Karnataka High Court
Kailash Chandra Jhanwar And Anr vs State Of Karnataka on 24 August, 2023
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CRL.P No. 201262 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T.
CRIMINAL PETITION NO.201262/2023
BETWEEN:
1. MR. KAILASH CHANDRA JHANWAR
OCCUPIER
M/S ULTRATECH CEMENT LIMITED
(UNIT RAJASHREE CEMENT WORKS)
ADITYANAGAR, MALKHED,
SEDAM TALUK,
KALABURAGI DISTRICT -585292.
2. MR.UDAY KUMAR PAWAR
Digitally signed S/O. LATE JANARDHAN PAWAR
by SHILPA R AGE: 52 YEARS,
TENIHALLI FACTORY MANAGER
Location: HIGH M/S ULTRATECH CEMENT LIMITED
COURT OF
KARNATAKA (UNIT RAJASHREE CEMENT WORKS)
ADITYANAGAR, MALKHED,
SEDAM TALUK,
KALABURAGI DISTRICT -585292.
...PETITIONERS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
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CRL.P No. 201262 of 2023
AND:
STATE OF KARNATAKA
BY THE SENIOR ASSISTANT DIRECTOR OF
FACTORIES, MR.V.SUKESHA
KALABURAGI DIVISION,
VASANTH NAGAR,
MSK MILL ROAD,
KALABURAGI-585102.
...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO CALL FOR THE RECORS AND
TO QUASH THE COMPLAINT DATED 17TH SEPTEMBER,
2022 IN C.C. NO.290/2023 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS SEDAM AT ANNEXURE-B AND QUASH THE
ORDER DATED 13.02.2023 IN C.C. NO.290/2023 (PCR NO.
26/2022) ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS COURT, SEDAM,
AT ANNEXURE-A.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 17.08.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT MADE THE
FOLLOWING:
ORDER
1. Heard learned counsel for petitioners and learned HCGP for respondent-State. -3-
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2. The petitioners have filed this petition under Section 482 of Cr.P.C., praying to quash the complaint dated 17.09.2022 in C.C. No.290/2023, on the file of Principal Civil Judge and J.M.F.C., Sedam, Kalaburagi District.
3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. Petitioners are accused Nos.1 and 2 and respondent is complainant.
4. The factual matrix of the prosecution case are as follows:
a) Accused No.1 is the Occupier designated as per the Factories Act, 1948, of one of the factories owned by M/s. Ultratech Cement Limited, situated at Adithya Nagar, Malkhed Road, Sedam Taluk, Kalaburagi District, having Factory License No.MYGB-433. Accused No.2 is the Manager of aforesaid Factory and respondent is the Senior Assistant Director of Factories.-4-
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b) On 28.06.2022 at 3:30 a.m., Sri Narayana, the Vice-President and H.R. of the Factory called the respondent over phone and informed that an accident has occurred in their factory in which a worker by name Sanjaykumar was entangled in the belt conveyor and succumbed to the injuries. Hence, the respondent visited the factory, conducted investigation in respect of accident and found that, the Unit-04(RC-04) of Factory was closed and remaining three units of the factory were manufacturing cement with the aid of machinery run by electrical power, by ordinarily employing around 2600 workers including 1700 contract workers. The respondent on being inspection came to know that, the belt conveyor (514 BC-1) of the Cement Mill in the RC-04 of the Factory, where the alleged incident took place, thus, accused have not provided safety measures in the Factory. The respondent enquired into the accident and a note of inspection was issued covering the details of investigation carried out and a copy of the same was issued with due acknowledgment of the persons present and the -5- NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 management was advised to submit the documents viz., (1) form No.17 (2) Detailed Sketch of incident place (3) Technical details and SOP of the belt conveyor cleaning (4) Copy of Contract Agreement between Management and Contractor (5) Copy of internal enquiry report (6) Personal details of deceased worker viz., attendance, last three months' pay slips and identity card (7) the Post-mortem Report of the deceased worker and (8) Compensation Details paid to the deceased worker family members. The respondent recorded statements of Sri Brij Mohan and Sri Kanteppa on 22.07.2022. On 01.08.2022 the Management of the Factory submitted documents, as sought by the respondent.
