Chattisgarh High Court
V.D. Paranjape vs State Of Chhattisgarh And Ors on 24 February, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPL No. 4325 of 2011
V.D. Paranjape s/o. D.G. Paranjpe, aged about 56 years,
General manager, NTPC-SAIL Power Company Private
Limited, Bhilai, District Durg (CG).
---- Petitioner
Versus
1. State Of Chhattisgarh through the Secretary, Department
of Labour DKS Bhawan, M,antralaya, Raipur CG.
2. Factory Inspector and Deputy Director, Industrial Health &
Safety, Durg, District Durg (CG).
3. Presiding Officer, Labour Court, Durg (CG).
---- Respondents
with WPL No. 4327 of 2011 V.D. Paranjape s/o. D.G. Paranjpe, aged about 56 years, General manager, NTPC-SAIL Power Company Private Limited, Bhilai, District Durg (CG)
---- Petitioner Versus
1. State Of Chhattisgarh through the Secretary, Department of Labour DKS Bhawan, Mantralaya, Raipur CG.
2. Factory Inspector and Deputy Director, Industrial Health & Safety, Durg, District Durg (CG).
3. Presiding Officer, Labour Court, Durg (CG).
------- Respondents For petitioner. : Mr. B.D. Guru, Advocate.
For State : Mrs. Usha Chandrakar, Panel Lawyer (Hon'ble Mr. Justice Narendra Kumar Vyas) Order on Board 24-02-2022
1. Since a common question of law and facts are involved in both the Writ Petitions (L), they are heard analogously and are being disposed of by this common order.
22. The petitioner has filed both the writ petitions under Article 226 of the Constitution of India with a prayer to quash the prosecution as well as Complaint Case No. 866 (Category IV)/2007/Factory Act (Cri) (Factory Inspector vs. R.C. Shrivastava and another) (Annexure P/1) filed by the respondent No.2/Factory Inspector and Deputy Director, Industrial Health and Safety, Durg in WPL No.4325 of 2011 to quash the prosecution as well as Complaint Case No. 887 (Category IV)/2008/Factory Act (Cri) (Factory Inspector vs. V.D. Paranjape) (Annexure P/1) filed by the respondent No.2/Factory Inspector and Deputy Director, Industrial Health and Safety, Durg.
3. Brief facts as reflected from the writ petitions are that the petitioner is a General Manager, NTPC - SAIL Power Company Private Limited, Bhilai, District Durg (CG) which is a joint venture of NTPC Limited & SAIL (Steel Authority of India Limited). The alleged incident took place on 20-7- 2007 at the construction site of NSPCL, Bhilai, leading to death of one Montu Sardar, a workman engaged by the contractor namely M/s. Gammon India Limited. A show cause notice was issued by respondent No.2 - Factory Inspector and Deputy Director, Industrial Health and Safety, Government of Chhattisgarh to the petitioner for alleged violation of provisions of Sections 33 (i), 7-A(2)(c) of the Factories Act, 1948 (for short, "the Act, 1948") and in pursuance the aforesaid notice, petitioner has submitted his reply and thereafter a complaint under Section 105 of the Act, 1948 has been filed against the petitioner alleging offence under Section 92 of the Act, 1948. Section 105 of the Factories Act, 1948 reads as under:
"No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an Inspector. (2) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try any offence 3 punishable under this Act. STATE AMENDMENT Maharashtra Amendment of section 105 of 63 of 1948.--In section 105 of the principal Act, in sub-section (1), for the words "an Inspector" the words "the Chief Inspector" shall be substituted.
