Jharkhand High Court
A.P.Arya & Anr vs State Of Jharkhand & Anr on 11 July, 2011
Equivalent citations: 2011 (4) AIR JHAR R 385, (2011) 131 FACLR 878 (2011) 3 JCR 471 (JHA), (2011) 3 JCR 471 (JHA)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P.No.1409 of 2007
1. A.P.Arya.
2. V.N.Sharma ... ... ... ...Petitioner
-Versus-
1. The State of Jharkhand.
2. Mr. Turan Horo. ... ... ... ...Opp. Parties
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CORAM: THE HON'BLE MR. JUSTICE D.K.SINHA
For the Petitioner: Mr.Rana Pratap Singh, Sr. Advocate.
Mr. Vijay Pratap Singh, Sr. Advocate.
For the State: A.P.P.
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C.A.V. on 28.02.2011 : Pronounced on 11.07.2011
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D.K.Sinha,J. The criminal law was set in motion on the written complaint filed
by the complainant-Deputy Chief Inspector of Factory, Jamshedpur alleging
that the factory premises of M/s H.V.T.L. was intercepted by a Team headed in
the leadership of the then Inspector of Factories, Jamshedpur Circle No.1 and
during course of inspection, it was found that the provisions of Sections
61,45(4),47 & 46 of the Factories Act, 1948 read with Rule 79,87,95
(schedule-8 sub-rule 5) & 65 Jharkhand /Bihar Factory Rules were violated,
which attracted punishment under Section 92 of the Factories Act.
2. By enclosing a separate sheet with the complaint petition
following allegations were made in support of the prosecution;-
(i) Notice of period of work for adults on contract
labour was not displayed within the factory
premises. The relevant information was not
provided in the prescribed form.
(ii) Compliance of Rule 87 and 88 of the
Bihar/Jharkhand Factory Rules, 1950 were wanting
since the workmen were not provided with leave
book and that the leave with wages registers was
also not provided by the Manager (Industrial
Guideline) on demand. It was further detected that
the inspection of "Shot Blasting Plant" was not
being made by a competent person on weekly
basis and the concerned register was also not
maintained which attracted violation of Rule 95,
(schedule-8 sub-rule 5) & 65 Jharkhand/Bihar
Factory Rules, 1950. It was detected that more than
1,000 workmen were working in M/s HVTL
(Factory) but there was no Ambulance Room in the
Factory Premises which was mandatory though it
was replied by the Management that the service of
Ambulance Room maintained by the TATA
2
MOTORS was availed by this Factory. It was
alleged that no exemption letter was obtained from
the Chief Inspector of Factories, Jharkhand in this
regard which attracted violation of Section 45(4) of
the Factories Act read with Rule 65 of the Rule,
1950. No Rest Room or Shelter Room was found
for the contract labourers which attracted violation
of Section 47 of the Factories Act, 1947 and
similarly there was only lunch room in place of a
canteen in the factory premises. Absence of
canteen in the factory premises attracted violation
of Section 46 of the Factories Act.
3. To sum up, the complainant alleged that the occupier Shri Atam
Prakash Arya and the Manager Shri V.N.Sharma of the factory had violated
the provisions of law and rules referred to here-in-before which attracted
punishment under Section 92 of the Factory Act, 1948.
4. Annexure of the Complaint Petition filed by the O.P.No.2
depicted that the then Inspector of Factories in terms of letter dated
14.06.2007had sought for departmental sanction for initiating prosecution and the Government of Jharkhand in terms of its letter No.2/FA-50-21/2007 L & E-1287 dated 25.07.2007,accordingly, administrative approval to the Opposite Party No.2 was given for lodging complaint against the petitioners, who were the occupier and the Manager of M/s H.V.T.L., TELCO, Jamshedpur and the complaint was lodged which was registered as C/2 Case No.2970 of 2007.
