Jharkhand High Court
Dr.J.J.Irani & Anr. vs State Of Jharkhand & Anr on 20 September, 2012
Author: H.C.Mishra
Bench: H.C.Mishra
Criminal Revision No.506 of 2005
Against the Judgment dated 16.5.2005 passed in Criminal Appeal No.182 of 1999
by the learned Sessions Judge, East Singhbhum, Jamshedpur.
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1. Dr. J. J. Irani
2. Sri P. N. Roy .... Petitioners
-Versus-
The State of Jharkhand & Anr. ..... Opposite Parties
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For the Petitioners : Mr. T. R. Bajaj, Sr. Advocate.
Mr. H. K. Shikarwar, Advocate.
For the State : Mr .D. K. Chakravorty, A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE H.C.MISHRA
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C.A.V On:- 20/9/2012 Pronounced On:- 01/10/2012
H.C.Mishra, J. Heard learned senior counsel for the petitioners and the
learned counsel for the State.
2. This revision is directed against the Judgment dated 16th May
2005, passed in Criminal Appeal No. 182 of 1999 by the learned
Sessions Judge, East Singhbhum, Jamshedpur, whereby, the appeal
filed against the Judgment of conviction and Order of sentence dated
4.10.1999passed in C/2 Case No. 663 of 1991 / T.R. No. 553A of 1999 by Sri B. C. Jha, learned Judicial Magistrate, 1st class, East Singhbhum, Jamshedpur, convicting and sentencing the petitioners for the offence under Section 92 of the Factories Act, 1948 (hereinafter referred to as the 'Act'), has been dismissed with modification in the sentence by the learned Appellate Court below. It may be stated that the Trial Court below had convicted the petitioners for the offence under Section 92 of the Act and upon hearing on the point of sentence, sentenced them to undergo simple imprisonment for two years each and to pay the fine of Rupees One Lakh each and in the event of default in making the payment of fine, the petitioners were directed to undergo the enhanced imprisonment for six months. The Appellate Court below, while confirming the judgment of conviction passed by the trial Court, modified the sentence to the extent that substantive sentence of two years imprisonment was set aside, but the fine of Rupees One Lakh each was maintained and it was directed that the fine, if realized, shall be paid to the widow of the deceased workman.
23. The petitioner No.1, Dr. J. J. Irani was the Occupier and the petitioner No.2, Sri P. N. Roy was the Manager of the factory, namely, TISCO Ltd., situated in Jamshedpur. On 14.3.1991 at about 12 Noon, a fatal accident took place in S.M.S-3 inside the TISCO works, when some scrap materials suddenly fell down from a railway bogie, commonly known as 'Gandola', in course of movement on the rails and one Shunting Jamadar namely, Sagar Sinku was crushed under the weight of the scrap materials, who was standing by the side of the railway track and was giving signal to the loco Driver. The said workman died at the spot. The Management of the TISCO informed the Inspector of Factories, who reached at the site of the accident at about 2 P.M. and conducted his enquiries. After conducting the due enquiry under the Provisions of the Act, a complaint petition was filed in the Court of the Chief Judicial Magistrate, Jamshedpur, which was registered as C/2 No. 663 of 1991.
4. The complaint petition shows that the Inspector of Factories, upon enquiry, found that the work and process in the factory were carried out in the most unsafe manner, resulting in the death of a Shunting Jamadar Sagar Sinku, and the Occupier and Manager of the factory contravened the provisions of Rule 55A (2) and (3) of the Bihar Factories Rules, 1950 and made themselves liable for prosecution for the offence under Section 92 of the Factories Act, 1948.
5. The detailed statement forming part of the complaint petition, shows that following unsafe acts and conditions prevailing in the factory were found to be the basis for filing the complaint against the petitioners:-
"4. That from the findings of the enquiry as appearing on page No. 4 and 5 of the enquiry report it will appear that the accident resulted because the work of handling different materials by loco was being performed in the most unsafe manner in the following respects :-
(a) Before placing the ingot embedded with scrap materials on the open bogie called gandola the scrap was not removed from the ingot with the result the material was resting on the open bogie in most unstable manner and it was allowed to be moved in most unsafe conditions.3
(b) Before allowing the loco coupled with gandola to move, no proper arrangement was made to ensure that the railway track was free from all kinds of obstructions, with the result, the wheel of gandola jumped over a huge scrap material which was lying on the railway track which provided tremendous jerk on all the materials placed on the open bogie resulting into its fall on the body of Sri Sinku.
