Karnataka High Court
Mr.Shailendra K. Jain vs State Of Karnataka on 27 January, 2020
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R
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 27 T H DAY OF JANU ARY 2020
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
CRIMINAL PETITIO N NO.100117/2019
BETWEEN:
1. MR.SHAILENDRA K. JAIN
OCCUPIER UNDER THE FACTORIS ACT
AGE: 73 YEARS ,
R/O: M/S. GRASIM INDUS TRIES LIM ITED,
UNIT: GRASILENE DIVISION
POST: KUMARAPATNAM,
TQ: RANEBENNUR, DIS T: HAVERI.
2. MR.AJAY GUPTA
FACTORY MANAGER UNDER FACTORIES ACT,
AGE: 52 YEARS ,
R/O: M/S. GRASIM INDUS TRIES LIM ITED,
UNIT: GRASILENE DIVISION
POST: KUMARAPATNAM,
TQ: RANEBENNUR, DIS T: HAVERI.
... PETITIONERS
(BY SRI GANGADHAR S. HOSAKERI, ADVOCATE.)
AND:
STA TE OF KARNA TAKA
THROUGH ASST. DIRECTO R OF FACTORIES,
DIVISION-2, HUBBALLI.
... RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP.)
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THIS CRIMINAL PETITION IS F ILED UNDER
SECTION 482 OF CR.P.C., PRAYING TO QUASH TH E
COMPLAINT AND CRIMINAL PROCEEDINGS AGAINST
THE PETITIONERS IN C.C.NO .430/2018 BEFORE TH E
PRL.CIVIL JUDGE AND I-ADDL.JMFC, RANEBENNU R,
DIST HAVERI, FO R THE OFFENCES UNDER SECTION
7-A OF THE FACTORIES ACT, PU NISHABLE UNDER
SECTION 92 OF TH E FACTORIES ACT, ETC.,.
THIS PETITION COMING ON FOR FURTHER
ARGUMENTS TH IS DAY, THE COURT PASSED TH E
FOLLOWING:
ORDER
This is a criminal petition filed under section 482 of Cr.P.C., seeking to quash the proceedings initiated against the petitioners in C.C.No.430/2018, on the file of Prl. Civil Judge and I Addl. JMFC, Ranebennur, for the offence under section 7A of Factories Act, 1948, (hereinafter referred to as 'the Act' for short) punishable under section 92 of the Act.
2. The brief facts of the case are that, the petitioner No.1 is designated as occupier of the factory under the Act, 1948, at the time of accident and petitioner No.2 is the factory 3 manager under the Act, in the factory by name Grasim Industries Limited, Grasilene Division, Kumarapatnam, tq: Ranebennur, Dist: Haveri. The said company is registered under the provisions of the Companies Act, 1956, and having its registered office at Nagda, Madhya Pradesh. The company is engaged in manufacturing of reyon grade pulp and viscose staple fiber, besides producing allied by-product such as sodium sulphate, etc.,. The Grasim Industries is selling sodium sulphate to various industrial customers. One of such industrial customer M/s.Bhagavathi Chemicals situated at Rajahmundry, Andhra Pradesh, placed order for purchase of sodium sulphate from the petitioners above mentioned plant. Accordingly M/s.Bhagavathi Chemicals was required to lift the sodium sulfate purchased by it from the petitioners factory at their own cost. Accordingly M/s.Bhagavathi Chemicals engaged M/s.Parmar Roadlines, P.B.Road, Harihar, as 4 their authorized transporter for carrying the said consignment of sodium sulphate from Grasim Industries Limited. It was the sole responsibility of purchaser M/s.Bhagavathi Chemicals to make an arrangement for loading of material in the truck engaged by it from the sodium sulfate godown of the petitioners. Accordingly M/s.Bhagavathi Chemicals engaged truck No.AP-07/TE-2939 through its authorized transporter M/s.Parmar Roadlines, on 13.8.2018, which was being driven by its driver one Sri K.Ramulu accompanied by lorry cleaner deceased Ramaswamy, entered the factory premises for loading of the material. At the time of entry in the factory, a gate pass was issued at the security post, mentioning the name of driver and cleaner. They were also provided with personal safety protection equipments and they were instructed about the safety procedure of the factory. After loading, the truck moved out of the 5 area and took left turn to go towards tarpaulin covering area. At the same time, lorry cleaner Ramaswamy recklessly and negligently ran and tried to enter the moving truck by holding the handle on the left side and putting one leg on the foot rest while the truck was in motion. While doing this willful unsafe act, lorry cleaner slipped and went under the moving truck. During this unsafe act, lorry driver also failed to stop. Sri Vikram Kumar, SIS Security Staff of the company, who was directing the vehicles and others in the sodium sulphate area, started blowing whistle when he saw the cleaner Ramaswamy trying to climb the moving vehicle. Victim was immediately rushed to Civil Hospital for medical help in company ambulance along with doctors. On reaching the hospital, the doctors declared him dead.