c) The respondent, on perusal of inspection report and documents submitted by Management, ascertained that, on 27.06.2022 at around 10:00 p.m., deceased Sanjaykumar, helper attended for his routine job in night shift. On the same day, at 10:30 p.m., Sri Brij Mohan, Shift Engineer received information from C.C.R. that, the -6- NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 belt conveyor was got tripped due to overload. Immediately, Sri Brij Mohan along with Sri Kanteppa, Khalasi and deceased Sanjaykumar went to Tail pulley Section of the belt conveyor. After reaching the Tail Pulley of the belt conveyor, the team of the three members removed the material accumulated at a rear side of the Tail Pulley and asked the C.C.R Operator to give it local mode to check the belt conveyor. After checking and cleaning, they started the conveyor by local mode switch but again the belt conveyor started tripping. On the same night, around 2:00 a.m., Sri Sanjaykumar used a tor rod (2 meters length) for further cleaning of nip portion of the tail drum at a distance of 2.5 meters standing in line of fire on return side of the belt by removing side guard of the conveyor belt. When the stuck material was getting cleared, the tension on carrying side of the belt got normalized and belt moved with jerk in its normal direction. Since Sanjaykumar was standing in line of fire on the return side of the belt, he was drawn into the Tail Pulley along with rod and entrapped between the pulley -7- NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 and the return belt and ultimately he succumbed to injuries.
d) The respondent after collecting all facts and documents gathered during the course of enquiry in to the accident and analyzing all the facts clinically, noticed that the Occupier and Manager of this Factory have violated Rule 84 of the Karnataka Factories Rules, 1969, read with Section 7A(2)(c) of the Factories Act, 1948, which is punishable under Section 92 of Factories Act, 1948. In this regard, the complainant filed -8- NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023
5. Learned counsel for petitioners contended that, the Factory is involved in a dynamic and essential realm of cement manufacturing, a pivotal industry that plays a crucial role in the construction and infrastructure development worldwide and the Company has a leading player in the market, catering to the increasing demand for top quality cement products. The Factory has undertaken safety norms, rigorous safety protocols at every step of production process. All employees are undergone extensive training to equip them with knowledge and skills needed to identify and respond to safety hazards effectively. In spite of all these best efforts, an unfortunate incident occurred in the Factory on 28.06.2022.
6. It is further contended that every citizen has a right, not to be prosecuted frivolously for offences that have not been committed, since an unnecessary trial of the accused amounts to unwanted harassment in view of ratio laid down in the case of R. Kalyani versus Janaki -9- NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 C. Mehata reported in (2009) 1 SCC 516. It is further contended that since the Company has not been made as party, the complaint is not maintainable in view of ratio laid down in the case of Aneeta Hada v. M/s. Godfather Travels and Tours, reported in (2012) 5 SCC 661. It is contended that, the learned Magistrate has not taken cognizance properly, the respondent has not made any averments in the complaint, as to how, each of the petitioners are responsible for the alleged offences and has merely mentioned that, they are occupier and Factory Manager respectively. The accident in question occurred due to violation of a special instruction given by a superior and in complete ignorance of the specific written instructions, but the respondent has ignored this aspect, and thus, submitted false complaint against accused Nos.1 and 2 without any substance. It is contended that, the learned Magistrate took cognizance of the offence, which is disregard to the ratio laid down in the case of Ravindranath Bajpe versus Mangalore Special Economic Zone Limited, decided by Hon'ble Supreme
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 Court of India in Crl.A. No.1047-1058/2021 on 27.09.2021, wherein the Hon'ble Supreme Court held that, the officials of a Company like the Chairman, Managing Director or Director cannot be held vicariously liable under Criminal Law for the offence committed by Company, unless there are specific allegations and averments against them, with respect to their individual role and involvement in the commission of the offence. It is contended that, as per Companies operational procedure-House keeping at below conveyors, the shift incharge/Section Engineer is responsible for the whole activity. Hence, the present complaint is not maintainable against accused Nos.1 and 2, therefore, prays to quash the entire proceedings.
