ORDER : This writ petition raises a very interesting question. A construction worker is attacked by some strangers in a construction site. The worker succumbs to the injury. A claim petition is filed before the Commissioner for Workmen’s compensation, under the provisions of The Employees’ Compensation Act, 1923 (hereinafter referred to as ‘the Act’ for short). The question that begs consideration is whether such an incident could be termed as ‘accident’ and brought under the purview of the Act, and whether the landlord could be held liable to pay compensation for the death of the worker? 2. A brief narration of the incident would be necessary, before delving into the question raised for consideration. On 01.09.2010, around 1.15 p.m., Shivalingaiah, who was working and taking shelter in the construction site, finished his work and left the workplace along with his colleague Hanumanthu. At that point of time, two strangers, later identified as Suresha and Nagaraja, sought to extract money from Shivalingaiah. When Shivalingaiah resisted, the strangers attacked him with cement hollow blocks and Shivalingaiah sustained multiple injuries over his body. He later succumbed to the injury. 3. The wife and children of Shivalingaiah i.e, the respondents herein filed a claim petition under the provisions of the Act, seeking Rs.20,00,000/as compensation from the landlord of the construction site, who is the petitioner herein. It was contended before the Tribunal that Shivalingaiah was working for about four months prior to the incident as coolie and was paid Rs.500/per day. After narrating the incident, it was contended that the death of Shivalingaiah was caused during the course of employment and therefore the landlord is liable to pay the compensation. In the written statement, the petitioner herein strongly resisted the claim petition and contended that at any rate, the death of Shivalingaiah cannot be termed as death, caused during the course of employment. The Tribunal having raised an issue whether the claimants established that the death occurred due to accident arising out of and in the course of employment and whether the employer is liable to pay compensation under the Act, simply answers the questions in the affirmative, without assigning any reasons. The claim petition was allowed and compensation of Rs.7,13,960/along with interest at the rate of 12% p.a from 01.10.2010, till date of payment, was awarded to the claimants and the petitioner herein was directed to pay the compensation. 4. The claim petition was allowed and compensation of Rs.7,13,960/along with interest at the rate of 12% p.a from 01.10.2010, till date of payment, was awarded to the claimants and the petitioner herein was directed to pay the compensation. 4. Learned counsel for the petitioner submits that Section 3 of the Act provides that an employer is liable to pay compensation if personal injury is caused to an employee, by accident, arising out of and in the course of his employment. It is submitted that though the claim petition was resisted on the ground that Shivalingaiah was attacked by some strangers, unconnected with the landlord and it cannot be construed as an ‘accident’ arising out of and in the course of his employment, the Tribunal clearly erred in allowing the claim petition, even without assigning reasons for holding that the death of Shivalingaiah was an accident arising out of the course of employment. 5. In this regard, learned counsel places reliance on a judgment of Hon’ble Supreme Court in the case of Mackinnon Machenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, reported in 1969 (2) SCC 607 . Further, the learned counsel submits that the Tribunal has not considered the fact that the evidence on record would substantiate that the incident has occurred not because of anything connected to the workplace or anything to do with the employer. In this regard, on factual aspects, it was pointed out that the two strangers attacked Shivalingaiah alone. They did not attack the watchman who was present at the workplace; no theft has taken place; the attackers are not coworkers; the attackers may have had personal reason to attack Shivalingaiah. All these aspects would cumulatively evidence the fact that the incident, though took place in the construction site, but it had nothing to do with the place of employment. It is only coincidental that the attack took place in the construction site. Moreover, the incident cannot be interpreted as ‘accident’ as provided in Section 3 of the Act. 6. Per contra, learned counsel for the respondents would seek to justify the decision of the Tribunal. The learned counsel places reliance on a judgment of the Delhi High Court in the case of Delhi Tourism and Transportation Development Corporation Vs. Moreover, the incident cannot be interpreted as ‘accident’ as provided in Section 3 of the Act. 6. Per contra, learned counsel for the respondents would seek to justify the decision of the Tribunal. The learned counsel places reliance on a judgment of the Delhi High Court in the case of Delhi Tourism and Transportation Development Corporation Vs. Suraj Mukhi and another, reported in (2018) 3 LLJ 588 to contend that even after the workman had left the workplace and a customer who had taken offence to the fact that liquor of his choice was not served by the workman, later attacked the workman while returning home, the said incident was held to be an incident or accident