4. Taking cognizance of the offence, learned Labour Court/Judicial Magistrate First Class, Durg, has registered the complaint as case No. 866 (Category IV)/2007/Factory Act (Cri) and issued summons to the petitioner. The petitioner in pursuance of summons issued by the learned Judicial Magistrate First Class has entered appearance and filed application under Section 205 of the Cr.P.C. for grant of permanent exemption, which was allowed by the learned trial Court. The petitioner has also moved an application on 07.01.2008 for dismissal of the criminal case contending that at the construction stage, provisions of the Act, 1948 is not applicable, as such, the prosecution lodged by the Factory Inspector is without jurisdiction and liable to be quashed by the learned Judicial Magistrate First Class. The learned Judicial Magistrate First Class vide its order dated 22.10.2008 has rejected the said application by recording the finding that contention raised in the application that at the construction stage, provisions of the Act, 1948 is applicable or not, is a matter of evidence on the basis of contention raised in the application, the fact is not clear whether the manufacturing process has already been started or not and thereafter fixed the case for recording of plea of the accused.
5. This order is being challenged by the petitioner before this court by filing the instant writ petitions on the ground that the prosecution under provisions of the Act, 1948 is not tenable in view of Section 2 (d) of the Building and other Construction Workers (Regulation of Employment and Conditions of Service ) Act, 1996 which provides that the provisions of the Act, 1948 is not applicable. He would 4 further submit that when the accident took place on 20.07.2007, the manufacturing has not started, as such, the provisions of the Act, 1948 is not applicable. Learned counsel for the petitioner would further submit that the petitioner has obtained license to run the factory on 22.04.2009, as such, prior to it, it was construction stage and the manufacturing process was not started, therefore, the Act, 1948 is not applicable. He would refer to the judgment rendered by Hon'ble Supreme Court in Lanco Anpara Power Limited vs. State of Uttar Pradesh and others, reported in(2016) 10 SCC 329 wherein Hon'ble the Supreme Court in paras 37 to 39 has in clear term held that construction of the plant is covered under the Act, 1996 and the Act, 1948 is not applicable. Paragraph 37 to 39 are extracted below:-
"37. We now advert to the core issue touching upon the construction of Section 2(d) of the BOCW Act. The argument of the appellants is that language thereof is unambiguous and literal construction is to be accorded to find the legislative intent. To our mind, this submission is of no avail. Section 2(d) of the BOCW Act dealing with the building or construction work is in three parts. In the first part, different activities are mentioned which are to be covered by the said expression, namely, construction, alterations, repairs, maintenance or demolition. Second part of the definition is aimed at those buildings or works in relation to which the aforesaid activities are carried out. The third part of the definition contains exclusion clause by stipulating that it does not include 'any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), applies'. Thus, first part of the definition contains the nature of activity; second part contains the subject matter in relation to which the activity is carried out and third part excludes those building or other construction work to which the provisions of Factories Act or Mines Act apply.5
38. It is not in dispute that construction of the projects of the appellants is covered by the definition of "building or other construction work" as it satisfies first two elements of the definition pointed out above. In order to see whether exclusion clause applies, we need to interpret the words 'but does not include any building or other construction work to which the provisions of the Factories Act ............ apply'. The question is as to whether the provisions of the Factories Act apply to the construction of building/project of the appellants. We are of the firm opinion that they do not apply. The provisions of the Factories Act would "apply" only when the manufacturing process starts for which the building/project is being constructed and not to the activity of construction of the project. That is how the exclusion clause is to be interpreted and that would be the plain meaning of the said clause. This meaning to the exclusion clause ascribed by us is in tune with the approach adopted by this Court in Organo Chemical Industries v. Union of India[11]. Two separate, but concurring, opinions were given by Justice V.R. Krishna Iyer and Justice A.P. Sen, and we reproduce here below some excerpts from both opinions: "Justice A.P. Sen (para
23) Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. A bare mechanical interpretation of the words 'devoid of concept or purpose' will reduce much of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole.
Justice V.R. Krishna Iyer (para 241) A policy- oriented interpretation, when a welfare legislation falls for determination, especially in the context of a developing country, is sanctioned by principle and precedent and is implicit in Article 37 of the Constitution since the judicial branch is, in a sense, part of the State. So it is reasonable to assign to 'damages' a larger, fulfilling meaning."