7. The learned Counsel for petitioners relied upon following decisions:
i) (Major) D. Kumarswamy And Another v. State of Karnataka - 2013 LLR 1259
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ii) Dr. Vinod Nowal and Another v. State of Tamil Nadu - Crl.O.P. Nos.9742 & 9743/2021 & Crl.M.P. Nos.6029 & 6031/2021
iii) Ramachandra vs. A.R. Vijendra - ILR 1994 Kar 2437
8. Learned HCGP filed statement of objections contending that the alleged violation of the Rule (84) of Karnataka Factories Rules read with Section 7A(2)(c) of Factories Act, 1948 attracts the offence under Section 92 of the Factories Act. It is contended that, Under Section 92 of the Factories Act contravention of any of the provisions of this Act or of any Rules made there under or any order in writing given there under, the Occupier and Manager of the Factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to 2 years or with fine which may extend to One lack Rupees or with both. She further contended that complaint dated:17.09.2023 clearly shows contravention
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 of Rule (84) of the Karnataka Factories Rules 1969 read with Section 7A(2)(c) of the Factories Act, 1948 and as per the incident investigation Report dated 04.07.2022, it can be noticed that the Occupier and Manager (petitioners) have violated the above mentioned Rules. It is submitted that, safety observation and Audit Sub-Committee role is to safeguard the life of the workers by guiding as well as checking whether workers are used safety measures at the time of work, but in this case committee fails to do so and on the basis of the sworn statement of complainant sufficient materials are available to proceed against accused. It is submitted that, by paying compensation of Rupees 21 lakhs to the family of deceased, thus, it does not mean that the petitioners are escaped from penal liability for gross violation of provisions under Section 92 of Factories Act, hence, prays to dismiss the petition.
9.
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10. As per the case of prosecution, On 28.06.2022 at 3:30 a.m., Sri Narayana, the Vice-President and H.R. of the Factory called the respondent over phone and informed that an accident has occurred in their factory in which a worker by name Sanjaykumar was entangled in the belt conveyor and succumbed to the injuries.
11. The aforesaid facts not being in dispute are not reiterated. The Company is not arrayed as an accused in the impugned proceedings. The law in regard to the Company not being made a party and the complaint getting vitiated on that score is considered by the Apex Court in the case of ANEETA HADA(supra).
12. This Court following the aforesaid judgment in the case of B.K.PANDURANGA1 (supra) has quashed the proceedings on the ground that the Company was not arrayed as an accused.
1 Crl.P.No.8579/2015 decided on 1-02- 2016
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13. Again in the case of VIGNESHWAR GOPAL KRISHNA BHAT2 following the judgment of the Apex Court in the case of ANEETA HADA (supra) has quashed the proceedings. Therefore, what would emerge in the first blush on placing reliance upon the aforesaid judgments is that without making the Company as party, the private complaint registered by the respondent against the petitioners would not be maintainable, but the issue requires a deeper delving.
14. The law as laid down by the Apex Court in the case of ANEETA HADA (supra) has been followed by this Court in plethora of judgments. The point that falls for consideration is whether those judgments would straight away cover the present case at hand, which requires interpretation of the Factories Act.
15. The language employed in Section 141 of the Negotiable Instruments Act is plain and clear. The finding has to be recorded that the Company has committed the 2 Crl.P.No.2872/2018 decided on 28-06-2018
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 offence and such finding cannot be recorded unless the Company is before the Court. It is in that purport the decision in the case of ANEETA HADA(supra) was rendered.
16. This Court in the case of B.K. PANDURANGA(supra) was interpreting the provisions of 'Equal Remuneration Act, 1976' and 'The Payment of Gratuity Act, 1972'.
17. In the case of VIGNESHWAR GOPAL KRISHNA BHAT (supra), the provisions of the 'Payment of Wages Act, 1936', fell for interpretation.
18. Here again, the Directors of the Company were directed to be made parties as the representative cannot be fastened with criminal liability for violation of Payment of Wages Act.