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3. The petitioners have stated that accident no doubt took place due to sheer negligent unsafe act of both driver and cleaner. Due to the negligent act of the driver, the police have filed criminal case against him before the Addl. Civil Judge and II Addl. JMFC, Ranebennur, for the offence punishable under section 304-A of IPC in C.C.No.435/2018. Petitioner No.2 informed the respondent about the accident and the respondent visited the factory and after inspection, issued a show cause notice dated 10.10.2018 to the petitioners alleging that the petitioners have contravened the provisions of the Act. Petitioner No.2 submitted a detailed reply clearly explaining that the fatal accident was due to contributory negligence of the driver and the deceased cleaner, without the knowledge, consent and connivance of the occupier and factory manager, whereas all sound safety measures were in place in the factory premises, but ignoring the 7 real fact leading to fatal accident, ADF mechanically lodged the prosecution against the petitioners under section 92 of the Act. The Court has taken cognizance of the alleged offence against the petitioners. Therefore the petitioners have filed the present petition seeking to quash the said proceedings.
4. The petitioners have further stated that the driver of the truck and the deceased cleaner were not employed by the petitioners for manufacturing process or any incidental work to manufacturing process in the factory. Both the driver and the deceased cleaner were employees of transporter M/s.Parmar Roadlines. The service of them was engaged by the purchaser of the material M/s.Bhagavathi Chemicals. Therefore the deceased cleaner was not the worker as defined under section 2(l) of the Act and therefore the provisions of the Act are not applicable in respect 8 of the accident resulting the death of lorry cleaner. The petitioners have not contravened the provisions of section 7A of the Act punishable under section 92 of the Act. The petitioners have given reply to the show cause notice issued by the respondent and they are made unnecessarily to face the criminal prosecution, which is causing harassment to them. Therefore the proceedings initiated against them be quashed.
5. Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the respondent.
6. The learned counsel for the petitioners submitted, there was no privity of contract between the transporter and the petitioners nor the deceased was their worker nor he was engaged in the manufacturing process or in any incidental work of manufacturing process in the factory. The deceased is not covered under the definition of the 9 'worker' under the Act. Even in the complaint filed by the respondent, nowhere it is stated that the deceased was worker of the petitioners as defined under the Act. Therefore the petitioners cannot be prosecuted for the alleged offence and the initiation of the proceedings against them amounts to misuse of process of law and the same is liable to be quashed.
7. The learned counsel in support of his submissions relied on the judgments in the case of State of Kerala vs. V.M.Patel, 1960 KLJ 1524; D.Kumarswamy (Major) and another vs. State of Karnataka, 2013 LLR 1259;
Ramachandra vs. A.R.Vijendra, ILR 1994 Karnataka 2437; The Factory Manager, Cimmco Wagon Factory vs. Virendra Kumar Sharma and others, (2000) 6 SCC 554 and also the case of Ramlanshan Jageshar vs. Bombay Gas Company Limited, AIR 1961 Bombay 184.
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8. Per contra, the learned High Court Government Pleader submitted that the petitioner ought to have proceeded under section 101 of the Act providing information to the respondent as to the persons who are responsible for the death of the deceased in their factory. That the petitioners had an opportunity to give a notice to the public prosecutor immediately after appearing in the proceedings before the trial Court.
9. The facts as stated in the petition are not much disputed. It is not disputed that the petitioners company M/s.Grasim Industries Limited had sold sodium sulphate to one of their customers M/s.Bhagavati Chemicals, situated at Rajahmundry, Andhra Pradesh and they had engaged the service of M/s.Parmar Roadlines, for lifting the said goods from the sodium sulphate godown of the petitioners. It is also not disputed that on the date of accident, namely, on 11 13.8.2018, M/s.Parmar Roadlines sent lorry bearing No.AP-07/TE-2939, for lifting the goods and the same was driven by one K.Ramulu and the deceased Ramaswamy was the cleaner in the said lorry. It is also not much disputed that the goods were loaded in the said lorry and when the lorry moved out of the area and took left turn to go towards tarpaulin covering area, the deceased Ramaswamy ran and tried to enter the moving truck by holding the handle on the left side and putting one leg on the foot rest, thereby he slipped and underwent the moving lorry, due to which he sustained fatal injuries and succumbed to the injuries.
