Karnataka High Court
P.P Upadhya vs The State Of Karnataka on 24 July, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.2166 OF 2014
C/W
CRIMINAL PETITION NO.2168 OF 2014
CRIMINAL PETITION NO.2169 OF 2014
CRIMINAL PETITION NO.2170 OF 2014
CRIMINAL PETITION NO.2238 OF 2014
CRIMINAL PETITION NO.2261 OF 2014
CRIMINAL PETITION NO.2262 OF 2014
CRIMINAL PETITION NO.2264 OF 2014
CRIMINAL PETITION NO.2265 OF 2014
CRIMINAL PETITION NO.2421 OF 2014
IN CRIMINAL PETITION NO.2166 OF 2014
BETWEEN:
1. P.P UPADHYA
S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA
AGED 59 YEARS
DIRECTOR (TECHNICAL) OCCUPIER
PRESENTLY MANAGING DIRECTOR
M/S.MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K.
2. SRI H.P.PAI S/O H.R.PAI
AGE 57 YEARS
G.G.M (H.R), FACTORY MANAGER
M/S. MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
2
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
BY SRI K G NANJAPPA
DEPUTY DIRECTOR OF FACTORIES
DIVISION-I, MANGALORE-575 006, D.K. ... RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN THE C.C.NO.599/13 ON THE FILE OF
THE JMFC-II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2168 OF 2014
BETWEEN:
1. P.P UPADHYA
S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA
AGED ABOUT 59 YEARS
DIRECTOR (TECHNICAL)
OCCUPIER, PRESENTLY MANAGING DIRECTOR
M/S.MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K.
2. SRI KONDURI LAXMINARAYAN
S/O LATE K B PRASADA RAO
AGED ABOUT 53 YEARS
G G M (H.R.), FACTORY MANAGER
3
M/S. MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
DEPUTY DIRECTOR OF FACTORIES
DIVISION-I, MANGALORE-575003
SRI VENKATESH COMPLEX
KOTTARA, MANGALORE-560003. ... RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN C.C.NO.1693/12 ON THE FILE OF
THE JMFC -II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2169 OF 2014
BETWEEN:
1. P.P UPADHYA
S/O LATE PRAMPALLI YAJNANARAYANA
UPADHYA, AGE 59 YEARS
DIRECTOR (TECHNICAL) OCCUPIER
PRESENTLY MANAGING DIRECTOR
M/S.MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K.
4
2. SRI. KONDURI LAXMINARAYAN
S/O LATE K.B. PRASADA RAO
AGE 53 YEARS,
3. G.G.M.(H.R.) FACTORY MANAGER
M/S. MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
BY M N JAKKANNAVAR
DEPUTY DIRECTOR OF FACTORIES
DIVISION-I, MANGALORE
DEPARTMENT OF FACTORIES BOILERS
INDUSTRIAL SAFETY AND HEALTH
I FLOOR, VENKATESH COMPLEX, KOTTARA
MANGALORE-560 003 ... RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN C.C.NO.4475/2011 ON THE FILE OF
THE JMFC -II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2170 OF 2014
BETWEEN:
1. P.P UPADHYA
S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA
AGE 59 YEARS
DIRECTOR (TECHNICAL) OCCUPIER
5
PRESENTLY MANAGING DIRECTOR
M/S.MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K.
2. SRI KONDURI LAXMINARAYAN
S/O LATE K.B.PRASADA RAO
AGED 53 YEARS
G.G.M (H.R), FACTORY MANAGER
M/S MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
DEPUTY DIRECTOR OF FACTORIES
DIVISION-1, MANGALORE-575030. .. RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN C.C.NO.1519/12 ON THE FILE OF
THE JMFC -II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2238 OF 2014
BETWEEN:
1. P P UPADHYA
S/O. LATE PRAMPALLI YAJNANARAYANA UPADHYA
AGE 59 YEARS
DIRECTOR (TECHNICAL) OCCUPIER
6
PRESENTLY MANAGING DIRECTOR
M/S. MANGALORE REFINERY AND
PETROCHEMCIALS LTD.,
KUTHETHOOR VIA, KATIPALLA
MANGALORE-575 030, D.K.
2. SRI H.P. PAI S/O. H.R. PAI
AGE 57 YEARS
FACTORY MANAGER
M/S. MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
KUTHETHOOR VIA KATIPALLA,
MANGALORE-575 030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
DEPUTY DIRECTOR OF FACTORIES
DIVISION-I, MANGALORE
DEPARTMENT OF FACTORIES BOILERS
MANGALORE-560 003, D.K. ... RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN THE C.C.NO.1378/2013 ON THE FILE
OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2261 OF 2014
BETWEEN:
1. P.P.UPADHYA
S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA
AGED 59 YEARS
7
DIRECTOR (TECHNICAL) OCCUPIER
AT PRESENT
M/S.MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K.