19. The Factories Act is considered qua the maintainability following the earlier judgments in several criminal petitions, as can be found at Para 8 of the
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 judgment in Rajeev Kourav vs. Baisaheb and Others' case and has held that the judgment in ANEETA HADA would bind the Court insofar as the Company not being made a party for a FIR to be registered. It is held that the said finding having vitiated the proceedings to prosecute the accused for the offence punishable under Section 92 of the Factories Act, a parallel proceeding pursuant to an FIR was not maintainable.
20. All these judgments are followed in the case of MANI K. THOMAS (supra). MANI K. THOMAS was concerning initiation of proceedings under Section 22A of the 'Minimum Wages Act, 1948'. Therefore, all the judgments relied on by the learned Senior Counsel were following the decision in the case of ANEETA HADA(supra) and interpreting relevant provisions of respective enactments which require the Company to be arrayed as a party. The provisions of the Factories Act stand on a different footing.
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21. The Factories Act, 1948, is an Act to consolidate the law regulating factories. It is a piece of social welfare legislation enacted primarily with the object of protecting workmen employed in factories against industrial and occupational hazards. It seeks not only to ensure that workers would not be subjected to long hours of strain but also that employees should work in safe, healthy and sanitary conditions and that adequate precautions are taken for their welfare and safety. The stringent provisions relating to the obligations of the occupiers or managers with a view to protect workers and to secure to them employment in conditions conducive to their health and safety indicate the broad purpose of the Act. The Act and the Rules made there under impose numerous restrictions upon the occupier or manager of the factory to ensure to workers adequate safeguards for their health and physical well-being and to secure them safe and healthy conditions at the place of work. The 1948 Act was amended by Act 94 of 1976, with a view to remove some lacunae relating to the definition of 'workers' and for
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 improvement of the provisions in regard to safety of workers and appointment of safety officers and to provide for an enquiry in every case of a fatal accident. Some difficulties experienced in the administration of the 1948 Act even after the 1976 Amendment, specially those relating to hours of employment, safety conditions and development of appropriate work culture conducive to safety and health of workers particularly in case of factories which deal with hazardous materials and the escape routes which the employers had found to shift their responsibilities on some employee or the other and escape punishment and penalty, which were also noticed in certain judgments of this Court, led Parliament to amend the Act in 1987 which inter alia amended Section 2(n), deleted Section 100 and incorporated Sections 7, 7-A, Chapter IV-A, Section 104-A and Section 106-A, besides certain other provisions.
22. It was, thereafter, that Parliament stepped in and passed the Amendment Act 20 of 1987, which as
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 already noticed, besides amending the definition of an occupier under Section 2(n) of the Act by addition of various provisos thereto also made some more significant changes in the Act. The Statement of Objects and Reasons of Amendment Act 20 of 1987, reads as follows:
"Statement of Objects and Reasons.--(1) The Factories Act, 1948, provides for the health, safety, welfare and other aspects of workers in factories. The Act is enforced by the State Governments through their Factory Inspectorates. The Act also empowers the State Governments to frame rules, so that the local conditions prevailing in the State are appropriately reflected in the enforcement. The Act was last amended in 1976 for strengthening the provisions relating to safety and health at work, extending the scope of the definition of 'workers', providing for statutory health surveys, and requiring appointment of safety officers in large factories.
(2) After the last amendment to the Act, there has been substantial modernisation and innovation in the industrial field. Several chemical industries have come up which deal with hazardous and toxic substances. This has brought in its train problems of industrial safety and occupational
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 health hazards. It is, therefore, considered necessary that the Act may be appropriately amended, among other things to provide specially for the safeguards to be adopted against use and handling of hazardous substances by the occupiers of factories and the laying down of emergency standards and measures. The amendments would also include procedures for sitting of hazardous industries to ensure that hazardous and polluting industries are not set up in areas where they can cause adverse effects on the general public. Provision has also been made for the workers' participation in safety management.
(3) Opportunity has been availed of to make the punishments provided in the Act stricter and certain other amendments found necessary in the implementation of the Act."
