Madras High Court
B.Shyam Prakash Fatehpuri vs The State Of Tamil Nadu Rep. By on 5 September, 2024
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2024:MHC:3380
CRL OP(MD). No.16416 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.09.2024
CORAM
The Hon`ble Mr.Justice D.BHARATHA CHAKRAVARTHY
CRL OP(MD). No.16416 of 2023
and
Crl.M.P.(MD)Nos.13061 & 13063 of 2023
B.Shyam Prakash Fatehpuri ... Petitioner
Vs.
The State of Tamil Nadu rep. by
The Deputy Director,
Industrial Safety and Health III,
Madurai. ... Respondent
PRAYER :- This Petition is filed under Section 482 Cr.P.C, to call for
the records relating to the impugned complaint in S.T.C.No.1625 of 2023
on the file of the Chief Judicial Magistrate, Madurai registered for
offence punishable under Section 96A of the Factories Act, 1948 and
quash the same as illegal.
For Petitioner : Mr.M.Jerin Mathew
For Respondent : Mrs.M.Aasha
Government Advocate (Crl.Side)
1/10
https://www.mhc.tn.gov.in/judis
CRL OP(MD). No.16416 of 2023
ORDER
This Petition is filed to quash the complaint in S.T.C.No.1625 of 2023 on the file of the Chief Judicial Magistrate, Madurai.
2. The complaint is filed by the respondent, namely, the Deputy Director, Industrial Safety and Health-III, Madurai, complaining that the petitioner has committed an offence punishable under Section 96-A of the Factories Act, 1948. The gravamen of the allegation is that the petitioner did not put in place in the manner prescribed all information relating to dangers, including health hazards and measures to overcome such hazards, arising from exposure or handling of the materials or substances in the manufacture and also did not lay down a detailed policy with respect to the health and safety of the workers. The petitioners did not draw “On Site Emergency Plan” and detailed disaster controlled measures for the factory. Feeling aggrieved by the complaint, the present petition is filed.
3. Apart from other grounds, the primary ground raised by the learned counsel for the petitioner is that Section 41(B) of the Factories 2/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.16416 of 2023 Act, 1948 (hereinafter referred to as “Act”) itself is with reference to the factories involving hazardous process. According to the learned counsel for the petitioner, the term 'hazardous process' is defined in the Act under Section 2(cb). As per the same, the hazardous process industries are specified in the 1st Schedule to the Act. The petitioner is an Industry which manufacturers synthetic cord, by twisting the yarn and the petitioner's process is not enlisted in the 1st Schedule to the Factories Act. Merely because the petitioner's industry uses gas cylinders in the process of heating the yarn, it cannot be said to be a hazardous industry inasmuch as neither the raw materials used in the industry nor the intermediate or finished product in the industries are hazardous and there are no by-products, such as, waste or effluents, which are generated. Therefore, the petitioner's industry will not come within the mischief of the definition of hazardous process as contained under Section 2(cb). Once the petitioner's industry is not a factory involving hazardous process, then, there cannot be any complaint as to the violation of Section 41 (B) and therefore, even assuming that the allegations, which are mentioned on face value are true, no offence under Section 97 of the Factories Act, is made out and hence, the complaint should be quashed. 3/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.16416 of 2023
4. Per contra, the learned Government Advocate (Criminal Side) would submit that firstly, under Rule 97 of the Tamil Nadu Factories Rules 1950, more, specifically, under Schedule 31, the Rules relating to highly flammable liquids and flammable compressed gases are framed. The said Rules are clearly applicable for all factories where highly flammable liquids or gases are manufactured, stored, handled or used. The petitioner's factory uses compressed gas and therefore, the said Rules as framed under Schedule 31 are applicable. Once the Rules are applicable, then the petitioner's factory can also be termed as a 'factory' coming within Entry 29 of the 1st Schedule. Entry 29 categorically mentions about highly flammable liquids and gases. Once the petitioner's industry comes within the Entry to the 1st Schedule, which is incorporated as per Section 2(cb), then the petitioner's industry is hazardous and therefore, when the petitioner's industry has not come up with the plan and does not lay down any emergency plan as mandated under Section 41(B), the offence is made out and the complaint cannot be quashed.
4/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.16416 of 2023
5. I have considered the rival submissions made on either side and perused the material records of the case.
6. There is no quarrel over the proposition that Section 41 (B) of the Act, is applicable only in respect of factories involving hazardous process and that the hazardous process is defined under Section 2(cb). The only point of debate is that whether the petitioner's industry, to which, the Rules, namely, the Highly Flammable Liquids and Flammable Compressed Gases Rules as contained in Schedule 31 under Rule 95 of the Tamil Nadu Factories Rules, 1950, shall be automatically deemed to be a industry involving hazardous process or an industry which is an industry concerning highly flammable liquids and gases.
