Madras High Court
Tamilnadu Fire Works And vs The Secretary To Government on 28 April, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :28.04.2014 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MS.JUSTICE V.M.VELUMANI Writ Appeal (MD)No.1167 of 2012 and M.P.(MD)Nos.1 of 2012 Tamilnadu Fire Works and Amorces Manufacturers Association, Rep.by its President S.S.Vijayakumar, "TANFAMA Centre", 442, Kamarajar Road, Sivakasi-626 123. ... Appellant/ Petitioner Vs. 1.The Secretary to Government, Department of Labour and Employment, Fort St.George, Chennai-600009. 2.The Director, Industrial Safety & Heath, (formerly the Chief Inspector of Factories), No.35, Indian Officers Association Building, T.V.K.High Road, Royapettai, Chennai-600 014. 3.The Joint Director, Industrial Safety & Health, (formerly Deputy Chief Inspector of Factories, Sivakasi and Virudhunagar Divisions, Virudhunagar. 4.The Deputy Director, Industrial Safety & Health, (formerly Inspector of Factories, Sivakasi. ... Respondents/ Respondents (Cause title of respondents 2 to 4 amended as per order, dated 10.04.2014, in MP(MD)No.1 of 2014) Prayer Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 29.10.20121, made in W.P.(MD)No.2692 of 2012. !For Appellant : Mr.S.Parthasarathy, Senior Counsel for Mr.M.Sekar ^For Respondents: Mr.B.Pugalendhi, Spl.Govt.Pleader. :JUDGMENT
V.RAMASUBRAMANIAN,J The Tamil Nadu Fire Works and Amorces Manufacturers Association, which is a Society, registered under the Societies Registration Act, 1860 and which espouses the cause of the manufacturers of Fireworks and Crackers, have come up with this writ appeal, challenging the dismissal of their writ petition by a learned Judge, seeking a writ of mandamus to forbear the respondents from violating the provisions of Section 40 of the Factories Act, 1948.
2.We have heard Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellant and Mr.B.Pugalendhi, learned Special Government Pleader appearing for the respondents.
3.The Explosives Act, 1884, was enacted with the object of providing a comprehensive law regulating the manufacture, keeping, sale, conveyance and importation of explosives throughout British India during the Colonial Days. Section 4(d) of the Explosives Act defines an Explosive to mean various substances used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect. The definition includes, 'fireworks'. Section 5(1) of the Explosives Act empowers the Central Government to make Rules to regulate or prohibit, except under or in accordance with the conditions of a licence, the manufacture, possession, use, sale, transport, import and export of explosives. Section 6-B(1) of the Explosives Act empowers the authority prescribed in the Rules, to grant or refuse an application for licence. Section 6-D of the Explosives Act enables the licensing authority to prescribe additional conditions in the licence itself. The conditions can be varied under Section 6-E and the licences themselves can be suspended or revoked under Section 6-E of the Explosives Act.
4.The expression 'fireworks' itself is defined in Rule 2(24) of the Explosives Rules, 2008, to mean any chemical compound or mechanically mixed preparation of an explosive or inflammable substance that is used for manufacturing fireworks.
5.The various types of fire works are classified into different categories such as (i) sound emitting fireworks, (ii) colour or light emitting fireworks, (iii) display fireworks and (iv) fireworks for export purpose, under Rule 4(3) of the Explosives Rules. Rule 7 of Explosives Rules makes it clear that no person shall manufacture, import, export, transport, possess for sale or use an explosive except as authorised or licensed under the Rules. Therefore, every manufacturer of fireworks is obliged, in terms of the Act and the Rules, to obtain licences.
6.But since the power to grant licences and the power to take action mostly vests with the authorities created by the Central Government and also since the number of accidents in fireworks industries kept increasing, the Government of Tamil Nadu became obliged to introduce the safety measures. As a matter of fact, there were 10 accidents, resulting in the death of 23 persons in the year 2010, 17 accidents, resulting in the death of 59 persons in the year 2011, 13 accidents, resulting in the death of 75 persons in the year 2012 and 9 accidents, resulting in the death of 23 persons in the first four months of the year 2013. Therefore, with a view to ensure the safety of the workers in the factories manufacturing fireworks, the Government of Tamil Nadu passed G.O.Ms.No.271, Industries Department, dated 23.12.2010, amending the First Schedule of the Factories Act, 1948. By this amendment, "explosives (including industrial explosives and detonators and fuses)" were included under Sl.No.17 in the List of Industries involving hazardous processes listed in the First Schedule to the Factories Act. The consequence of such inclusion was that the industries involved in hazardous processes came to be governed by a separate set of provisions, included under Section 41-A to 41-H, in Chapter IV-A of the Factories Act, 1948.