2. SRI KONDURI LAXMINARAYAN
S/O LATE K.B.PRASADA RAO
AGED 53 YEARS
G.G.M (H.R), FACTORY MANAGER
M/S MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K. .. PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
BY M.N.JAKKANNAVAR
DEPUTY DIRECTOR OF FACTORIES
DIVISION-1
MANGALORE-560006, D.K. .. RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN THE C.C.NO.428/2012 ON THE FILE
OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2262 OF 2014
BETWEEN:
1. SRI.V.G.JOSHI
8
S/O GOPAL APPAN BHAT
AGE 59 YEARS
OCCUPIER
DIRECTOR (TECHNICAL) OCCUPIER
M/S.MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K.
2. SRI.H.P. PAI S/O LATE H.R.PAI
AGED 57 YEARS
FACTORY MANAGER
M/S. MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
BY SRI. K.G. NANJAPPA
DEPUTY DIRECTOR OF FACTORIES
DIVISION-1, MANGALORE-560 006. ... RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN THE C.C.NO.3243/2013 ON THE FILE
OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2264 OF 2014
BETWEEN:
1. P.P.UPADHYA
9
S/O LATE PARAMPALLI YAJNANARAYANA UPADHYA
AGED ABOUT 59 YEARS
DIRECTOR (TECHNICAL) OCCUPIER
AT PRESENT M/S. MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K.
2. SRI.H.P.PAI S/O H.R.PAI
AGED ABOUT 57 YEARS
G.G.M(H.R.), FACTORY MANAGER
M/S. MANGALORE REFINERY AND
PETROCHEMICAL LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575 030, D.K. .. PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
BY K.G.NANJAPPA
DEPUTY DIRECTOR OF FACTORIES
DIVISION-I
MANGALORE-560 006, D.K. .. RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN THE C.C.NO.2814/12 ON THE FILE
OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2265 OF 2014
BETWEEN:
1. SRI.V.G.JOSHI
10
S/O GOPAL APPAN BHAT
AGED 59 YEARS
OCCUPIER, DIRECTOR (TECHNICAL) OCCUPIER
M/S.MANGALORE REFINERY AND
PETROCHEMICLS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K.
2. SRI H P PAI
S/O LATE H R PAI
AGED 57 YEARS
FACTORY MANAGER
M/S.MANGALORE REFINERY AND
PETROCHEMICLS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE-575030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
BY SRI K G NANJAPPA
DEPUTY DIRECTOR OF FACTORIES
DIVISION-I
MANGALORE-560006, D.K. ... RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN THE C.C.NO.3692/2013 ON THE FILE
OF THE JMFC-II COURT, MANGALORE DISTRICT.
11
IN CRIMINAL PETITION NO.2421 OF 2014
BETWEEN:
1. P P UPADHYA
S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA
AGE 59 YEARS, DIRECTOR (TECHNICAL) OCCUPIER
PRESENTLY MANAGING DIRECTOR
M/S. MANGALORE REFINERY AND
PETROCHEMICALS LTD.,
KUTHETHOOR VIA KATIPALLA
MANGALORE -575030, D.K.
2. SRI H.P.PAI
S/O LATE H.R.PAI
AGED ABOUT 57 YEARS
G.G.M (H.R), FACTORY MANAGER
M/S. MANGALORE REFINERY AND
PETROCHEMICALS LTD., KUTHETHOOR
VIA KATIPALLA,
MANGALORE-575030, D.K. ... PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR
SRI.S.B.PAVIN, ADV.)
AND:
THE STATE OF KARNATAKA
BY SRI M.N JAKKANNAVAR
DEPUTY DIRECTOR OF FACTORIES
DIVISION-I, MANGALORE -560006, D.K. .. RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.P FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONERS IN C.C.NO.429/2012 ON THE FILE OF
J.M.F.C. (II COURT), MANGALORE DIST.
THESE PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
12
ORDER
Since common questions of law and facts are involved in these petitions, they are heard and disposed of by this common order.