7. As a matter of fact, Rule 95 is framed with reference to Section 87 of the Factories Act. Section 87 of the Factories Act relates to dangerous operations. As per the same, if the State Government is of the opinion that any manufacturing process or operation carried on in any factory exposes any persons employed it to a serious risk of bodily injury, poisoning or disease, it may frame Rules applicable to any factory 5/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.16416 of 2023 or class or description of factories, in which, the manufacturing process is carried on, specifying the things which are enumerated under Sub-Section A to F of the said Act. It is not the case of the complainant that the petitioner/ accused herein had violated any Rules framed by the State Government under Section 87. Rule 95 and the above Rule mentioned with reference to the inflammable gases are framed under Section 87 only. If there is violation of Rule 87, then, it would be a separate cause of action to file a complaint in that regard. The instant case is one complaining violation of Section 41 (B) with reference to factories employing hazardous processes. The same is defined under Section 2(cb).
8. Section 2 (cb) is extracted hereunder for ready reference:
“(cb) “hazardous process” means any process or activity in relation to an industry specified in the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereof would -
(i) cause material impairment to the health of the persons engaged in or connected therewith, or 6/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.16416 of 2023
(ii) result in the pollution or the general environment:
Provided that the State Government may, by notification in the Official Gazette, amend the First Schedule by way of addition, omission or variation of any industry specified in the said Schedule.”
9. It can be seen that the heading to the 1 st Schedule clearly reads as the list of industries involving hazardous process and the heading is also extracted hereunder:
“THE FIRST SCHEDULE LIST OF INDUSTRIES INVOLVING HAZARDOUS PROCESSES
1. Ferrous Metallurgical industries —Integrated Iron and Steel —Ferrow-alloys —Special Steels ....
.........
29. Highly Inflammable Liquids and Gases”
10. It is only the types of industries which are enumerated. Therefore, Entry 29 should be read as the industry which concerns highly flammable liquids and gases and not every other industry which may use a gas cylinder, for a different process. Therefore, unless the process of 7/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.16416 of 2023 making synthetic yarn/synthetic cord is specifically enumerated in the 1st Schedule, it cannot be said that the same would be an industry which is enumerated in the 1st Schedule. 29 categories of industries have been enumerated in the 1st Schedule, in which, the category of the petitioner's industry does not find a place.
11. Further, it can be seen that Section 2 (cb) also specifies, viz., the hazardous process means any process or activity in relation to an industry which is specified in the 1st Schedule and unless special care is taken, the raw materials used therein, or intermediate or finished products or by products, waste or influence thereof, would cause material impairment to the health of the persons engaged or connected therewith, or result in the pollution of the general environment. The raw material or the intermediate material or the finished product or any by product or waste or effluent is not mentioned in the complaint. As a matter of fact, the gas cylinder which is used, would not come within the purview on the face of Section 2 (cb).
8/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.16416 of 2023
12. It is another thing that if the use of the gas cylinder would amount to a dangerous operation, then Rules can be framed under Section 87 imposing any condition and if that is violated, then the persons can be prosecuted. As far as the present case is concerned, it concerns the violation of Section 41(B) and I am of the view that the petitioner's industry cannot be termed as a factory utilizing hazardous process. With reference to prosecuting a person, the Court has to go as per the strict definition which is contained under the Act and cannot be by way of broader interpretation or by way of enlarging the scope of the hazardous process which is defined under the Act. In that view of the matter, I am of the view that the petitioner is entitled to succeed.
13. Accordingly, this Criminal Original Petition is allowed and the proceedings in S.T.C.No.1625 of 2023, on the file of the Chief Judicial Magistrate, Madurai, shall stand quashed. Consequently, connected Miscellaneous Petitions are closed.
05.09.2024
Index : Yes
NCC : Yes
LS
9/10
https://www.mhc.tn.gov.in/judis
CRL OP(MD). No.16416 of 2023
D.BHARATHA CHAKRAVARTHY,J
LS
TO
1. The Chief Judicial Magistrate,
Madurai.
2. The Deputy Director,
Industrial Safety and Health III,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
ORDER
IN
CRL OP(MD) No.16416 of 2023
Date : 05.09.2024
10/10
https://www.mhc.tn.gov.in/judis