7.Aggrieved by the said amendment to the First Schedule to the Factories Act, 1948, the petitioner Association filed a writ petition in W.P.(MD)No.12979 of 2011 on the file of this Court. It is claimed by the appellant that the said writ petition is still pending.
8.After the amendment to the Act, the State Government also amended the Tamil Nadu Factories Rues, 1950 by G.O.Ms.No.70, Labour and Employment Department, dated 26.08.2011. The crux of the amendment was to include 17 more prescriptions in Paragraph 10 of the Schedule XXIV, in relation to Rule 95(1) of the Factories Rules that deals with 32 operations, including fireworks manufacturing.
9.The amendment to the Factories Rules was also challenged by the very same appellant Association in a writ petition in W.P.(MD)No.7156 of 2012 and the said writ petition was a dismissed by one of us (VRSJ) by an order dated, 03.04.2013.
10.Apart from challenging the amendment to the Factories Act, 1948, under W.P.No.12979 of 2011 and apart from challenging the amendment to the Tamil Nadu Factories Rules, 1950 under W.P.(MD)No.7156 of 2012, the appellant also came up with one more writ petition (could be many more, but we are informed of only one), seeking the issue of a writ of mandamus to forbear the respondents from violating the provisions of Section 40 of the Factories Act, 1948. This writ petition was dismissed by a learned Judge by an order, dated 29.10.2012, on the short ground that the Court cannot regulate the exercise of statutory powers of the Inspector of Factories, either under Section 40 or under Section 87-A of the Factories Act, 1948. Aggrieved by the said order, the Association of Manufacturers is on appeal.
11.The one and the only point canvassed by Mr.S.Parthasarathy, learned senior counsel for the appellant, is that the authorities, vested with the power of enforcement of the provisions of the Factories Act, 1948, do not apply uniform yardsticks and do not maintain consistency. While they invoke Section 40(2) in respect of some factories, they invoke the provisions of Section 87-A in respect of others. Therefore, the enforcement of the provisions of the Factories Act, have become arbitrary and whimsical, leaving the members of the Appellant Association at the mercy of the officers who inspect the factories at the relevant points of time. According to the learned senior counsel for the appellant, one of these two provisions is more draconian than the other and hence the indiscriminate invocation of one or the other provision, gives rise to a lot of uncertainty and instils a fear of psychosis. Therefore, the learned senior counsel contended that the respondents herein should be directed to evolve standards and apply the provisions of the Act, uniformly, to enable the industry to survive even while ensuring the safety and security.
12.In order to test the validity of the above contention, it is necessary to have a look at the two provisions around which the entire writ appeal revolves. Section 40, which is included in Chapter-IV that deals with "safety" reads as follows:
"40.Safety of buildings and machinery.-- (1)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 is dangerous to human life or safety, he may serve on the occupier or manager or both 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 a specified date.
(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."
13.Section 87-A is included in Chapter-IX that deals with "special provisions". It reads as follows:
"87-A. Power to prohibit employment on account of serious hazard.--
(1)Where it appears to the Inspector that conditions in a factory or part thereof are such that they may cause serious hazard by way of injury or death to the persons employed therein or to the general public in the vicinity, he may, by order in writing to the occupier of the factory, state the particulars in respect of which he considers the factory or part thereof to be the cause of such serious hazard and prohibit such occupier from employing any person in the factory or any part thereof other than the minimum number of persons necessary to attend to the minimum tasks till the hazard is removed. (2)Any order issued by the Inspector under sub-section (1) shall have effect for a period of three days until extended by the Chief Inspector by a subsequent order.
(3)Any person aggrieved by an order of the Inspector under sub-section (1), and the Chief Inspector under sub-section (2), shall have the right to appeal to the High Court.
(4)Any person whose employment has been affected by an order issued under sub-section (1) shall be entitled to wages and other benefits and it shall be the duty of the occupier to provide alternative employment to him wherever possible and in the manner prescribed.
(5)The provisions of sub-section (4) shall be without prejudice to the rights of the parties under the Industrial Disputes Act, 1947 (14 of 1947)."
