Madras High Court
Toshihiko Sano vs Page No.1 Of 28 on 24 February, 2023
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.Nos.20330 of 2014 and batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.11.2022
PRONOUNCED ON : 24.02.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.Nos.20330 to 20341 and 21097 to 21112 of 2014
and
Crl.M.P.Nos.1(28 Nos.) of 2014 in
Crl.O.P.Nos.20330 to 20341 and 21097 to 21112 of 2014
Toshihiko Sano, M/A 57 Years,
S/o.Mitsuharu Sano,
Occupier,
Renault Nissan Automotive India Private Limited,
Plot No.1, Sipcot Industrial Park,
Oragadam, Mathur Post,
Sriperumbudhur Taluk,
Kancheepuram Dist-602 106. ... Petitioner in
Crl.O.P.Nos.20330 to 20341 of 2014
Takei Koji, M/A 55 Years,
S/o.Mr.Takei Tadaaki,
Manager,
Renault Nissan Automotive India Private Limited,
Plot No.1, Sipcot Industrial Park,
Oragadam, Mathur Post,
Sriperumbudhur Taluk,
Kancheepuram Dist-602 106. ... Petitioner in
Crl.O.P.Nos.21097 to 21112 of 2014
Versus
Page No.1 of 28
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.20330 of 2014 and batch
The Tamil Nadu State represented by,
Deputy Director,
Industrial Safety and Health,
First Circle, Kancheepuram,
130/1, Gandhi Road,
Sriperumbudur – 602 105. ... Respondent in all petitions
COMMON PRAYER: Criminal Original Petitions are filed under Section
482 of the Code of Criminal Procedure, to call for the records in
C.C.Nos.239 to 250 and 282 to 297 of 2013 respectively on the file of the
Learned Chief Judicial Magistrate, Chengalpet and quash the same as
against the petitioners.
For Petitioner
in all petitions : Mr.N.R.Elango, Senior Counsel for
Mr.S.Manuraj
For Respondent
in all petitions : Mr.L.Baskaran,
Government Advocate (Crl. Side)
*****
COMMON ORDER
All these Criminal Original Petitions filed to quash the proceedings in C.C.Nos.239 to 250 and 282 to 297 of 2013, pending on the file of the Chief Judicial Magistrate Court, Chengalpet (trial Court).
2.Since all the cases in C.C.Nos.239 to 250 and 282 to 297 of 2013 are arising out of common show cause notice, dated 11.03.2013 in No.(B)1186/2013, this Court disposes all these Criminal Original Page No.2 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch Petitions by way of common order.
3.The respondent viz., the Deputy Director, Industrial Safety and Health, Sriperumbudur conducted inspection on M/s.Renault Nissam Automotive India Private Limited situated at plot No.1, Sipcot Industrial Park, Oragadam, Mattur Post, Sriperumbudur Taluk, Kancheepuram (For convenience and brevity hereinafter referred to as 'RNAIPL') on 27.02.2013 and prepared inspection report, dated 11.03.2013 in No.KM/8453/2013, wherein 38 violations under the Factories Act, 1948 and the Tamil Nadu Factories Rules, 1950 have been noted.
4.The background of the cases in C.C.Nos.239 to 250 and 282 to 297 of 2013 is that RNAIPL is a registered factory under Section 2(m)(i) of the Factories Act, 1948. RNAIPL is a Joint Venture of Renault group BV in Netherlands and Nissan Motor Company Limited, Japan formed under an Memorandum of Understanding with Government of Tamil Nadu. RNAIPL is engaged in the manufacture of Renault and Nissan branded passengers cars. The plant is located at SIPCOT Industrial Estate, Oragadam, Sriperumbudur, Kancheepuram in 640 acres of land. Page No.3 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch The factory has started its production in the year 2010 and the factory has all facilities including canteen, medical centre, creche, rest rooms in each block providing working conditions for the workers. The petitioners, who are holding the post of Occupier and Manager, are responsible persons of the factory for all compliance of the Acts and Rules and necessary penal action under the Act can be taken against them if any violation. On 27.02.2013, when the officials from the respondent inspected the factory on a routine basis to confirm whether the factory is complying to the provisions of the Factories Act, 1948, they found many lapses committed by the petitioners under various provisions of the Factories Act, 1948 and Tamil Nadu Factories Rules, 1950. Hence, the respondent issued show cause notice, dated 11.03.2013 listing 38 violations, which are as follows:-
1. Hazardous process is carried on in the factory, number of full time Medical Officers as prescribed in the Rules not appointed and notified to the Chief Inspector of Factories, Chennai.