5. Learned Sr. Counsel Mr. Rana Pratap Singh appearing for the petitioners submitted that a copy of the enquiry report of the inspection which was held on 31.05.2007 was sent by the Factory Inspector to the Management of M/s HVTL on 01.06.2007 itself calling for the compliance report latest by 11.06.2007 and the Factory Manager i.e. the petitioner No.2 in compliance to such direction furnished point wise clarification to the deficiencies as pointed out in the Enquiry Report. Every short coming indicated in the enquiry report after inspection, which was held on 31.05.2007, was fully explained and it was stated that the contractors used to maintain all the records and that the notice for the working hours of the labourers used to be displayed on the Notice Board at the entrance of the factory as also in the office. The Management explained by requesting the Inspector of Factories to fix a suitable date and time enabling the management to produce all the records related to contract 3 workers and compliance report of the shortcomings but the date and time was never fixed. As regards annual leave with wages, the Management explained that all the employees were given leave account and full wages as per certified work standing order of the company. The Management of the Company was permitted to keep records of leave of employees in computerized form and the balance of leave used to be shown in the pay slips of the employees as per exemption order issued by the Chief Inspector of Factories, Jharkhand dated 22.03.2005. In so far as "Shot Blasting" was concerned, the moment it was brought to the notice of the Management that there was leakage in "Shot Blasting" m/c No.3, it was immediately rectified and the Factory Management issued directives for its weekly inspection so that there would not be any leakage in future. Inspector of Factories was informed under the said letter that weekly inspection report of "Shot Blasting" would be maintained in a register and that the workers working at "Shot Blasting" were provided with personal protective equipments. Under the common service agreement with M/ s TATA MOTORS it was agreed that H.V.T.L. would avail the facility of Ambulance Room maintained by TATA MOTORS which was situated within a radius of ½ k.ms., therefore, there was no alleged violation. With regard to Rest Room/Shelter Room in the Factory, the Inspector of Factories was apprized that the dining hall/lunch room was used as Rest Room/Shelter Room by the employees and no worker had ever complained about such facility and that in the Tea Kiosk/HVTL dining hall, the employees used to be served with Tea/snacks lunch and dinner at highly subsidized rate and therefore, there was no violation.
6. Compliance report of the Management of the Factory dated 11.06.2007 was duly received by the Inspector of Factories but no further comments on any short coming was pointed out by him and the Management had reason to presume that the factory inspector having been received the compliance report and satisfied with the explanation made did not issue further show-cause to the Management, pointing out any violation of the Act/Rule. The Inspector of Factories neither communicated nor accorded any opportunity to the Management/Petitioners of being heard nor it was communicated to them that the compliance report was rejected having been found not satisfactory 4 ,yet, the complaint was lodged without giving any opportunity to the petitioners of being heard in utter violation of natural justice.
7. The Management of the Factory was under bona fide belief with the explanation made by them that it was accepted, in the circumstance, the learned Sr. Counsel submitted that it was apparent and clear that on non est grounds the compliance report of the Management was rejected without assigning any reason. Even no reason was assigned in the complaint for rejecting the compliance report of the Management which indicated that the Inspector of Factories, without application of mind and disclosing the reasons sought for sanction for prosecution of the petitioners and thereby violated the principles of natural justice. The letter written by the Inspector of Factories seeking sanction for prosecution of the petitioners also did neither contain the entire facts nor did disclose the reasons as to why not the explanation made by the Management of the Factory by way of compliance could be accepted.
