Karnataka High Court
D Kumarswamy (Major) vs State Of Karnataka on 22 August, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 22ND DAY OF AUGUST, 2013
BEFORE
THE HONOURBLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.11146/2012
BETWEEN:
1. D.Kumarswamy, (Major),
Managing Director and occupier,
M/s Sadashiv Sugars Ltd.,
7 KM from Alamatti Bridge on NH-13,
Nagral - Nainegili Village, Bagalkot.
2. M.Balaji, (Major),
General Manager - Works & Factory Manager,
M/s Sadashiv Sugars Ltd.,
7 KM from Alamatti Bridge on NH-13,
Nagral - Nainegili Village, Bagalkot.
...PETITIONERS
(By Sri.K.Kasturi, Senior Counsel for Sri.Harsh Desai, Advocate)
AND:
State of Karnataka,
At the instance of Smt.Bharati Magadum,
Assistant Director of Factories,
(An Inspector appointed under Section 8(1) of the
Factories Act, 1948), Division - II, Hubli.
...RESPONDENT
(By Sri.V.M.Banakar, Additional S.P.P)
2
This Criminal Petition is filed under Section 482 of Code of
Criminal Procedure, 1973, seeking to quash the complaint on the file
of the Civil Judge & JMFC Court, Bagalkot, in C.C.No.266/2012, in
the interest of justice at Annexure-A & B.
This petition coming on for final hearing this day, the Court
made the following:
ORDER
Heard the learned Senior Advocate Shri.K.Kasturi for the petitioners and learned Additional State Public Prosecutor for the respondent.
2. The facts are briefly stated are as follows:
The petitioner No.1 is said to be the Managing Director and occupier of M/s Sadashiv Sugars Limited and Petitioner No.2 is said to be the General Manager-Works & Factory Manager of the said factory. M/s Sadashiv Sugars Limited is situated at Alamatti Bridge on NH-13, Nagral-Nainegili Village, Bagalkot having a 2500 TCD Sugar Plant and 15 MW Co-generation plant producing sugar and power. It has engaged several hundred workers for its core activities. It engages contractors for non-core activities, such as, housekeeping, security, gardening and waste disposal etc., The petitioner-company 3 had engaged a labour contractor for executing project related civil works. One M/s GMS Engineering had been engaged in such civil works. On 26.11.2011 at about 8.45 a.m., one of the contract labourers of M/s GMS Elegant Builders India Pvt. Ltd., namely, Ayyappa, a civil mason had operated the portable grinding machine for removing cement, which was stuck on the wooden piece used for leveling cement plaster. He did not have the knowledge of operating the machine, but operated the same negligently without any instructions from the supervisor. In the result, the wooden piece had got stuck in the grinding wheel and the grinding wheel had broken into pieces and one of the pieces hit Ayyappa on his forehead, causing a serious injury. He was shifted to the hospital at Nidagundi and subsequently to Subhash Patil Hospital. However, the worker succumbed to the injuries, despite the medical treatment.
3. The company had ensured that the labour contractor paid compensation to the family of the deceased, apart from ensuring payment of other amounts that would be payable under the provisions of the Workmen's Compensation Act. It is the case of the petitioners 4 that, the unfortunate accident had occurred on account of sheer negligence on the part of Ayyappa, the deceased employee. He was trying to remove the cement, which was stuck on the Matta Kolu, which is used for leveling cement plaster by masons. He was engaged to do masonry work and not to do any production nor was he authorized or required to clean or operate any machine. The equipment in question was used by farmers who supplied cane to the factory to sharpen their sickles, and it was not meant for cleaning the 'Matta Kolu', which was used by the workman. The workman had experience in operating a grinding machine and since the momentum of spinning of the wheel, resulting in the said 'Matta Kolu' getting stuck in the grinding machine, thereby breaking the wheel into pieces and one of the pieces hitting the workman on his forehead and causing serious injuries, was not as a result of any instructions given to the workman to operate the machine, but it was done on his own and out of sheer negligence. It is this basic defence that is sought to be highlighted in these proceedings. Notwithstanding the same, the respondent namely, the Assistant Director of Factories who is also a 5 Inspector appointed under Section 8(1) of the Factories Act, 1948, (hereinafter referred to as '1948 Act,' for brevity) on being informed of the accident having taken steps and having conducted an inspection of the spot where the accident had occurred, on two occasions, namely, on receiving information on 26.11.2011 the concerned officer had visited the factory and inspected the same on 29.11.2011 and conducted a detailed enquriy about the manner in which the accident had occurred and has opined that, under Rule 83 of the Karnataka Factories Rules, 1969, (hereinafter referred to as '1969 Rules,' for brevity), which reads as follows:
"No machinery, Plant or Equipment shall be constructed, situated, operated and Maintained in any Factory in such a manner as to cause the risk of Bodily injury."
