G.L. Oza, J.

This appeal has been filed by the appellant against an order passed by Employees' Insurance Court, Indore in E.S.I. Case No. 7/76 dated 20-4-1977.

The respondent No. 1 submitted an application to the E.S.I. Court alleging that he is an employee of the Malwa United Mills, Indore. When he was going to the Mills for performing his duties, he was asked by one Tufansingh and others to strike work but he did not agree to their suggestion and went and joined his duty and when he was returning from his duty at 11 p. m. he was attacked by Tufansingh and others resulting in injury to his hand. He, therefore, prayed for a direction that the appellant E.S.I. Corporation be directed to treat the injury as an employment injury and give him the benefits to which he is entitled to.

This application was contested by E. S. I. Corporation, the present appellant, on the ground that the injury could not be said to be an employment injury as on that day, he was not on duty. After framing of issues, the learned Presiding Officer of the E. S. I. Court came to the conclusion that the injury was an employment injury and, therefore, directed the appellant Corporation to assess the disability caused by the injury and give the benefits to respondent No. 1 in accordance with law. Against this judgment the appellant Corporation has preferred this appeal.

The learned counsel appearing for the appellant raised two contentions:

(1) that the respondent No. 1, on the date of incident, was not on duty and therefore was not an employee; and

(2) that even if the findings arrived at by the Court below are accepted, as the incident occurred at a distance of a little more than a kilometre from the premises of the Indore Malwa United Mills, it could not be said that the injury was an employment injury and, therefore, the view taken by the learned Court below is not justified in law.

The learned counsel for the respondent contended that the finding about the respondent No. 1 being on duty on the date of incident and that he returned after finishing his duties at 11 O'clock in the night are findings of fact arrived at by the Court below on the basis of evidence adduced by the respondent No. 1. The appellant produced no evidence to controvert those facts and the Court below having come to these findings of fact, this being an appeal under section 82 of the Employees' State Insurance Act, the findings could not be interfered with.

As regards the second question, it was contended by the learned counsel that the findings arrived at by the Court below are that when the respondent No. 1 along with others was trying to enter the Mill premises in the after-noon in order to perform his duty as he was instructed by his jobber to do, there was a violent protest by Tufansingh and others who belonged to the rival Union and who had given a call for strike. But in spite oi his protest, the findings arrived at by the Court below are that this respondent No. 1 managed to go inside the Mai premises and performed his duties. At this occasion, the evidence discloses that Tufansingh and others had threatened that they will be seen when they come out and when the respondent No. 1 was returning after discharge of his duties, he was assaulted oy Tufansingh by a sharp edged weapon for nothing except that respondent No. 1, in spite of the strike call, had gone to the Mill premises for discharge of his duties and, therefore, the distance from the Mill premises would not be material but it would appaiently be an injury arising out of his employment as apparently there is no evidence to indicate that Tufansingh attacked respondent No. 1 for any other reason except that he has performed his duties and according to the learned counsel, therefore, the view taken by the learned Court below could not be said to be erroneous in law.

On the first question as to whether on 19-9-1974, the respondent No. 1 went to perform his duties or not, the finding arrived at by the learned Court below is that he