8. On the point of law, learned Sr. Counsel submitted that the administrative sanction for initiation of criminal prosecution of the petitioner was signed by the Officer of the Rank of Deputy Secretary, Government of Jharkhand. It would be relevant to mention that the inspector of the factories under his letter dated 14.06.2007 had sought for sanction from the Chief Inspector of Factories, Jharkhand, the latter being the competent authority to grant administrative sanction, instead thereof the Chief Inspector of Factories Jharkhand sent official letter to the Deputy Secretary, Government of Jharkhand by furnishing all relevant papers for according sanction for the petitioners. There was no material before the Deputy Secretary to arrive at the conclusion having been satisfied that the petitioners had prima facie contravened/violated the provisions of Act/Rules so as to attract their punishment under Section 92 of the Act. The sanction order must indicate relevant materials and facts indicating the application of mind while granting it, but the sanction, in the instant case, appeared to have been issued for the prosecution of the petitioners without application of mind and that too, without consideration of the relevant facts, therefore, granting of sanction by the Deputy Secretary was a nullity, who was not a competent authority under the Act to accord sanction and therefore, on the basis of erroneous sanction 5 issued by a person who was not authorized to accord it, the order taking cognizance was illegal, uncalled for and not maintainable.
9. Learned Sr. Counsel further explained that the letter as contained in memo No.223 dated 14.06.2007 purported to be issued by the Inspector of Factories was never received by the petitioners as such no compliance report. As a matter fact, the petitioners were under impression that the explanation as contained in their letter dated 11.06.2007 was accepted by the Inspector of Factories. However, by the letter No.241 dated 19.06.2007 the Inspector of Factories, Jamshedpur directed the petitioners to submit details of environment of "Shot Blasting" Area and the steps taken to ensure health, safety and the welfare of the workers. The Management of the Company in terms of letter dated 09.07.2007 informed the Inspector of Factories that his letter dated 19.06.2007 was received by the Management on 03.07.2007 and that the Maintenance Department of the Company was monitoring the conditions of the "Shot Blasting" machines periodically and in this connection the Management engaged M/s S.G.S. India Pvt. Ltd. on annual contract basis for monitoring of work Zone Environment and that the finding of M/s S.G.S. India was in affirmative. It was further explained that the Management was bringing new Technology for "Shot Blasting" and that new machines were under the process of arrival within a few months, which would phase out existing "Shot Blasting" machines and would certainly improve safely of the workers and the working environment significantly.
10. The learned counsel asserted that the impugned order by which the cognizance of the offence was taken by the C.J.M. was recorded mechanically on a printed format by simply putting the names of the accused persons and the Sections in which the cognizance was taken without application of his judicial mind. In several judicial pronouncements of the Hon'ble Courts taking cognizance of the offence without application of judicial mind and in mechanical exercise of power on a printed format have been deprecated and were set aside on the ground of non-application of mind. The petitioners were deprived of precautions established by law which amounted to violation of natural justice and thereby they were prejudicially affected. 6
11. In the counter-affidavit filed on behalf of the Opposite Party it was stated in terms of paragraph No.12 that the administrative sanction used to be accorded by the Department of Labour, Employment and Training, Government of Jharkhand on the recommendation of Chief Inspector of Factories, Jharkhand and in the relevant case the Dy. Secretary on behalf of the Government accorded sanction for the prosecution of the petitioners. It further contended admitting that the deficiencies pointed out in the reply dated 11.6.2007 was communicated to the petitioners with its copy to the Chief Inspector of Factories, Jharkhand. The counter-affidavit contained that the Manager of the Factory had submitted para-wise reply/clarifications to the deficiencies pointed out in the Enquiry Report, but it were not found satisfactory by the Inspector of Factories which was communicated to the petitioners. The Chief Judicial Magistrate took cognizance of the offence after applying his judicial mind and the petitioners were prosecuted for the offences committed by them under Section 92 of the Factories Act.
12. Having regard to the facts and circumstances of the case, I find that the petitioners have raised three points for consideration by invoking inherent jurisdiction of this Court viz. the deficiencies pointed out by the factory inspector after inspection of M/s H.V. Transmission Ltd., Jamshedpur were complied and the compliance report was sent within time as framed but thereafter no communication was made to them from the prosecution side. The second point which has been raised is that the Secretary to the Government was not a competent officer under law to accord sanction and that though the factory premises was visited by the officer of the rank of Factory Inspector of the respective area but the complaint was lodged by the different person, an officer of the rank of Deputy Chief Factory Inspector, Jamshedpur for the reasons best known to the prosecution. The third point was attracted in course of argument was that the C.J.M. took cognizance of the offence in this case without application of judicial mind and in mechanical exercise of power by filling in the blank format by putting the proposed Section of the offence and the names of the petitioner and then transferred the record to another court and for that the petitioners were highly prejudiced.
