceased husband of Bhagubai was A Mukadam employed in the Central Railway at Kurla Station and he lived in the railway quarters Adjoining the Kurla railway station. The only access for the deceased from his quarters to the Kurla railway station was through the compound of the railway quarters. On 20-12-1952 the deceased left his quarters A few minutes before midnight in order to join duty and immediately thereafter he was stabbed by some unknown person As A result of which the deceased died. It was not disputed in that case that the accident arose in the course of the employment of the deceased. What was disputed was that the accident did arise out of the employment of the deceased. The Commissioner for Workmens Compensation held that the accident did not arise out of the employment and therefore dismissed the claim made by the widow. That is how the matter came in appeal before the High Court. 9. The Division Bench in that case observed that there must be a causal connection between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased, a test which has now come to be well established As we shall point out later. The Division Bench also pointed out that the cause contemplated was the proximate cause and not any remote cause and observed : “The authorities have clearly laid down that if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connection is established between the accident and the employment. It is now well settled that the fact that the employee shares that peril with other members of the public is An irrelevant consideration. It is true that the peril which he faces must not be something personal to him; the peril must be incidental to his employment. It is Also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do with his own action or his own conduct, but it is A peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril, a causal connection is established between the employment and the accident.” The Division Bench with reference to the facts of that case pointed out that the employee while in the course of the employment found himself in a spot where he was Assaulted and stabbed to death, and that he was placed in the place where he was murdered by reason of his employment. The connection between the employment and the accident was established, according to the Division Bench, because of the fact that the employee was in the place where he was murdered by reason of his employment because otherwise he would have been safely in his bed but for the fact that he had to join duty and he had to pass the spot in order to join his duty. 10. Relying on this decision, Mr. Gokhale has vehemently contended that the facts in the present case are substantially the same As in the case before the Division Bench in Bhagubais case, the only difference being, according to the learned counsel, that in Bhagubais case the deceased was going to the place of work, while in the instant case the petitioner had finish-ed his work and was on his way back home. Therefore, according to the learned counsel, on the ratio of the decision in Bhagubais case, the Labour Court should have granted accident compensation in terms of the clause reproduced above. 11. The main stay of the argument of Mr. Therefore, according to the learned counsel, on the ratio of the decision in Bhagubais case, the Labour Court should have granted accident compensation in terms of the clause reproduced above. 11. The main stay of the argument of Mr. Gokhale is the principle of fictional extension of the employment in terms of time or place and, according to the learned counsel, once this principle has been accepted by Courts, merely because the petitioner had left his place of work, it could not be said that the accident in question did not arise out of his employment. Now, one of the important distinguishing feature, which distinguishes the present case from the decision in Bhagubais case, is that in that case the Division Bench was concerned with the provisions of section 3 of the Workmens Compensation Act, which provides that 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 Chapter II of the Act. Before a claim under section 3(1) of the Act is decreed, the fact that the accident arose out of and in the course of employment has to be shown. The clause which is material for the purposes of present case makes no reference to an injury caused by an accident in the course of employment. Accident compensation in terms of the clause is payable only where the employee is injured in an accident arising out of employment. 12. The concept contemplated by these two material phrases, viz. “arising out of employment” and “in the course of employment”, have now become the subject-matter of an authoritative pronouncement of the Supreme Court in(M. Mackenzie v. I. M. Issak)4, A.I.R. 1970 S.C. 1906. That was, no doubt, a case dealing with the claim under section 3 of the Workmens Compensation Act, but the Court has dwelt upon the meaning of the two phrases in paragraph 5, where it has been observed As follows : “To come within the Act the injury by accident must arise both out of and in the course of employment. The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words, there must be a causal relationship between the accident and the employment. The expression arising out of employment is Again not confined to the mere nature of the employment. The expression applies to employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.” The decision of the Supreme Court will, therefore, make it clear that in order that an injury can be said to be caused by an accident arising out of employment, it had to be established that the accident had occurred, on account of a risk which is An incident of the employment. If the accident arises out of a risk, which is not an incident of employment, then the