caused during the course of employment. In the case of Oriental Insurance Company Limited Vs. Murthaiah, reported in 2019 (2) KCCR 985 , it was pointed out that the expression ‘out of employment’ applies to employment as such, to its nature, its conditions, its obligations, and its incidents. The words ‘arising out of employment’ are understood to mean that during the course of employment the injury has resulted from risk incidental to the duties. Unless, engaged in duty owed to the employer, it is reasonable to believe that the workman would not otherwise have suffered. By placing reliance on another decision in the case of Chiman Surakhia Vasava Vs. Ahmed Musa Ustad and others, reported in LLJ 1993 3 431, it was submitted that once it is proved that there existed relationship of employer and employee and the accident took place in the workplace, the provisions of the Act are attracted. 7. The learned counsel further relies upon a decision of the Delhi High Court in the case of Madan Vs. Anmol Financial Services Ltd., reported in 2018 (4) LLJ 502 , to contend that under Article 226 of the Constitution, the jurisdiction of this Court can be invoked for correcting errors of jurisdiction committed by inferior Courts or Tribunals, while the findings of fact reached by inferior Courts or Tribunals as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. 8. The learned counsel for the respondents, at this juncture has raised another issue that the petitioner, before filing this writ petition, filed MFA No.4598/2015, invoking Section 30 of the Act, and while the said appeal was pending, he has filed this petition. 8. The learned counsel for the respondents, at this juncture has raised another issue that the petitioner, before filing this writ petition, filed MFA No.4598/2015, invoking Section 30 of the Act, and while the said appeal was pending, he has filed this petition. It is therefore submitted that the petitioner could not have taken recourse to two proceedings simultaneously and therefore, the petition should be dismissed only on that ground. The learned counsel for the petitioner, however, draws the attention of this Court to paragraph 10 of the writ petition to justify that the petitioner has not concealed the fact that he had filed MFA No. 4598/2015. However, it is submitted by the learned counsel for the petitioner that the MFA was filed on 18.07.2015, but having realised that the petitioner was required to challenge the jurisdiction of the Tribunal in entertaining the claim petition, by way of abundant caution, preferred this writ petition. The learned counsel further submits that this writ petition was filed on 31.07.2015, immediately after the MFA was filed. It is also pointed out that by order dated 14.09.2015, this Court stayed the operation and execution of the impugned order passed by the Tribunal. Moreover, the MFA was dismissed for non-prosecution on 15.02.2017. 9. Heard the learned counsels and perused the writ papers. 10. Before answering the main issue, since the question of maintainability of writ petition, in the light of an MFA filed by the petitioner was raised by the learned counsel for the respondents, the preliminary question is required to be gone into. 11. In this regard, the learned counsel for the petitioner has placed reliance on two judgments of the Hon’ble Supreme Court. In the case of Shivashankar Prasad Shah and others Vs. Baikunth Nath Singh and others, reported in AIR 1969 SC 971 , it has been held that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the Court. Only a decision by a Court could be resjudicata, whether it be statutory under Section 11 of CPC or constructive as a matter of public policy on which the entire doctrine rests. Before an earlier decision can be considered as resjudicata, the same must have been heard and finally decided. Only a decision by a Court could be resjudicata, whether it be statutory under Section 11 of CPC or constructive as a matter of public policy on which the entire doctrine rests. Before an earlier decision can be considered as resjudicata, the same must have been heard and finally decided. On this ground, an objection raised for the second time regarding executability of the decree pleaded by the Judgment Debtor that it was barred by the principles of resjudicata, was rejected by the Hon’ble Supreme Court. Similarly, in Sheodan Singh Vs. Daryao Kunwar (Smt.), reported in AIR 1966 SC 1332 , the Constitutional Bench held as follows: “14. …... Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff’s appearance, or on the ground of non-joinder of parties or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was under valued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be resjudicata in a subsequent suit.” 12. As noticed earlier, MFA No.4598/2015, filed by the petitioner herein was dismissed for non-prosecution on 15.02.2017. There was no decision on merits. Therefore, the contention of the learned Counsel for respondents that this writ petition is not maintainable on the ground that a former proceedings questioning the very same judgment and award passed by the Tribunal having been raised in an earlier proceedings and dismissed, the same cannot be urged once again as it is hit by the principles of resjudicata, cannot be countenanced. As noted above, though the petitioner preferred an MFA under Section 30 of the Act, the same was not considered on merits, while it was dismissed for nonprosecution. The issue, though raised, was not answered on merits. As noted above, though the petitioner preferred an MFA under Section 30 of the Act, the same was not considered on merits, while it was dismissed for nonprosecution. The issue, though raised, was not answered on merits. Therefore, the respondents plea that this petition is barred by resjudicata, is considered and rejected. 