10. The respondent has issued a show cause notice to the petitioners on 10.10.2018 wherein it is not at all stated that the deceased was workman of the petitioners and that they had engaged him or that he was involved in the 12 manufacturing process or incidental work of manufacturing process in the factory, which is the requirement of section 7A of the Act. The entire material on record goes to show that the deceased was not a workman under the petitioners as defined under section 2(l) of the Act. Therefore the petitioners cannot be prosecuted for violation of section 7A of the Factories Act.
11. The Hon'ble Apex Court in the case of State of Kerala stated supra, has considered the definition of 'worker' under section 2(l) of the Act. In paragraph No.6 of the judgment, the Apex Court has held as follows:
6. We have however, to consider the def inition of "worker", as it is on the in terpretation of that word that the entire controversy in this case centers. A worker is def ined in Section 2(1) as follows:
"Worker", means a person
employed, directly or through any
agency, whether for wages or not, in any manuf actur ing process......or in any other 13 kind of work incidental to, or connected with, the manufac turing process, or the subject of the manuf acturing process.
No doubt, the def inition is very wide, and appears to take in any person employed in any manuf actur ing process, howsoever his services may have been obtained and whether or not he is remuner ated by wages. The Respondent, however, relies upon a decision of this Cour t in Shr i Chin taman Rao and Another v. The State of Madhya Pradesh ((1958) S.C. Rule 1340) where cer tain tests f or determining who is a worker with in this def inition, have been laid down. The Appellan t seeks to distinguish this case, and we have only to see whether it covers the present fac ts or not. Bef ore we do so, we may state that the ruling made a d istinction between workers employed by an owner and workers employed by an independen t contr ac tor. Emphasis was laid upon the word "employed" in the def inition, and it was observed that unless the workers were employed 'by the f actory' there would be no responsibility on the occupier or the manager, if the employmen t proceeded f rom some independent contractor. The ruling thus gave a restr icted meaning to the words of the def inition "employed in any manuf actur ing process", and laid emphasis upon the word "employed" as denoting the relationship of master and servant, between the f actory and the person employed in the manuf acture. 14
12. Again it is stated in paragraph No.7 that where the person was not employed and the employer had no control and supervision over the manner in which the work was to be done, the occupier and manager of the factory cannot be made liable to the accident in question. Similar view was taken in the case of M/s.Rohtas Industries Ltd., vs. Shri Ramlakhan Singh and others, (1978) 2 SCC 140, wherein it was considered as to whether the person involved in the accident was connected with the subject matter of manufacturing process or incidental to the manufacturing process.
13. This Court in the case of D.Kumarswamy (Major) and another stated supra, has held that where the accident had been caused apparently by unauthorized use of machinery and out of sheer negligence of the 15 workman, it cannot be held that the petitioner can be held for violation of the Act.
14. The Apex Court in the case of The Factory Manager, Cimmco Wagon Factory stated supra, has held that where it was not proved that the person involved in the accident was a workman, presumption under section 103 stood rebutted as no appointment letter was given to the person involved in the accident, neither paid salary nor wages to him and therefore the relationship of master and servant did not exist between the petitioners and the claimants in the said case and therefore it was held that the claimant was not entitled for the relief of reinstatement.
15. Similarly in the case on hand absolutely there is no material to show that the deceased was workman under the definition as provided under the Act nor it is made out that the deceased was 16 engaged in manufacturing process or incidental work to manufacturing process in the factory of the petitioners. Therefore it is a clear case of misuse of process of law by the respondent in initiating the proceedings against the petitioners. The submission of the learned High Court Government Pleader that the petitioners ought to have submitted information about the person who is responsible for the accident, which occurred in their premises cannot be accepted. Admittedly a criminal case is registered against the driver of the lorry for the offence punishable under section 304A of IPC.
16. It is seen from the record that when the respondent issued a show cause notice to the petitioners, the petitioners have properly replied the same, wherein it is stated in clear terms that they had only sold the goods and the purchaser had engaged M/s.Parmar Roadlines, in turn they 17 had sent lorry along with their driver and cleaner and therefore, it was within the knowledge of the complainant when he filed the complaint against the petitioners for the alleged offence under section 7A of the Act punishable under section 92 of the Act. Therefore the proceedings initiated against the petitioners being misuse of process of law are liable to be quashed. Accordingly, this Court proceed to pass the following:
ORDER The criminal petition filed under section 482 of Cr.P.C. is allowed.
The proceedings initiated against the petitioners in C.C.No.430/2018, pending on the file of Prl. Civil Judge and I Addl. JMFC, Ranebennur, are hereby quashed.
Sd/-
JUDGE Mrk/-