(c) Before allowing the material to be moved on open bogie neither any side support was provided nor it was fastened properly by any means to ensure that these loosely placed materials on the open gandola floor were properly secured in course of its movement by loco engine.
(d) The loco was allowed to be driven by a shunting Jamadar grade "B" and not by a regular loco driver.
5. That due to the aforesaid unsafe acts and conditions prevailing in course of the handling of materials in the pit side of S.M.S-3 a dead weight of about 8 MT slipped out from the open railway bogie and fell on Sri Sagar Sinku, the shunting Jamadar who was standing by the side of moving railway bogie and giving signal to the loco driver of loco No.73 and died instantaneously on the spot."
6. It appears from the record that in course of trial, six witnesses were examined by the prosecution, including the Inspector of Factories, namely, Shashi Bhushan Jha, the complainant, who was examined as P.W.1. The other P.Ws, are the employees of the TISCO Ltd., who at the relevant time, were working at the site. The Courts below came to the conclusion that before allowing the scrap materials to be moved in an open bogie i.e., gondola, neither any side support was provided nor it was fastened properly to ensure that the loosely placed materials on the open gondola were properly secured in course of its movement by the loco engine. It was also found from the evidence of P.W.1, the Inspector of Factories, that during the inspection, he found that the materials i.e., the scraps were placed on the open gandola and there was no provision for any side support or any safety belt to ensure that the loosely placed materials should not fall in course of its movement by loco engine. The witness has also stated, as taken note of by the 4 Appellate Court below, that the materials were not placed in the proper way on the gandola and that on the railway track, upon which, the gandola had to be taken loaded with scrap, several materials were lying and those materials were making obstruction in the free movement of the loco engine. This fact was also supported from the evidence of P.W.2, S. K. Marik, a Foreman, in SMS-3 of TISCO, who had stated that some scraps or jamb were lying on the railway track and this witness had also asked the Loco Driver and the Shunting Jamadar i.e., the deceased, to stop the movement of gandola, but by that time, the gandola jumped over the scraps and huge iron materials fell on Sagar Sinku, who died at the spot. P.W.5, Soma Barua, who was driving the loco, had stated that in course of movement of the gondola, the bogie jumped over the obstacle lying on the railway track and the heavy iron materials loaded on the gondola fell on Sagar Sinku, causing his instantaneous death.
7. The evidence on record, as discussed in the impugned Judgments, goes to show that the deceased workman Sagar Sinku was there to give the signal to the Loco Driver, on whose signal, the Loco Driver was to move the loco attached with the gandolas. Thus, it is apparent that Sagar Sinku was not expected to give the signal for moving the loco, if there were any scrap materials on the railway track. However, the Courts below found that Rules 55A (2) and (3) were violated by the Occupier and the Manager of the factory and they failed to assure the safety of the workers while they were at work in the factory and thereby, they had violated the provisions of section 7A of the Act. On these findings, the petitioners were found guilty for the offence under section 92 of the Act and were convicted and sentenced accordingly.
8. Learned senior counsel for the petitioners has submitted that the impugned Judgments passed by the Courts below are absolutely illegal and bad in the eyes of law, inasmuch as, the Courts below have failed to take into consideration that the accident had taken place solely due to the negligence on the part of the workman concerned, who unfortunately died in the said accident itself. It was his responsibility to see that the loco was not signaled to move, if there were any obstacles on the railway track, but in spite of that, he signaled the loco to move, 5 due to which, the wheel of gandola jumped over the huge scrap material lying on the railway track which provided tremendous jerk and the materials placed on the gandola fell on the body of Sagar Sinku, who died at the spot. Learned senior counsel submitted that no instruction or specific direction was ever given regarding the movement of the gandola by the Inspector of Factories, rather there is allegation of violation of only the general rules. It has been pointed out by the learned senior counsel that this fact was admitted by the Inspector of Factories, P.W. 1, Sashi Bhushan Jha in his cross-examination, admitting that no specific instruction regarding gandola was given. Learned counsel has also submitted that the allegation that the loco was being driven by a Shunting Jamadar Gr.-B, and not by a regular Loco Driver, could not be proved, as the Loco Driver, who was examined as P.W.5, has stated that he was driving the loco for the last two years. The attention of this Court has also been drawn towards Exhibit-11, which shows that the workman who was driving the loco, was duly trained for driving the same and he had passed the driving test and was driving the loco for the last 3-4 years. It may be pointed out that exhibit-11 is the statement of one S. N. Singh, recorded by the inspector of factories during enquiry made by him, and the said S. N. Singh was also examined as P.W.4, who was also a Foreman in TISCO.