Therefore, by allowing the deceased workman to operate the said machine for removing the cement dust, the occupier and Manager had contravened Rule 83 of the 1969 Rules.
4. Further, Section 7A of the Act prescribed general duties of the occupier and has opined that by allowing the workman without 6 instruction, training and supervision to operate the machinery, the occupier had contravened Section 7A(1) and (2) of the 1948 Act and hence, held that the present petitioners had committed the offence punishable under Section 92 of the Factories Act, 1948 and accordingly, prayed the Court of Judicial Magistrate First Class, Bagalkot in C.C.No.266/2012 seeking punishment of the petitioners by filing the complaint. It is that, which is under challenge in the present petition.
5. Petitioner No.2 had appeared before the Court of Magistrate and has obtained bail. The Magistrate however had issued a non-bailable warrant insofar as petitioner No.1 is concerned. It is at that stage, that the present criminal petition is filed and there is an interim order of stay insofar of further proceedings.
6. The learned Senior Advocate would contend in the above background that, from a plain reading of the Act and Rules, which are said to be violated, insofar as Rule 83 of 1969 Rules is concerned, it is nobody's case that the machinery in question was not properly situated, operated and maintained in the factory. The 7 situation is one where the workman who was not connected with the activity of the factory and who was employed by a contractor to do masonry work had operated the machine and he was not in any way connected with operating the machinery in question, had unauthorizedly utilized the same for a purpose, which was not meant to be used and thereby caused the accident, and it could not be attributed to the negligence or want of diligence on the part of the petitioners. Rule 83 of the 1969 Rules therefore, is pressed into service out of context and without reference to the actual fact situation. Insofar as the general duties of the occupier and the petitioners having failed to comply with the same, is also not relevant for the above reasons. Therefore, he would submit that the question of prosecution of the petitioners in the above circumstances would be out of place and would result in a miscarriage of justice. The respondent having proceeded to attribute negligence and violation of the provisions of the Act and Rules in the above background, is therefore, completely misplaced and ought to be set at naught. 8
7. While the learned Additional State Public Prosecutor would contend that the accident was not denied by the petitioners, therefore, the reasons assigned for the death of the workman are at best the defence that can be set up in the proceedings, that has been initiated before the Magistrate. These are disputed questions of facts, which required to be addressed and unless the petitioners appear before the competent Court and face the trial, the allegations would be foreclosed, if this Court should entertain the present petition on the argument that is canvassed. Further, he would submit that Section 101 would also prescribe that the petitioners appear before the Magistrate concerned and seek exemption from prosecution. If it is the case of the petitioners that they are not responsible for the supervision and compliance with the Act and Rules. Therefore, he would submit that the petition is misconceived and is an attempt at an abuse of process, since the petitioners are armed with adequate remedies under the Act and Rules to place their defence before the competent Court and hence, seeks dismissal of the present petition. 9
8. From a bare reading of the complaint that is lodged before the Magistrate by the respondent, there is no serious dispute about the relationship and the manner in which the accident has occurred. The presumption that the petitioners or anybody under them had permitted the deceased workman to operate the machinery and as a result of which, the accident had occurred and caused the death of the workman is not readily discernible. Apparently, the machinery, photographs of which are annexed to the petition at Annexure-F, was situated in the factory premises and it was provided as a facility for sharpening sickles and obviously not meant for cleaning the wooden 'Matta Kolu', which was sought to be cleaned by the workman. Therefore, it straight away indicated to the negligence on the part of the workman for having experimented in cleaning the tool, which was not meant to be cleaned on the concerned machinery.
9. In this regard, the learned Senior Advocate has placed reliance on the decision of this Court in the case of Ramchandra Vs A.R.Vijendra, ILR 1994 KAR 2437, wherein in identical 10 circumstances, no person, who is an occupier, could be held liable for an accident, which takes place on account of negligence. It was held by this Court, as follows:
"If bodily injury is caused to a worker not on account of any inherent defect in the construction, situation, operation or maintenance of the means of transport, but on account of negligence, then it cannot be said that there is contravention of the Rule."
10. Therefore, applying the same principle in the present case on hand, admittedly, the workman had died as a result of unauthorisedly having used certain machinery, which he was not supposed to use, and when he was not engaged either for operating the machinery or for using the same. But he was engaged through a contractor for masonry work and hence the accident having been caused apparently, was by the unauthorized use of machinery and out of sheer negligence of the workman. It cannot be said that petitioners could be held liable for violation of either provisions of the Act or the Rules. Therefore, the prosecution of the petitioners is misconceived. 11
Accordingly, the petition is allowed. The proceedings in C.C.No.266/2012, stands quashed.
Sd/-
JUDGE MBS/-