accident cannot be said to have arisen out of employment. Indeed, in a case where, As in the case of the clause in question, all that has to be pointed out or established is that the accident has Arisen out of employment, there would be no scope for the doctrine of extension on which so much has been said by the learned counsel for the petitioner on the basis of the Supreme Court decision in B. E. S. T. Undertaking v. Mrs. Agnes(supra). That decision will show that the notional extension is an extension of the premises of the employer and is merely material for the purpose of determining whether the accident has taken place in the course of employment. Agnes(supra). That decision will show that the notional extension is an extension of the premises of the employer and is merely material for the purpose of determining whether the accident has taken place in the course of employment. The majority judgment in that case has traced in great detail the origin of the doctrine of notional extension of the employers premises. 13. That case arose also out of a claim in respect of an injury caused by an accident in Bombay. The claimant in that case was A bus driver. A bus driver had to drive the bus Allotted to him from morning till evening with necessary intervals, and for that purpose he had 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. One of the Standing Rules of the Bombay Municipality B. E. S. T. Undertaking permitted a specified number of the traffic outdoor staff in uniform to travel standing in a bus without payment of fares. The said rule was found to be a statutory right conferred on the employee and conducive to the efficiency of the service. The bus driver had 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. This bus collided with a stationary lorry on Ghodbunder Road and As A result of the collision, the driver who was travelling in the bus was thrown out of the bus And injured. He later died and his widow filed a claim for compensation. On behalf of the Undertaking it was contended that the accident did not arise out of and in the course of the employment of the deceased which was Accepted by the Commissioner but the decision of the Commissioner was reversed by the High Court. Against the decision of the High Court, the appeal was filed before the Supreme Court. 14. On behalf of the Undertaking it was contended that the accident did not arise out of and in the course of the employment of the deceased which was Accepted by the Commissioner but the decision of the Commissioner was reversed by the High Court. Against the decision of the High Court, the appeal was filed before the Supreme Court. 14. Referring to the peculiar traffic conditions of Bombay, which was described As A City of distances, where the transport service practically covers the entire area of Greater Bombay, the Supreme Court found that but for the right which was given to the bus driver to travel on the buses owned by the Undertaking, punctuality and timings could not be maintained and his efficiency would also suffer. The Supreme Court held that As A free transport was provided in the interest of service, having regard to the long distance the driver has to traverse to go to the depot from his house and vice versa, the user of the said buses was A proved necessity giving rise to an implied obligation on his part to travel in the said buses AS A part of his duty. It was pointed out that the driver was not exercising the right As A member of the public but only As one belonging to service and “the entire Greater Bombay is the field or area of the service and every bus is An integrated part of the service.” It was then pointed out: “Though the doctrine of reasonable or notional extension of employment developed in the context of specific workshop factories or harbours equally applies to such a bus service, the doctrine necessarily will have to be adopted 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.” On facts the Supreme Court took the view 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 employment.” 15. It will, therefore, appear that the decision in Mrs. It will, therefore, appear that the decision in Mrs. Agnescase turned on certain facts which led to the conclusion that the entire fleet of buses in which a driver was entitled to travel in the interest of efficiency and in the interest of regularity and punctuality was considered to be premises And consequently the accident was held to have been caused in the course of employment. We may point out that in the said decision, the Supreme Court was referred to the decision of House of Lords in St. Helens(Colliery Co. Ltd. v. Hewitson)5, 1924 A.C. 59. in which Lord Wrenbury dealing with the question As to whether journey to and from work may fall within, employment had observed As follows: “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... . 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 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.”(Emphasis supplied). With regard to these observations, the Supreme Court pointed out that 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. These observations Again will highlight the fact that the principle of notional extension of the employers premises does not automatically apply in a case where an accident has taken place while the man is going to or coming from his work, though going back from work or going to work can be said to be an accident of employment. These observations Again will highlight the fact that the principle of notional extension of the employers premises does not automatically apply in a case where an accident has taken place while the man is going to or coming from his work, though going back from work or going to work can be said to be an accident of employment. The doctrine of notional extension can apply only, as pointed out by the Supreme Court, where there is A duty or an obligation on the part of the employee to avail himself of the means of transit offered by the employer, though the said duty may be express or implied in the contract of service. 