2. M/s.Mangalore Refinery & Petro Chemicals (MRPL) is the petitioner in all these petitions. It undertook expansion of the Refinery in Phase III project and the work of construction of the factory building was entrusted to M/s.Gannon Dunkerley & Company Ltd. The construction workers engaged by the Contractor namely, M/s. Gannon Dunkerley Ganon met with accidents at the site on different dates and sustained grievous injuries and casualties. The details of the accidents are given herein below :-
Sl Case No. Allegation Contraventions/Offences No 1 Crl.P No.2166/ 2014 The alleged accident has occurred in unit Sec 32(b) & (c). Sec 7A(2)(c) & In CC No.599/2013 under construction at Phase 3 site (d) of the Factories Act.
A1- PP Upadyaya wherein a construction worker fell from Offence punishable under A2- HP Pai Level +113 while returning from welding section 92 of the Factories Act.
job after removing the hook/bracket of the safety belt which resulted in the death of the worker 2 Crl.P No.2168/2014 The alleged accident occurred wherein the Sec.36(1)(2)(a) & (b) In CC No.1693/2012 driver and cleaner of a tanker truck Sec.7A(2)(c) of the Factories 13 A1-PP Upadyaya bearing number TN-41-AA-7535 parked Act. Offence punishable under A2-Konduri inside the Factory Premises for filling Section 92 of the Factories Act. Laxminarayan BITUMEN, fell inside the tanker when the lid of tanker was open 3 Crl.P.No.2169/2014 The alleged accident has occurred at the Sec.29(1) (a)(i), In CC No. construction site at Phase 3 site when a Sec 29(1)(a)(ii) & Rule 130(3) 4475/2011 contract worker of M/s Punjlloyd was of the Factories Act and Rules.
sevearly injured due to the Offence punishable under A1-PP Upadyaya malfunctioning of a crane operated by a Section 92 of the Factories Act.
A2-Konduri sub contractor at Phase 3.
Laxminarayan
4 Crl.P.No.2170/2014 The alleged accident has occurred in Sec.32(b) & (c), Sec 7A(2)(c) &
In CC No. PFCCU Unit in Phase 3 of the Factory (d) and Rule 130(1), 130(3) of
1519/2012 wherein a construction worker while the Factories Act and Rules.
returning from a welding job fell from a Offence punishable under
A1-PP Upadyaya scaffolding platform at 60.7 meters and Section 92 of the Factories Act.
A2-Konduri succumbed to his injuries
Laxminarayan
5 Crl.P.No.2238/2014 The alleged accident has occurred at Sec 32(b) & (c) & Sec. 7A(2)(c)
In CC No.1378/2013 Phase 3 site where the contract welder & (d), and Rule 80, 130(3) of
A1-PP Upadyaya employed by M/s Powermech Projects the Factories Act and Rules.
A2-HP Pai Ltd. Who was doing TAC Welding at Offence punishable under
Level+12600 fell from 12.6 Meters and section 92 of the Factories Act.
succumbed to his injuries
6 Crl.P.No.2261/2014 Accident occurred while uploading Sec.7A(2)(b) & Rule 83, 130(1)
In CC No.428/2012 reinforced steel from a lorry causing the & 130(3) of the Factories Act
death of the site engineer employed by and Rules.
A1-PP Upadyaya M/s Nityananda Infrastructure Pvt. Ltd.
A2-Konduri for the construction of Phase 3. Offence punishable under
Laxminarayan section 92 of the Factories Act.
7 Crl.P.No.2262/2014 The alleged accident has occurred at a Sec.7A(2)(b) & Rule 84 of the
In CC No.3243/2013 unit under pre-commissioning at Phase 3 Factories Act and Rules.
of the Factory resulting in burn injuries
A1-VG Joshi Offence punishable under
A2-HP Pai section 92 of the Factories Act.
8 Crl.P.No.2264/2014 Accident occurred inside utility boiler 2 of Sec 32(b) & (c) Sec. 7A(2)(c)
In CC No.2814/2012 Phase 3 which was under erection stage & (d), and Rule 84, 130(1) &
resulting in death of one of the 130(3) of the Factories Act and
A1-PP Upadyaya construction workers Rules.
A2-HP Pai Offence punishable under
section 92 of the Factories Act.
9 Crl.P.No.2265/2014 The alleged accident has occurred inside Sec.7A(2)(b) & Rule 84 of the
In CC No.3692/2013 utility boiler 1 in captive power plant at Factories Act and Rules.