13. The other question that was raised by the learned counsel for the respondents is whether this Court could exercise powers under Article 226 of the Constitution to interfere with finding of facts? As rightly contended by the learned counsel for the petitioner, though the petitioner filed MFA No.4598/2015, he realised that in challenging the jurisdiction of the Tribunal in entertaining the claim petition, he should have filed a writ petition under Article 226, therefore, by way of abundant caution, though the MFA was filed, this petition was later filed, immediately thereafter, while bringing to the notice of this Court that the petitioner had filed an MFA. The learned counsel for the petitioner has rightly relied upon a decision in the case of T. C. Basappa Vs. T Nagappa and others, reported in AIR 1954 SC 440 , where it was held that an error in the decision or determination itself may also be amenable to a writ of certiorari but, it must be a manifest error apparent on the face of the proceedings, eg., when it is based on clear ignorance or disregard to the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. In granting a writ of certiorari the superior Court does not exercise the power of an appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior Tribunal. In fact, the decision in Krishna Lime Works Vs. Presiding Officer/Workmens Compensation, reported in LLJ 1990 1 302, relied upon by the learned counsel for the respondents follows the same proposition that the object of the writ proceedings is to determine question of jurisdiction of inferior Tribunal and to examine whether they conform to the essential form of laws in the administration of justice. Presiding Officer/Workmens Compensation, reported in LLJ 1990 1 302, relied upon by the learned counsel for the respondents follows the same proposition that the object of the writ proceedings is to determine question of jurisdiction of inferior Tribunal and to examine whether they conform to the essential form of laws in the administration of justice. Certiorari lies to correct errors of jurisdiction as and when the inferior Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it. Therefore, this Court holds that the instant writ petition, having raised a question of jurisdiction of the Tribunal in entertaining the claim petition, this petition seeking issuance of a writ of certiorari requires to be entertained and examined. 14. This Court now comes to the merits of the case. In Mackinnon Machenzie and Co. (P) Ltd. (supra) the Hon’ble Supreme Court has held that to come into the Act, the injury by accident must arise both out of and in the course of employment. The words ‘in the course of employment’ means ‘in the course of the work which the workman is employed to do and which is incidental to it.’ The injury must have 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 that workman would not otherwise have suffered. Their Lordships have taken support of a decision in Lancashire and Yorkshire Railway Co. Vs. Highley, reported in 1917 AC 352, to lay down a test for determining whether an accident arose out of the employment. The test is, “was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? If yes, the accident arose out of his employment. If nay, it did not, because, what was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment.” 15. While applying the test prescribed above, there can be no hesitation in holding that it was not part of the deceased person’s employment to hazard or to suffer the attack. Primarily, the attack cannot be termed as an ‘accident’. The attack itself had nothing to do with the workplace or the employer. While applying the test prescribed above, there can be no hesitation in holding that it was not part of the deceased person’s employment to hazard or to suffer the attack. Primarily, the attack cannot be termed as an ‘accident’. The attack itself had nothing to do with the workplace or the employer. A personal animosity or ill will or anything to do with the deceased and the attackers may have been the cause. By any stretch of imagination, the incident cannot be termed as an ‘accident during the course of employment’. 16. In the case of Suraj Mukhi and another (supra) relied upon by the learned counsel for the respondents, a customer, not being happy with the service of the salesman, attacked him outside the liquor vend shop. The risk arose in the liquor vend shop, which was incidental to the employment. Therefore, a clear distinction can be drawn from the facts of that case to the one on hand. 17. In the light of the above, this Court is of the considered opinion that the incident which occurred on 01.09.2010, where Shivalingaiah was attacked, cannot be termed as an ‘accident’ within the meaning attributed in Section 3 of the Act, and further, the incident did not occur in the course of employment and therefore, the Tribunal had no jurisdiction to entertain the claim petition. Consequently, the judgment and award passed by the Tribunal is quashed and set aside. The writ petition is accordingly allowed.