23. It is in this background that I shall consider the scope and validity of Section 2(n) of the Act as amended in 1987. According to the definition of the 'occupier' under Section 2(n), an occupier means a person who is in "ultimate control over the affairs of the factory". Though the word 'person' has not been defined under the Act, but
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 under Section 3(42) of the General Clauses Act, a person has been defined to include a company or association or body of individuals, whether incorporated or not. Such a person, under clause 2(n) of the Act, therefore, could be a company or a partnership or an association of persons or an individual. Where the factory is owned or run by a company, it would be that company which would be the occupier of the factory. Under Section 100, as it stood originally, where the occupier of the factory was a company, any one of the directors may be prosecuted and punished and the company could give a notice identifying such a director. It was, therefore, as already noticed, optional for the company to notify a director as the occupier. The company could nominate any other officer or employee also as an occupier. The Amending Act of 1987 eliminated altogether Section 100 and instead introduced into Section 2(n) various provisos and in proviso (ii) provided a deeming fiction, as to what would happen if the occupier was a company. Criminal liability in case of a default
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 would primarily attach to the company, as the occupier of the factory and, therefore, it has been provided that in the case of a company, any one of the directors of the company shall be deemed to be the occupier. To remove the ambiguity and ensure that a mere 'authorisation' by the Board of Directors of any of its employees or officers, by a resolution, to be the occupier was not allowed to defeat the object of the Act, particularly in matters of punishment and penalty, Parliament also enacted Sections 7 and 7-A of the Act by the Amending Act 20 of 1987 [Ed.: S. 7 was a pre-existing provision when Amending Act 20 of 1987 was enacted and is neither amended by it.].
24. Section 7(1) of the Act reads as under:
"7. (1) The occupier shall, at least fifteen days before he begins to occupy or use any premises as a factory, send to the Chief Inspector a written notice containing--
(a) the name and situation of the factory;
(b) the name and address of the occupier;
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 (bb) the name and address of the owner of the premises or building (including the precincts thereof) referred to in Section 93;
(c) the address to which communication relating to the factory may be sent;
(d) the nature of the manufacturing process--
(i) carried on in the factory during the last twelve months in the case of factories in existence on the date of commencement of this Act; and
(ii) to be carried on in the factory during the next twelve months in the case of all factories;
(e) the total rated horse power installed or to be installed in the factory, which shall not include the rated horse power of any separate standby plant;
(f) the name of the manager of the factory for the purposes of this Act;
(g) the number of workers likely to be employed in the factory;
(h) the average number of workers per day employed during the last twelve months in the case of a factory in existence on the date of the commencement of this Act;
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(i) such other particulars as may be
prescribed.
7-A. General duties of the occupier.--(1)
Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include--
(a) the provisions and maintenance of plant and systems of work in the factory that are safe and without risks to health;
(b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work;
(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;
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(e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.
(3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organization and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed."
19. Under Section 7, a notice is required to be given to the Chief Inspector, disclosing the name of the occupier at least fifteen days before he occupies or begins to use any premises as a factory. It also requires the disclosure of the name of the owner of the premises or building and the name and particulars of the Manager. Section 7-A prescribes the duties of the occupier. The provisions of Sections 7 and 7-A when considered in the light of proviso (ii) to Section 2(n), leave no manner of doubt that it is a statutory obligation under Section 7 of the Act after 1987 to nominate
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 the occupier before the occupier occupies or begins to use the premises to run the factory and in the case of an existing factory seeks the renewal of the licence to continue to operate the factory. It is only when this statutory requirement is fulfilled that the factory would be given the licence or its licence shall be renewed in the case of existing factories. The argument of the learned counsel for the appellants/petitioners that the expression 'person' in Section 2(n) implies only an individual does not bear scrutiny, when construed in the case of a company, a firm of partners or an association of persons. Where it is the company which owns or runs such a factory, it is the company which has the ultimate control over the affairs of the factory, and, therefore it would be the company which would be the occupier of that factory. However, since a company is a legal abstraction, it can act only through its agents who in fact control and determine the management and are the centre of its personality. Such agents are generally called the directors being the "directing mind and will" of the company. The deeming fiction under proviso (ii), therefore, only clarifies the position where company is the occupier of the factor. The legislature by providing the deeming fiction under proviso