16. It is useful to point out that the Supreme Court has in that case also referred to another decision of the House of Lords in(Alderman v. Great Western Rly. Co.)6, 1937 A.C. 454. The applicant in that case was a travelling ticket collector in the employment of the respondent railway company and had, in the course of his duty, to travel from Oxford, where his home was, to Swansea, where he had to stay overnight, returning from there on the following day to Oxford. The applicant had an unfettered right As to how he spent his time As Swansea between signing off and signing on, and he could reach the station by any route or by any method he chose. While 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 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 was stated in the following words: “......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 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, using the streets in transit to his employers premises.......” Referring to these observations, with approval, the Supreme Court pointed out that Aldermans case 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, and that was A 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. 17. These cases were, no doubt, distinguished in Mrs. Agnes case because of the peculiar facts under which the traffic in Bombay is regulated and carried on and the special rights which the driver involved in that case had of travelling in any bus belonging to the B. E. S. T. 18. If the decisions considered by the Supreme Court in Mrs. Agnes case are properly appreciated, it would be very clear that the petitioner in the instant case was no different from any other ordinary person who was going to catch a bus for going to his residence. On facts found, the accident cannot even be said to have taken place in the course of employment much less can it be said to have arisen out of employment. 19. Mr. Gokhale at this stage has contended that it was never any dispute between the parties that the facility of travelling on a bus belonging to the B. E. S. T. Undertaking, though at one time was restricted only to the drivers And conductors, has now been made available to even clerical staff like the present petitioner. It is difficult to appreciate what the learned counsel meant by saying that it was never disputed. It is difficult to appreciate what the learned counsel meant by saying that it was never disputed. It was really never put in issue. We have gone through the application made to the Labour Court. It has not even been alleged that the petitioner could As A matter of right get into any bus going from Tardeo to Byculla. Indeed, that also was not enough, because what was required to be found out was whether at that hour of the early morning at 2 a.m. there was really any bus going from Tardeo Depot to Byculla. These were facts which had to be established and could not be Assumed in favour of the petitioner, nor could they be allowed to be agitated at this stage for the first time. 20. It is well known that apart from the fact that the doctrine of notional extension of employment in both time and place has to be considered on the facts of each case, and such notional extension cannot be Assumed always in every case, the matter is now well settled by the decision of the Supreme Court in(Saurashtra Salt Manufacturing Co. v. Bai Valu Raja)7, A.I.R. 1958 S.C. 881. The following passage from that decision is instructive : “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 employers 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 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. There may be 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. 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.” It was then pointed out by the Supreme Court As follows : “It is well settled that when a workman is on a public road or a public place or on a public transport he is there As Any other member of the public and it 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.” 21. In the background of these decisions when we consider the decision in Bhagubais case, it becomes clear to us that that decision was reached purely on the facts of that case, by the application of extension doctrine. So far As the present case is considered, when the petitioner walked out of Tardeo depot, he was walking along the street like any other citizen and if in the course of his walk with a view to reach the Bus-stop an unknown taxi driver has struck him down and injured him, it is difficult for us to see how any causal connection between the petitioners employment and the accident can even remotely be established. The injury cannot be said to have been caused by an accident which arose out of employment. It is true that the decision in Ganapathys case does not extensively deal with the two concepts, viz. The injury cannot be said to have been caused by an accident which arose out of employment. It is true that the decision in Ganapathys case does not extensively deal with the two concepts, viz. “arising out of employment” and “in the course of employment”, but having considered the legal position at length, we are not satisfied that there is Any infirmity in that decision when it construed the clause which is Also involved in the present case. We do not, therefore, see any reason to differ from the view taken by the Division Bench in Ganapathys case. Consequently, we also do not see any infirmity in the impugned order of the Labour Court. 22. The result is that the petition must fail and is dismissed. Rule discharged. Petition dismissed. ------