39. The aforesaid meaning attributed to the exclusion clause of the definition is also in consonance with the objective and purpose which is sought to be achieved by 6 the enactment of BOCW Act and Welfare Cess Act. As pointed out above, if the construction of this provision as suggested by the appellants is accepted, the construction workers who are engaged in the construction of buildings/projects will neither get the benefit of the Factories Act nor of BOCW Act/Welfare Cess Act. That could not have been the intention of the Legislature. BOCW Act and Welfare Cess Act are pieces of social security legislation to provide for certain benefits to the construction workers.
6. In view of the aforesaid law laid by Hon'ble Supreme Court, it is quite vivid that the provisions of the Factories Act, 1948 are not applicable at the time of construction of the factory, but whether the petitioner company has started manufacturing process or not on the date of incident, is a matter of evidence, which can be appreciated by the learned Judicial Magistrate First Class only after recording of evidence of prosecution and petitioner. As the respondent in the complaint filed before Judicial Magistrate First Class has caterogrically stated that the premises is governed by the provisions of the Act, 1948 and it is a factory as defined in Section 2(m) of the Act, 1948. The relevant paragraph of the complaint is reproduced below:-
"1. कारखाना अधधिननि की धारा 33(1) का उल्लन िकना कनोिक िदिना्क 20.07.2007 को कारखाने के कूललि टावर न्. 2 के ऊपरी छत िे जहा् सेल न् . 1 िे िनिार्माण का कानर्मा जारी था वहा् सेल न् . 1 से करीब 2 िीटर की दिरू ी पर 660X 1060 विर्मा िीलीिीटर की खुरी जिह (Opening) थी जजसके ऊपर सटररि लिाकर अस्थाई रप से ढका िना था िकनतु इस खुली जिह (Opening) के ऊपर कारखाना अधधिननि की धारा 33(1) के पावधान अनुसार सुरक्षातिक कवर (Securely Covered) अथवा फेननसि की वनवस्था नही िनी थी जजसके कारण शििक शी िनटू सरदिार एव् शी सपन ि्लल जब स्टररि पलेट उठाकर अलि रख रहे थे िक उक खुली जिह से शी िनटू सरदिार नीचे ििर कर ि्भीर रप से दिल ु र्मा टनागस्त हो िना तथा दिल ु र्मा टना िदिना्क को ही चिकतसालन िे उसकी िमतनू हो िनी
2. कारखाना अधधिननि की धारा 7.A(2)(c) का 7 उल्लन िकना कनोिक िदिना्क 20.07.2007 को कुललि टावर न्. 2 की ऊपरी छत िे कानर्मा रत शििको को छत िे खुली जिह िौजूदि होने तथा उसके ऊपर स्टररि पलेट रखे होने की कोई जानकारी नही दिी िनी थी । उक शििको के कानयो के दिेख -रेख के ललने कोई पररवेक्षण की वनवस्था भी नही थी । 17 िीटर ऊ्चाई पर नस्थत फोर िे िनिित खुली जिह जजसके ऊपर स्टररि पलेट रख कर ढका िना था वहा् खतरा होने के स्ब्ध िे कोई सूचना भी पदिरर्शित नही थी । इस पकार िदिना्क 20.07.2007 को खतरे से अ्जान शििक शी िनटू सरदिार एव् शी सपन ि्लल ने जब छत िे खुली जिह के ऊपर रखी हुई स्टररि पलेट को सािानन रप से हटाने का पनास िकना, तब सटररि पलेट के नीचे िौजूदि खुली जिह (Opening) से शििक शी िनटू सरदिार नीचे ििरा जजससे वह ि्भीर रप से लानल हो िना एव् धचिकतसालन िे उपचार के दिौरान उसकी िमतनू हो िना उपरोक उल्लन कारखाना अधधिननि 1948 की धारा 92 के अनुसार दिणलनीन अपराध है ।
साक्ष्नः- उपरोक िमह पररसर कारखाना अधधिननि 1948 की धारा 2M(i) के अनतिर्मा त कारखाना स्ििठत होता है । कारखाने की शििको की हाजरी प्जी जो अधधभोिी एव् कारखाना पब्धक के कब्जे िे है ननानालन के सिक्ष पस्तुत करने के ललने आदिेर्शि िदिना जावे ।"
7. The petitioner has taken a stand that at the time of alleged incident on 20.02.2007, no manufacturing process has been started, and it is a construction stage only, which is his defence. These facts have been disputed by the prosecution in their complaint. This requires appreciation of evidence, material to be considered which cannot be looked into by this Court at the time of quashing of the criminal proceeding under Article 226 of the Constitution of India. Hon'ble the Supreme Court while hearing writ petition under Article 226 of Constitution of India in Kaptan Singh Vs. State of Uttar Pradesh and others 1 has held that the writ court while considering the prayer for quashing of the FIR or charge-sheet cannot looked into the defence to be taken by the accused. Hon'ble the Supreme Court has held as under :-