Phase 3 which was under erection stage
A1-VG Joshi when the contract workers of different Offence punishable under
A2-HP Pai independent contractors who were section 92 of the Factories Act.
engaged in providing scaffolding and
insulation for boiler feed water line
wherein the welded cut end of the
temporary steam line gave away resulting
in steam of 250 degree Celsius, causing
14
injuries to the workers out of whom one
Babu Singh died
10 Crl.P.No.2421/2014 The alleged accident has occurred in Phase 3 of Section 37(1) and Rules 130(1) &
In CC No.429/2012 the project where the construction was going 130(3) of the Factories Act and
on and MRPL had given a turnkey project Rules.
A1-PP Upadyaya contract to Engineers India Pvt. Ltd. Wherein
A2-Konduri Zinc Phosphate work was undertaken and at Offence punishable under Section
Laxminarayan the same time gasketing work was also going 92 of the Factories Act.
on in the same area, resulting in the paint
catching fire which injured workers of which 4 workers succumbed to their injuries.
The Deputy Director of Factories Division-1 Mangalore filed different complaints before the II Additional JMFC I Class, Mangalore seeking prosecution of the petitioners under Sections 32(b)&(c),7A(2)(c)&(d)[Crl.P.2166/14]; 36(1)(2)(a) & (b), 7A(2)(c) [Crl.P.2168/14]; 29(1)(a)(i),29(1)(a)(ii) & Rule 130(3) [Crl.P.2169/14); 32(b)&(c),7A(2)(c)&(d) & Rule 130(1), 130(3) [Crl.P.2170/14]; 32(b)&(c) 7A(2)(c)&(d) & Rule 80, 130(3) [Crl.P.2238/14); 7A(2)(b) & Rule 83, 130(1) & 130(3)[Crl.P.2261/14]; 7A(2)(c) & Rule 84 [Crl.P.2262/14]; 32(b)&(c) 7A(2)(c)&(d) & Rule 84, 130(1)&130(3)[Crl.P.2264/14]; 7A(2)(b) & Rule 84 [Crl.P.2265/14); 37(1) & Rule130(1) &130(3)[Crl.P.2421/14] of the Karnataka Factories Act 1948 and Karnataka Factories Rules, 1969. In all the petitions, it was alleged that the mandatory safety measures were not provided at the construction site which resulted in fatal accidents and thus the Company and its Chairman and the Factory Manager were sought to be prosecuted for the above violations.
15
3. Learned Senior Counsel appearing for petitioners placing reliance on the decision of the Hon'ble Supreme Court in Lanco Anpara Power Limited v. State of Uttar Pradesh and Others reported in (2016) 10 SCC 329 would contend that the establishment of the petitioners does not fall within the ambit of Factories Act, 1948 and the Rules framed thereunder. Victims who suffered injuries at the construction site were employed by the Contractor- M/s.Gannon Dunkerley & Company Ltd. None of these victims answer the definition of 'worker' as defined under the Factories Act. None of the alleged accidents had taken place at the site where manufacturing process or manufacturing activities or any other activities connected or incidental thereto were being carried on at the relevant time. Under the said circumstance, the proposed prosecution of the petitioners under the provisions of the Factories Act and the Rules is wholly illegal and cannot be sustained under law. Referring to the above decision, the learned counsel highlighted that the petitioners herein are sought to be prosecuted solely on the basis that the petitioners herein obtained a licence for construction drawings as mandated under Section 6 of the Factories Act. Dealing with the 16 said provision, the Hon'ble Supreme court in the above decision has held that mere obtaining a licence under Section 6 of the Factories Act for registration of factory, would not make the establishment a 'factory' within the meaning of Factories Act. With these contentions the learned Senior Counsel sought to quash the action initiated against the petitioners in the above proceedings.
4. Learned Addl. SPP however, has staunchly defended the impugned proceedings contending that the petitioners themselves submitted to the jurisdiction of the Factories Act by obtaining licence under the provisions of the Act. The documents submitted by the petitioners before the Director of Factories and Boilers would clearly indicate that petitioners were involved in construction of a building to enable the refinery complex which is a "manufacturing process" within the meaning of Section 2(1) (c) of the Factories Act. As per Section 2(l) of the Act, a worker whether employed directly or through a contractor in any manufacturing process or cleaning any part of the machinery or premises used for the manufacturing process is covered under 17 the provisions of the said Act. In the instant case, accidents having taken place while the victims were engaged in construction of a building meant for expansion of manufacturing process, respondent was justified in initiating proceedings under the provisions of the Factories Act and thus sought to dismiss the petitions.
5. I have bestowed my careful thought to the rival submissions made at the Bar and carefully scrutinized the material on record as well as the decision relied upon by the learned Senior Counsel for the petitioner.