(ii) did not detract from the generality of the main provision under Section 2(n), but only
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 clarified it. The directors are not the employees or servants of the company. They manage, control and direct the business of the company as 'owners' (Section 291 of the Companies Act). The directors are often referred to as the "alter ego" of the company. Where the company owns or runs a factory, it is the company which is in the ultimate control of the affairs of the factory through its Directors. An employee or officer of the factory or of the company, even if authorized by the Board of Directors by a resolution to be a person "in the ultimate control of the affairs of the factory" cannot be so. Such an employee only carries out orders from above and it makes no difference that he has been given some measure of discretion also and has supervisory control. He can at best be treated to be in the immediate control of the affairs of the factory or having day-to-day control over the affairs of the factory, the ultimate control being retained by the company itself. The legislature did not resignedly use the expression immediate or day-to-day or supervisory control instead of ultimate control in the main provision of Section 2(n)
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25. It is in the light of the above-settled principles that I shall consider the true scope and intent of Section 2(n) with reference to proviso (ii) thereto within the scheme of the Act. Can Section 2(n) stand without proviso (ii) in the case of a company? What is the true function of proviso (ii) to Section 2(n)?
26. Let us now examine proviso (ii) to Section 2(n) to determine whether it is inconsistent with or beyond the main provision of Section 2(n).
27. On perusal of the material available on record and the ratio laid down in the decision cited supra, the Apex Court unequivocally holds that, in case of a Company which owns the factory, it is only one of the Directors of the Company who can be notified as the occupier of the factory for the purpose of the Factories Act and the Company cannot nominate any other employee to be the occupier of the factory. Where the Company has failed to nominate one of its Directors as occupier of the factory, the Inspector of Factories shall be at liberty to
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 proceed against any one of the Directors treating him as deemed occupier of the factory for the purpose of prosecution and punishment.
28. The case at hand is whether one of the Directors of the Company is to be shown as occupier. The Hon'ble Apex Court in the case of J.K. INDUSTRIES LIMITED AND OTHERS Vs. CHIEF INSPECTOR OF FACTORIES AND BOILERS AND OTHERS, has held that, when a company holds a factory the one of the Directors of the Company has to be notified as the occupier of the factory and any other employee cannot be nominated by the Company as an occupier of the factory. Therefore, the Director is the occupier and the occupier is the representative of the Company. The Company under the Factories Act need not be made an accused as there is no provision under the Factories Act, akin to Negotiable Instruments Act, Equal Remuneration Act, Payment of Gratuity Act, Payment of Wages Act and Minimum Wages Act.
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29. Thus, the judgments rendered by the Co- ordinate Benches of this Court (supra) or the case of ANEETA HADA would not be applicable to the facts of the case at hand or even the statute that has fallen for consideration in the case at hand. The Factories Act as held by the Apex Court in the case of J.K. INDUSTRIES LIMITED is a complete code by itself. Therefore, the interpretation rendered by the Apex Court in the case of J.K. INDUSTRIES LIMITED interpreting the Factories Act would be applicable to the case at hand and not the one that are relied upon by the learned Senior Counsel.
30. Section 2(n) of the Factories Act and its proviso makes it clear that one of the Directors of the company would be responsible for proper implementation of the provisions of the Act. This ensures that more care is taken for the maintenance of the factory and various safety measures prescribed under the Act, so that the health, welfare and safety of the workers are not neglected. It is the occupier who would become responsible for all such
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 acts of a factory. It is not in dispute that the petitioners are the occupier and manager of the factory against whom the allegation is now made. They are the one who exercises ultimate control over the affairs of the factory. The ultimate control exercised over the affairs of the factory cannot be equated with the ultimate control over the affairs of the company. The affairs of the factory relate to the manner in which the factory is to be run and the violation relates to the violations of the Factories Act.
31. In the instant case, the offence alleged against the petitioners is with regard to the violation of Section 7A(2)(c) of the Factories Act. which reads as follows:
"7-A. General duties of the occupier.--(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) ... ... ... ...
a) ... ...
b) ... ...