9. Learned senior counsel for the petitioners, accordingly, submitted that no offence can be said to be made out against the petitioners under Section 92 of the Factories Act and accordingly, the impugned Judgments passed by the Courts below cannot be sustained in the eyes of law.
10. Learned counsel for the State / opposite parties, on the other hand, has submitted that there is no illegality in the impugned Judgments passed by the Courts below, worth interference in the revisional jurisdiction, as on the basis of the evidence brought on record, it was found that there was negligence on the part of the Occupier and the Manager of the factory and they violated Rules 55A (2) and (3) of the Bihar Factory Rules and accordingly, the offence is clearly made out against the petitioners. It has also been submitted by the learned counsel that nothing was brought on record to show, 6 except the statement as contained in Exhibit-11, that the workman who was driving the loco, was duly authorized to drive the loco. With these submissions, leaned counsel for the opposite parties has submitted that there is no illegality and / or irregularity in the impugned Judgments, worth interference in the revisional jurisdiction.
11. After having heard learned counsels for both the sides and upon going through the record, I find that both the Courts below have heavily embarked upon the fact that there was no side-support on the gondola, nor it was ensured that the loosely placed materials on the open gandola were properly secured in course of movement by the loco engine. The question which arises for consideration is whether this negligence was on the part of the workman concerned, so as to bring the offence under Section 97 of the Act, or it was purely a case of violation of Rules 55A (2) and (3) of the Bihar Factory Rules, 1950, by the Occupier and the Manager of the factory, making them liable for the offence under Section 92 of the Act.
12. Rule 55A (2) & (3) of the Bihar Factories Rules, 1950, reads as follows :-
"55-A. General safety of buildings, structures, plants machinery, etc- (1) ---------------
(2) No process or work shall be carried on in any factory and no person shall be allowed to work on any process or any machinery, plant or equipment or in any part of a factory or in any other work in such manner as may, or is likely to cause any accident or any bodily injury.
(3) No materials, articles or equipments shall be kept stacked or stored in such manner as may or is likely to cause any accident or any bodily injury."
Thus, this rule clearly shows that these are the provisions for general safety of buildings, structures, plants machinery, etc., which are to be followed in every factory.
13. Rules 107 to 122 the Bihar Factories Rules, 1950, deal specifically with the railways in the precincts of a factory which are not subject to the Indian Railways Act, 1890. There is no charge against the petitioners of violation of any of these rules, which specifically deal with 7 the railways in the precincts of a factory in such cases. Rule 118 makes provision for Shunting Jamadar and it reads as follows :-
"118. The shunting jamadar.- (1) Every train in motion in a factory shall be in charge of a properly trained jamadar.
(2) Before authorizing the driver to proceed the shunting jamadar shall satisfy himself that no person is under or between the vehicles or on the track in front of the train.
He shall not call on the driver while any person is going off the track but only when all persons have gone off it." Though not in specific words, but this rule clearly casts a general duty upon the Shunting Jamadar not to signal the driver to move the laco unless the railway track is clear. There appears to be no specific provision with respect to 'Gandola', though Rule 112 deals with 'Wagons'. However, admittedly, there is no charge upon the petitioners for any violation of these rules and it is an admitted position by the Inspector of Factories, who was examined as P.W.1, that no specific direction was ever issued with respect to the movement of the 'gandola' in the factory.
14. Sections 92 and 97 of the Factories Act, 1948 read as follows:-
92. General penalty for offences - Save as is otherwise expressly provided in this Act and subject to the provisions of Section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, 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 two years or with fine which may extend to one lakh rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued.
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97. Offences by workers.- (1) Subject to the provisions of section 111, if any worker employed in a factory contravenes any provision of this Act or any rules or orders made thereunder, 8 imposing any duty or liability on workers, he shall be punishable with fine which may extend to five hundred rupees.
(2) Where a worker is convicted of an offence punishable under sub-section (1) the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that convention, unless it is proved that he failed to take all reasonable measures for its prevention.
15. Thus, in view of the aforementioned provisions under the Act and the Rules made thereunder, it is to be examined whether the Occupier and the Manager of the factory shall be liable for all the latches and negligence, committed in the factory, or if the latches and negligence were purely on the part of the workman concerned, nothing to do with the Occupier and the Manager of the factory who are not expected to be present at the site of the accident at all the times, they are entitled to some protection under the Act. A plain reading of section 97 of the Act quoted above, leaves no iota of doubt that when a workman could be convicted for the offence punishable under the Act, the Occupier or the Manager of the factory shall be deemed to be not guilty of an offence with respect to the said contravention, unless it is proved that he failed to take all reasonable measures for its prevention.