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13. As regards the first point, I find that it relates to alleged facts based upon documents and other evidence as to whether the contravention of provisions of Acts/Rules communicated to the occupier and the Manager by the Factory Inspector and the deficiencies pointed out therein were complied in letters and spirit or not. This question was categorically answered by the learned Counsel that all the deficiencies pointed out by the Factory Inspector were complied and the compliance report was also submitted but the counter- affidavit filed on behalf of the State indicated that it was not to their subjective satisfaction hence the criminal case was lodged obtaining sanction from the Government. The next point which has been raised, I find that the learned Counsel appearing on behalf of the petitioner failed to show that the Deputy Chief Inspector of the Factory was not a competent person to institute the case though the factory premises of the petitioner was visited by the Inspector of the Factories of the respective jurisdiction. Since no contrary law/ Rule has been cited, I have reason to hold that the Deputy Chief Inspector of Factories was not precluded under law from filing complaint against the occupier and the Manager of the Factory.
14. Section 105 of the Factories Act, 1948 deals with cognizance of the offence which speaks;-
(i) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an Inspector.
(ii) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try any offence punishable under this Act.
15. Section 106 deals with limitation of prosecution under such provisions three months' limitation has been prescribed for taking cognizance of any offence punishable under this Act from the date of alleged commission of the offence, within the knowledge of the Inspector of the Factories, provided, it was explained, where the offence consist of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence was alleged to have been committed. For more clarification, the starting point of the period of limitation would be the date of knowledge of the commission of the offence and I find from the perusal of the materials on the record that the complaint was filed within the period of limitation by an officer of 8 the rank of Deputy Chief Inspector of Factories, who has not been precluded under law from filing the complaint. Similarly, the sanction for launching prosecution against the occupier and the Manager of M/s H.V. Transmissions Ltd. was accorded by the Deputy Secretary of the Government of Jharkhand, Department of Labour, Employment and Training on the recommendation of the Chief Inspector of the Factories, Jharkhand, Ranchi vide recommendation letter No.743 dated 21.06.2007 and the Counsels appearing for the petitioner failed to show that the Deputy Secretary of the Government was not a competent officer under the Act for according sanction for the prosecution of the petitioners.
16. As regards order taking cognizance of the offence by the C.J.M., Jamshedpur, with reference to the impugned order dated 24.08.2007, I find substance that the blank format was filled in by putting the names of the petitioners and the offence under Section 92 of the Factories Act in his pen and thereafter the record was transferred by putting the word 'cognizance' at the blank space to the Court of Shri Uttam Anand, Judicial Magistrate, 1 st Class, Jamshedpur for disposal by fixing the next date 24.09.2007. The cognizance order manifestly speaks that the learned C.J.M., Jamshedpur before taking the cognizance had not applied his judicial mind and he filled in the blanks in the format in mechanical exercise without wisdom and put his initial in the bottom in C/2 Case No.2970 of 2007 on 24.08.2007 which cannot be sustained under law.
17. The learned Apex Court in M/s Pepsi Food Limited and Another Vrs. Special Judicial Magistrate and others, reported in 1998 Supreme Court 128 in the similar situation propounded as follows;-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
18. I find that the learned C.J.M., Jamshedpur did not carefully scrutinize the evidence brought on the record before application of his judicial 9 mind and put the word 'cognizance' at the blank space purely in mechanical manner which cannot be sustained under law and for this reason alone the order impugned by which the cognizance of the offence taken under Section 92 of the Factories Act against the petitioners in C/2 Case No.2970 of 2007 is liable to be set aside and accordingly the same is quashed and this petition is allowed.
[D.K.Sinha,J.] P.K.S./A.F.R. 1