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(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work;
(d) ... ...
(e) ... ..."
(Emphasis supplied)
32. Section 7A(2)(c) of the Factories Act does not require an order to be passed for the alleged offence.
33. Section 107 of the Factories Act deals with appeals that can be filed against the orders passed in writing by an Inspector under the provisions of the Factories Act. Section 107 reads as follows:
"107. Appeals.--(1) The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act or the occupier of the factory may, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 by the State Government, confirm, modify or reverse the order.
(2) Subject to rules made in this behalf by the State Government (which may prescribe classes of appeals which shall not be heard with the aid of assessors), the appellate authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the appellate authority and the other by such body representing the industry concerned as may be prescribed:
Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the appellate authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit, without the aid of any assessor.
(3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the appellate authority may in any case think fit to impose, the appellate authority may, if it thinks fit, suspend the order appealed against pending the decision of the appeal."
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023
34. Section 107 gives a right to the occupier to file an appeal against an order that would be passed as mandated under certain provisions of the Factories Act. Therefore, Section 107 directs that an occupier of a factory on whom an order in writing by an Inspector has been served, the occupier of the factory may within 30 days of the service of the order, appeal against it to the prescribed authority and the authority subject to Rules made in this behalf modify or reverse the order. Therefore, emphasis under Section 107 of the Factories Act is an order in writing to be passed by the Inspector and the same to be served under the provisions of the Factories Act.
35. The allegation against the petitioners, as stated herein above, is violation of Section 7A(2)(c) of the Factories Act, which does not require an order to be passed in writing or the same to be communicated to the occupier. Sections 15, 38, 39 and 40 of the Factories Act speak of an order to be passed in writing by the Inspector
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 and to be served upon the occupier of the factory. Sections 15(3), 38(1), 39 and 40(2) of the Factories Act read as follows:
"15. Artificial humidification.--(1) In respect of all factories in which the humidity of the air is artificially increased, the State Government may make rules,-
... ... ... ...
(3) If it appears to an Inspector that the water used in a factory for increasing humidity which is required to be effectively purified under sub-section (2) is not effectively purified he may serve on the manager of the factory an order in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before specified date.
... ... ... ...
38. Precautions in case of fire.--(1) In every factory, all practicable measures shall he taken to prevent outbreak of fire and its spread, both internally and externally, and to provide and maintain-
(a) safe means of escape for all persons in the event of a fire, and
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(b) the necessary equipment and facilities for extinguishing fire.
... ... ... ...
39. Power to require specifications of defective parts or tests of stability.--If it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life or safety, he may serve on the occupier or manger or both of the factory an order in writing requiring him before a specified date-
(a) to furnish such drawings, specifications and other particulars as may be necessary to determine whether such building, ways, machinery or plant can be used with safety, or
(b) to carry out such tests in such manner as may be specified in the order, and to inform the Inspector of the results thereof.
40. Safety of buildings and machinery.-
(1)... ...
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 (2) If it appears to the Inspector that the use of any building or part of a building or any part of the ways, machinery or plant in a factory involves imminent danger to human life or safety, he may serve on the occupier or manager or both of the factory an order in writing prohibiting its use until it has been properly repaired or altered."
(Emphasis supplied)
36. Therefore, if an order is not obligatory to be passed under the statute, no appeal would lie against the offence alleged under Section 7A(2)(c) of the Factories Act as is alleged in the case at hand. The inevitable inference that can be drawn is Section 107(1) of the Factories Act contemplates appeal from an order in writing by an Inspector served on the occupier under Sections 15(3), 38(1), 39 and 40(2) of the Factories Act (supra). Therefore, the plea that a right of appeal is lost is also lost by the learned Senior Counsel.
37. In the instant case the petitioners have sought to quash the complaint as well as the entire proceedings in
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 C.C.No.290/2023, on the various grounds discussed above, including the ground of they maintaining safety measures in the factory, and they took contention that, the deceased Sri. Sanjay Kumar was negligent, thus un- towards incident happened.