2. The Occupier of the Factory not prepared and issued written statement of his policy in respect of Health and Safety of the workers.
3. In the manufacturing process, the factory utilizes large quantities of thinner and paints containing chemicals which are flammable substance such as Xylene and Toluene. Further, the Work Page No.4 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch Environmental Monitoring Studies not conducted in the factory.
4. The factory uses large quantities of Thinner and Paints, a flammable substances, but no adequate fire extinguishers are provided and maintained. The fire training for the fire fighters and drills are not held.
5. Inside the factory two LPG bullet capacity of 100 metric tonnes installed, but the tankers are not provided with flame proof electrical apparatus and fittings and other protective shoes are also not provided.
6. No spark arrestors provided to prevent ignition source.
7. Written Operating Procedure for loading and unloading LPG bullet in both English and Tamil languages are not prepared and provided to the workers and supervisors working in the factory.
8. Xylene and Toluene chemicals are covered under Appendix A of the Schedule XVI. Cautionary notices in Tamil and English language not prepared and prominently displayed.
9. The workers who are engaged in handling of hazardous chemicals, are not provided with gainster masks, aprons and gloves.
10.Adequate ventilation arrangements not maintained in the painting area.
11.Employees not trained on emergency preparedness in handling of hazardous thinner and paints.
12.Lightening protection arrangement not provided in the factory.
13.Sump not provided to confine leakages of thinner and paints from storage vessels.
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14.Fully equipped ambulance van manned by a full time driver-cum- mechanic with training not provided.
15.The workers working in the thinner and paint area not medically examined once in six months.
16.Conveyor belt not properly handled and periodically examined.
17.Paint shop conveyor belt not properly certified.
18.Fire drill not conducted for every two months.
19.Stability Certificate not produced for every three years.
20.No fire training and mock drills given to the employees.
21.Safety Committee not formed.
22.Every three months, Safety Committee Meeting report not submitted.
23.Locker facility to workers for keeping their clothes not provided.
24.Urine test, Motion test and Bacterial test not conducted for the workers working in the canteen.
25.Canteen Managing Committee not formed.
26.Oven and Driers are not inspected with qualified/competent persons.
27.Ambulance room not provided and Doctors and Nurses not appointed to give treatment to the workers.
28.Fully equipped creche facility not provided.
29.Blasting enclosure not inspected periodically. Page No.6 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch
30.Appropriate air passage to be provided and verification not done.
31.Blasting enclosure ventilation plant not installed and maintained.
32.The workers employed in blasting enclosures not medically examined periodically.
33.Records with particulars of medical examination of workers not maintained.
34.X-Ray not taken for the newly employed workers within fifteen days of joining duty.
35.Yearly medical examination of the workers not conducted.
36.Care Production Line, portable spot welding gums, hoist, auto tip drum, Co2 welding machine, hommy robot are found without blueprint approval from the Chief Inspector of Factories.
37.Employees are not educated about on-site emergency plan (Disaster Control Measures).
38.Adequate Industrial Safety Officers not employed.