6. The basic facts are not in dispute. The alleged accidents had taken place while the victims were involved in the construction of Phase III project. All the victims were the contract labourers engaged by the respective contractors. It is not the case of the complainant/respondent that any manufacturing activity was being carried on at the locations where the alleged accidents had taken place. On the other hand, the very document relied on by the complainant reveals that approval was sought by the petitioners for expansion of the 18 project. In the said communication dated 8.5.2008 the petitioner-company has specifically stated that MRPL, a subsidiary of ONGC has embarked on a Refinery Upgradation and Expansion project (phase-3 Project) adjacent to the existing Refinery Complex with the following objectives :
1) To Eliminate/Reduce Fuel oil Production
2) To upgrade the production facilities to enable the Refinery complex to produce Euro-III and Euro Iv grade distillates
3) To build a new 3 MMTPA crude unit with suitable metalury to process high acid crudes. By this the Refinery Complex processing capacity will be enhanced to 15 MMTPA.
4) To produce High Value products Vis Polymer grade Propylene
7. These facts clearly indicate that the alleged construction was intended to be set up near the existing refinery complex and no manufacturing process had commenced or was being carried on at the relevant time. In this regard, the averments made in the respective complaints go to show that at the time of the alleged accidents, the contract workers were attending to the work assigned to them by the respective contractors in the "unit 19 under construction of phase-III site". It is specifically stated in all the complaints that the alleged accidents had taken place at the unit under construction of phase III site. There is nothing in the entire complaint or in the material produced by the respondent as well as the petitioners to show that any manufacturing process was being carried on at the unit under construction. In this back drop if the term 'worker' as defined in Section 2(l) of the Factories Act. 1948 is analysed, it reads as under :-
2(l) "worker" means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing, or the subject of the manufacturing process but does not include any member of the armed forces of the Union".20
What is 'manufacturing process' is defined in Section 2(k) of the Act as under :-
"2(k) "manufacturing process" means any
process for -
(i)making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or
(ii) pumping oil, water, sewage or any other substance, or
(iii) generating, transforming or transmitting power, or
(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding, or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels, or 21
(vi) preserving or storing any article in cold storage"
8. Dealing with identical situation, the Hon'ble Supreme Court in Lanco Anpara referred supra negatived the contentions urged by the complainant therein that since the factories stood registered under the Factories Act, they were not covered under the provisions of Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996 (hereinafter referred to as 'the BOCW Act').
In Paragraph 36 of the above decision it is held as under :-
"We may mention at this stage that the High Court is right in observing that merely because the appellants have obtained a licence under Section 6 of the Factories Act for registration to work a factory, it would not follow therefrom that they answer the description of the "factory" within the meaning of the Factories Act. We have reproduced the definition of "factory" and a bare reading thereof makes it abundantly clear that before this stage, when construction of the project is completed and the manufacturing process starts, "factory" within the 22 meaning of Section 2(m) of the Factories Act does not come into existence so as to be covered by the said Act."
10. Further, an analysis of the definition 'worker' as defined in Section 2(l) of the Factories Act would also make it clear that only when a worker is engaged in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with the manufacturing process, or the subject of the manufacturing process, he would fall within the definition of 'worker' as defined in Section 2(l) of the Factories Act.
11. In the instant case, as already stated above, respondent-complainant has invoked the provisions of the Factories Act solely on the premise that approval has been accorded to the petitioner under Section 6 of the Factories Act and therefore, every person engaged by the Contractor answers the description of "worker" within the meaning of Factories Act. This plea is misconceived and is contrary to the provisions of the 23 Act. The facts and circumstances of the case clearly point out that accidents had taken place at the respective units under construction where no manufacturing process or manufacturing activity was being carried on. In that view of the matter, prosecution launched against the petitioners under the provisions of the Factories Act is legally not tenable and cannot be sustained.
13. The facts and circumstances discussed above clearly indicate that the victims are covered under the provisions of the Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996. For all these reasons, the proceedings initiated against the petitioners being illegal and abuse of process of court are liable to be quashed.
Accordingly, the petitions are allowed. The proceedings initiated against the petitioners in C.C.Nos.599/2013, 1693/2012, 4475/2011, 1519/2012, 1378/2013, 428/2012, 3243/2013, 2814/2012, 3692/2013, 429/2012 pending on the file of JMFC (II Court) Mangalore, D.K. are quashed. Liberty is reserved to the respondents to proceed against the concerned 24 under any other provisions of law including Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996. It is made clear that this order shall not come in the way of the respondent from taking recourse to any other remedies available under law for appropriate reliefs.
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JUDGE rs