38. On perusal of the report of inspector and the complaint, it appears that it is mandatorily necessary that any work involving hazards process needs to be executed with reliable safe procedures. In the instant case, the counter weight was not lifted or the tension in the belt was relieved or the object in the belt was not removed, the appropriate belt clamps are not fixed on the return and carrying side of the belt to prevent the movement of the belt due to potential energy. The petitioners, without removing the hazards, allowed the worker to clean or remove the jam of the conveyor belt by removing the side guard. If the counter weight had been lifted to a considerable height to release the pressure in the belt and suitable belt clamps had been fitted to the back of the belt
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 to prevent movement of the belt, this accident could have been prevented. Further, as per the report, the standard operating procedure drawn or prepared for clean or removing the jam of conveyor belt is not correct, and the management has not carried the JSA to foresee the hazard associated with clean or removing the jam of conveyor belt. Under the factories act, it is fundamental responsibility of the occupier and the manager to ensure the safety of the workers by adopting a safe method of work and to maintain the equipment in a way that doesn't cause any physical injuries. But, the petitioners have disputing these factual aspects. Disputed question of fact, which cannot be adjudicate upon by this court u/s 482 Cr.P.C. At this stage, only prima facie case is to be seen. This ratio is laid down in case of M/s Neeharika Infrastructure Pvt. Ltd., V/s State of Maharastra, reported in AIR 2021 SC 1918.
39. The counsel for petitioner relied upon (Major) D. Kumarswamy's case, wherein, the co-ordinate bench
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 of this Court, held that, "due to negligence on the part of the workman the accident caused, by un-authorized use of machinery and out of sheer negligence of the workman, thus the Court held, the occupier and the manager not responsible, hence quashed the proceedings".
40. In Ramachandra's case, relied upon by the petitioners, the co-ordinate bench of this Court held that, "due to negligence in carrying out work which is permissible, an accident takes place, the occupier cannot be held responsible". In Ramachandra's case, the incident took place on account of the shunting work being done without giving prior signal and moving carriages without taking any precautions and negligently. Whereas in the instant case, the incident occurred, due to non- removal of hazards, allowed the deceased worker to clean or remove the jam of the conveyor belt by removing the side guard. If the counter weight had been lifted to a considerable height to release the pressure in the belt and suitable belt clamps had been fitted to the back of the belt
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 to prevent movement of the belt, the incident could have been prevented. Therefore, the facts and circumstances stated in (Major) D.Kumaraswamy's case and Ramachandra's case are not applicable to the case on hand.
41. As per oxford dictionary the term 'negligence' means, 'want of proper care and attention and carelessness'.
42. As per Collin's English Dictionary, the term 'negligence' defined that, if some one is guilty of negligence, they have failed to do something which they ought to do. Whereas, in the instant case, the petitioners ought to have taken due care, before sending a deceased to clean or for removal of material accumulated at a rear tail pulley of belt conveyor.
43. The Hon'ble Apex Court in the case of Rajeev Kourav vs. Baisaheb and Others reported in (2020) 3 SCC 317 at Para 8 has held as under:
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 "It is no more res integra that exercise of power under Section 482 Cr.P.C., to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 Cr.P.C., for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding."
44. On perusal of the case, it appears that, the material produced by the accused, in their defence cannot
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 be looked into, except in very exceptional circumstances, at the initial stage of the criminal proceedings. In the instant case, prima facie case is made out, disclosing the ingredient of the offence alleged against the accused persons.
45. Hence, the contentions raised by the petitioners would be considered in full fledged trial. Hence, at this stage, there are no grounds to quash the proceedings initiated against the petitioners.
46. In view of preceding analysis, I do not find any ground to interfere with the proceedings initiated against the petitioners in terms of the Factories Act, 1948. Hence, I proceed to pass the following;
ORDER The petition filed under Section 482 of Cr.P.C., praying to quash the complaint dated 17.09.2022 in
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NC: 2023:KHC-K:6778 CRL.P No. 201262 of 2023 C.C.No.290/2023 on the file of learned Principal Civil Judge and JMFC, Sedam, is dismissed.
Sd/-
JUDGE SBS List No.: 2 Sl No.: 1