5.Citing the 38 violations, the show cause notice with inspection report, dated 11.03.2013 was sent to the petitioners seeking their reply within seven days. The petitioners sent their reply on 19.04.2013 to the respondent. In the reply, the compliance for each of the 38 violations have been given. Not satisfied with the same, the respondent issued Page No.7 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch sanction order on 20.05.2013 against the petitioners, who are the Occupier and Manager of the factory viz., RNAIPL for violations of the various provisions of the Factories Act, 1948 and the Tamil Nadu Factories Rules, 1950. After the sanction order, on 23.05.2013, the complaints in C.C.Nos.239 to 250 and 282 to 297 of 2013 filed against the petitioners before the trial Court. The complaints were returned on 28.05.2013 for the reason that the complaints were not approved by the Additional Public Prosecutor and photostat copies of the documents not annexed. Thereafter, on 25.09.2013, again the complaints resubmitted, on the same day, that has been taken on file and summons issued to the petitioners.
6.During the pendency of the trial, the petitioners filed Crl.O.P.Nos.25754 to 25765, 32653 to 32668 of 2013 before this Court on the ground that erroneous cognizance taken by the trial Court and the cognizance order does not reflect any application of mind. After hearing the submissions on both sides, this Court quashed initial cognizance taken by the trial Court on 13.03.2014 and directed the trial Court to apply its mind and take cognizance on the issue. As per the order of this Page No.8 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch Court, fresh cognizance was taken on 08.07.2014 and summons were issued to the petitioners.
7.The learned Senior Counsel appearing for the petitioners submitted that despite this Court order, dated 13.03.2014 in Crl.O.P.Nos.25754 to 25765, 32653 to 32668 of 2013 quashing the cognizance taken by the trial Court against the petitioners, the trial Court again taken cognizance without reflecting application of mind, reflecting prima facie satisfaction, but issued summons to the petitioners. From the adjudication, there is nothing to show that the trial Court had applied its mind and arrived satisfaction while taking cognizance against the petitioners in compliance to this Court earlier order. He further submitted that after receipt of show cause notice with inspection report, dated 11.03.2013, the petitioners sent their reply, dated 19.04.2013 to the respondent showing compliance for the violation noted down by the respondent. The reply of the petitioners were not considered by the respondent. From the reply, dated 19.04.2013, it could be seen that the violations pointed out is not of serious in nature, all are procedural and the petitioners gave details of the facilities already available referring to Page No.9 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch the documents and communications and informing prompt remedial measures taken immediately. Further, in the reply, it is stated that the Qualified Medical Practitioner are employed with service provider; Health and Safety Policy circulated to all employees; Engineering measures such as air supply and exhaust ventilation system are provided; Air respirators are provided to prevent the exposures to the solvents contained in the paint and thinner; Environmental Monitoring Study are conducted to ensure the level of Xylene and Toluene are within the permissible limits of exposure; First-aid fire extinguisher are provided and same are periodically checked and maintained; Flame-proof/explosion-proof electrical apparatus and fittings are provided around LPG bullet tanks, vapouriser, furnaces and ovens; Spark Arrestors in the tankers are ensured before unloading the LPG to the bullet; Standard Operating Procedure for loading and unloading LPG is prepared defining safety checks and precautions; Cautionary notices explaining the flammability and Toxicity are displayed in appropriate places; Antistatic shoes, Antistatic gloves and Antistatic head covers are provided to the employees working in areas of exposure to Xylene and Toluene; Engineering measures such as air supply and exhaust ventilation systems Page No.10 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch provided; Onsite emergency preparedness plan adequately put in place; Lightening protection are provided as per the standards; Guiding trench to storage sumps are provided; Fully equipped ambulance van with trained Driver-cum-Mechanic and nurse round the clock including holidays provided; Paint shop conveyors are certified by the competent person; Fire fighting drills are periodically conducted; Stability Certificate from Mr.C.R.Narayana Rao, the competent person is obtained, Plant Safety Committee meeting are held periodically; Locker facility provided for the workers to keep their clothes and also organized lind storm services for washing, drying and pressing the clothes; Canteen facility are entrusted to M/s.Sodexo, who have arranged the Medical Officer for their staff engaged in the canteen of RNAIPL; Canteen Management Committee formed and its meeting once in a month are conducted; Ovens and Driers are examined and tested by the competent person; Seven bedded medical centre available in the factory for the purpose of first aid treatment and rest; Fully equipped creche is provided; Qualified medical practitioner is employed; pre-employment medical examination are carried out for the workers; Revised plan for the machineries is installed in the factory and Onsite emergency plan is prepared and tested Page No.11 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch periodically. All these particulars are provided. Despite the same, the factors were not considered by the respondent before filing the complaints before the trial Court.