16. In the present case, if the construction, shape and size of the gandola is such that it can contain the scraps within itself and there is no chance or scope of spilling over the scraps if the gandola is allowed to move freely on the rails, in that case, in my considered view, the Occupier and the Manager of the factory cannot be held responsible for the fact that the gandola was not properly loaded by the workmen, or it was over loaded, or that the workman who was to give the signal to the Loco Driver for moving ahead only after ensuring that the railway track was free from all obstacles, negligently gave the signal even though there were obstacles and obstructions on the railway track, due to which, the wheel of Gandola jumped over the obstacles lying on the railway track providing tremendous jerk and the materials placed on the gandola fell on the body of the workman, who died at the spot. Unfortunately in this case, the workman who was negligent in giving the signal for movement of the loco, even though there was obstruction on the railway track, himself died in the accident. In the given case, the 9 workman himself was liable under Section 97 of the Act and accordingly, there is no question of any liability of the Occupier and the Manager of the factory, unless it is proved that they failed to take all reasonable measures for the prevention of the accident, which in the present case has not been proved.
17. In the case in hand, both the Courts below have overlooked the provisions of Section 97 of the Act and Rule 118 of the Bihar Factories Rules, 1950 and have not made any discussion about the same in their Judgments. The record clearly shows that the gandola was over loaded, or not properly loaded, and the scraps had fallen down on the railway track. The record also shows that it was the workman Sagar Sinku, whose duty was to give the signal to the Loco Driver to move ahead only when the rail was free from all obstacles, but he gave the signal to the Loco Driver for moving ahead, even though the railway track was not free from obstacles, and due to his negligence, the wheel of gandola jumped over the obstacles lying on the railway track providing tremendous jerk and the materials placed on the gandola fell on his body, causing his death. In my considered view, for such an accident, the Occupier and the Manager could not have been held guilty for the offence under Section 92 of the Factories Act, in absence of anything to show that gandola, even if properly loaded and properly allowed to move on the free rails was unsafe and the materials properly loaded used to spill off the gondola even during free movement of the gondola on the rails, and they had failed to take measures for prevention of such usual spilling of the properly loaded materials.
18. As regards the charge that the loco was allowed to be driven by a Shunting Jamadar Gr. "B" and not by a regular loco driver, I find force in the submission of the learned senior counsel for the petitioners that this charge could not be proved, as the loco driver, who was examined as P.W.5, had stated that he was driving the loco for the last two years and Exhibit-11, shows that the said workman was duly trained for driving the loco, he had passed the driving test and was driving the loco for the last 3-4 years. This apart, I find from the record that the prosecution has examined the loco driver, who was driving the Loco at the time of the accident, as P.W. 5 Soma Barua. This witness has described himself as Loco Driver in TISCO and not as Shunting 10 Jamadar Gr. "B". It has not been taken in his evidence, though he has been examined by the prosecution itself, that he was actually a shunting Jamadar Gr. "B" on the date of accident. As such, the prosecution has miserably failed to establish the charge that the loco was allowed to be driven by a shunting Jamadar Gr. "B" and not by a regular loco driver. Rather this is a case where the prosecution has brought the evidence on record against its own case by examining the Loco Driver.
19. For the foregoing reasons, I am of the considered opinion that the prosecution has failed to establish the charge against the petitioners and as such, impugned Judgments passed by both the Courts below cannot be sustained in the eyes of law, rather it is a fit case, in which, the petitioners ought to have been acquitted of the charges.
20. Accordingly, the Judgment of conviction and Order of sentence dated 4.10.1999 passed by Sri B. C. Jha, learned Judicial Magistrate, 1st class, East Singhbhum, Jamshedpur, in C/2 No. 663 of 1991 / T.R. No.553-A of 1999, as also the Judgment dated 16.5.2005 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur, in Cr. Appeal No. 182 of 1999 are, hereby, set aside. Consequently, the petitioners are acquitted of the charges.
21. It appears from the order dated 29.6.2005 passed by this Court that the amount of fine imposed upon the petitioners had been deposited by them before the Court below which was directed to be kept in a separate account under the care of the Registrar of the Civil Courts. It goes without saying that the money deposited in the said account shall be refunded back to the petitioners forthwith.
22. This revision application is accordingly, allowed. Let the Lower Court Records be sent back forthwith.
(H.C.Mishra, J.) Jharkhand High Court, Ranchi Dated : 01/10/2012 N.A.F.R/ BS/