1 AIR 2021 SC 3931 8 "9.1 At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C.
was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe 9 and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to hereinabove. 9.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.
10 The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarized affidavit of Mamta Gupta - Accused No.2 and Munni Devi under which according to Accused no.2 - Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27.10.2010, the sale consideration is stated to be Rs.25 lakhs and with no reference to payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized affidavit of the same date i.e., 27.10.2010 sale consideration is stated to be Rs.35 lakhs out of which Rs.25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused No.2. Whether Rs.25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said 10 document and payment of Rs.25 lakhs as mentioned in the joint notarized affidavit dated 27.10.2010. It is also required to be considered that the first agreement to sell in which Rs.25 lakhs is stated to be sale consideration and there is reference to the payment of Rs.10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation."
8. The Hon'ble Supreme Court in very recent judgment in Criminal Appeal Nos. 1455-1456/2021 in case of State of Odisha vs. Pratima Mohanti decided on 11th December, 2021 has held as under:-
"9. While quashing the criminal proceedings the High Court has not at all adverted to itself the aforesaid aspects and has embarked upon an enquiry as to the reliability and genuineness of the evidence collected during the investigation as if the High Court was conducting the mini trial. Therefore, as such the impugned judgment and order passed by the High Court quashing the criminal proceedings against the respondents herein original accused Nos. 4, 5 and 3
- Smt. Pratima Mohanty, Shri Prakash Chandra Patra and Shri Rajendra Kumar Samal is unsustainable, both, in law and/or facts and the same deserves to be quashed and set aside.
10. In view of the above and for the reasons stated above present appeals succeed. Impugned common judgment and order passed by the High Court dated 04.09.2019 passed in Criminal Miscellaneous Application No.3177 of 2017 and Criminal Miscellaneous Application No.4804 of 2015 are hereby quashed and set aside in so far as quashing the criminal proceedings against original Accused Nos.4, 5 & 3 is concerned.
Respondent Nos.4, 5 & 3 to face trial along with other co-accused.
Present Appeals are accordingly allowed."
9. In view of the aforesaid legal position, I am of the view that the instant Writ Petitions (L) is disposed of with a direction to the learned Judicial Magistrate First Class to first examine whether the petitioner company falls within the 11 ambit of factory at the time of construction stage or whether the manufacturing process was started when the accident took place on 20.02.2007. Since the prosecution has to lead evidence, they have to first prove the charges leveled against the petitioner by adducing their entire evidence including the evidence that the premises falls within the ambit of the factory on the date of incident or not. Thereafter, the petitioner will lead evidence to substantiate that the provisions of the Act, 1948 are not applicable at the time of construction of the factory on 20-7-2007 by cogent evidence, will take all their defence which is available to them. Learned Judicial Magistrate First Class is directed to decide the case on the basis of evidence, material on record and in accordance with law, without being influenced by any of the observations made by this court while disposing of these petitions.
10. With the aforesaid observation and direction, the instant Writ Petitions (L) are disposed of. Interim relief granted earlier by this court is vacated.
Sd/-
(Narendra Kumar Vyas) JUDGE Raju