14.A careful look at Section 40 in comparison with Section 87-A would disclose that there are fundamental differences between the two provisions. These differences are:
(i) Section 40(1) deals with a situation where it appears to the Inspector of Factories that any building or part of a building or any part of the ways, machinery or plant in a factory is in a condition that poses a danger to human life or safety. But, Section 87-A deals with cases where it appears to the Inspector of Factories that the conditions in a factory or part thereof, are likely to cause serious hazards by way of injury or death of the persons employed therein or to the general public in the vicinity. Therefore, Section 40 deals with the buildings or part of the buildings or part of the ways or machinery or plant. But, Section 87-A deals with the conditions that prevail in a factory and it has nothing to do with the buildings or plant and machinery.
(ii)Section 40 is primarily concerned with imminent danger to human life or safety. Section 87-A is concerned with serious hazard by way of injury or death to the persons employed in the factory. Therefore, to invoke Section 87- A, the conditions in the factory must be of such a nature that they may cause serious hazard by way of injury or death to the employees or to the general public in the vicinity. But, under Section 40, injury or death is not the criteria.
(iii)The procedure for invocation of Section 40 is different from the procedure prescribed under Section 87-A for its invocation. Under Section 40(2), the Inspector is required to serve a notice on the occupier or manager prohibiting the use of the building or machinery or plant or ways, till it is properly repaired or altered. This order is not appealable order, since it is intended to be only for temporary period of time to enable the owners to properly repair or alter the same. But, under Section 87-A, the Inspector may prohibit the occupier from employing any person. This will have effect only for a period of three days. There is also a provision for appeal to the High Court.
(iv)While under Section 40(2), an order that could be passed by the Inspector is to prohibit the use of the building until it is properly repaired or altered. The order that could be passed under Section 87-A(1) could only be for prohibiting the employment of any person other than the minimum number of persons necessary but attend to the minimum tasks till the hazard is removed. Therefore, though both the provisions are of temporary nature either till the building or plant or machinery is properly repaired or altered in terms of Section 40 or till the removal of hazard under Section 87-A, the action under Section 87-A is not total but only partial. To put it in simple terms, Section 40 envisages a temporary measure, which is total. But Section 87-A envisages a measure which is not only temporary but also only partial.
15.It is on account of this fundamental difference in the area of operation of these two provisions that the factories manufacturing fireworks come under different treatment at the hands of the respondents. In some cases, the defect noticed by the Inspector of Factories could be with reference to the buildings, plant or machinery and hence Section 40 may be invoked. In some cases, the conditions prevailing in the factory may be such as to compel the Inspector to invoke Section 87-A. Therefore, each individual case becomes distinct and different from the cases of others. In some cases, it is the buildings or plant and machinery that may pose a danger to human life and safety. In such cases, Section 40 alone could be invoked. In some cases, the conditions prevailing in the factory (not necessarily with respect of buildings, plant and machinery) may be such as to necessitate an action under Section 87-A. Therefore, the differential treatment allegedly meted out to the manufacturers by the respondents is something about which the Court cannot do anything.
16.The argument that all factories should come under equal treatment may hold good only if the conditions prevailing in all those factories are just the same and the violations committed by them are also just the same.
17.Moreover, in a writ petition under Article 226 of the Constitution, generalisation against statutory authorities cannot be made. There is nothing in the affidavit filed by the appellant in support of their writ petition, which indicates that two factories where situations were exactly identical came to be treated differently, with the invocation of Section 40(2) against one and invocation of Section 87-A against the other.
18.Therefore, the learned Judge is right in dismissing the writ petition seeking very vague and general directions. Hence, we find no ground to interfere with the order of the learned Judge. Therefore, the writ appeal is dismissed. No costs. Connected M.P.(MD)No.1 of 2012 is also dismissed.
To
1.The Secretary to Government, Department of Labour and Employment, Fort St.George, Chennai-600009.
2.The Director, Industrial Safety & Heath, (formerly the Chief Inspector of Factories), No.35, Indian Officers Association Building, T.V.K.High Road, Royapettai, Chennai-600 014.
3.The Joint Director, Industrial Safety & Health, (formerly Deputy Chief Inspector of Factories, Sivakasi and Virudhunagar Divisions, Virudhunagar.
4.The Deputy Director, Industrial Safety & Health, (formerly Inspector of Factories, Sivakasi.