8.Thus, in sum and substances, all the violations, which are noted by the respondent, are rectified and complied with within short period and reply, dated 19.04.2013 was sent to this effect. On receipt of the reply, the respondent not made any reference with regard to what was the violations thereafter to the compliance. The sanctioning authority without considering the same, mechanically issued the sanction order. Added to it, the trial Court while taking the complaints on file, not considered these aspects. The learned Senior Counsel further submitted that though in the complaints there is a reference to the reply sent by the petitioners, there is no advertance to the same in the complaint. In the complaints, without arraying the factory as one of the accused, the Occupier and Manager have been arrayed as accused. For this point, the learned Senior Counsel relied on the decision of the Hon'ble Apex Court in the case of “Aneeta Hada Versus God Father Travels and Tours Private Limited reported in (2012) 5 SCC 661”.
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9.The learned Senior Counsel further submitted that as far as the petitioner viz., Toshihiko Sano is concerned, he is only an Occupier of the factory. This Court in the case of “Ness Wadia Versus State of Tamil Nadu reported in MANU/TN/3963/2022” held that 'The role, responsibility and duty cast on Manager and Occupier are not one and the same. Further, the 'Occupier' under the Factories Act, cannot be omnipresent, in order to ensure that every requirement set out under the Rules are adhered to and complied with by everyone working in the factory.'.
10.The learned Senior Counsel for the petitioners relied on the following decisions for the preposition that the reply to the show cause notice was not considered and no reason given for the same. Further, the sanction order does not reflect consideration and application of mind.
● State of Gujarat Versus Kansara Manilal Bhikhalal reported in AIR 1964 SC 1893.
● K.Masthan Rao Versus State reported in 2014 (3) MLJ (Crl.) 523. ● L.Ganesh Versus State of Tamil Nadu reported in 2020 (2) CTC 666. ● Dr.Vinoth Nowal & Anr. Versus State of Tamil Nadu in Page No.13 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch Crl.O.P.Nos.9742 & 9743 of 2021, dated 23.09.2021. ● Ness Wadia Versus State of Tamil Nadu reported in MANU/TN/3963/2022.
● Samriddhi Mondal Versus State of Tamil Nadu in Crl.O.P.No.7966 of 2022, dated 06.07.2022.
11.The learned Government Advocate (Crl. Side) appearing for the respondent filed detailed counter and made his submissions that the petitioners are nominated by the company to act as responsible officers under the Factories Acts, 1958 as Occupier and Manager and as such they are jointly and severally responsible for all non-compliances under the Act and its Rules, hence necessary penal action under the Act needs to be taken by the respondent against any violators and officers of the company. He further submitted that the officials of the Industrial Safety and Health, Kancheepuram conducted inspection on the premises of the factory to ensure compliance of the Factories Act and its Rules. Surprisingly, during the inspection, there were many lapses and non- compliances on the part of the Occupier and Manager found, for which, the respondent issued show cause notice seeking reply of the petitioners. The petitioners received the show cause notice and sent a reply, dated 19.04.2013. The reply would reveal that there is admission of lapses on Page No.14 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch the part of the company and some of the violations rectified are mentioned and rest of the violations are yet to be rectified and violations continued.
12.He further submitted that the non-appointment of full time Medical Officers, Non-issuance of Health and Safety Policy, Storage of highly flammable substances at huge volume without sufficient and enough fire retardant facilities etc., are still continuing, for which no proper explanation given by the petitioners. Hence, the prosecution has been launched against them. The reply to the show cause notice is nothing but an open admission of violations committed by the petitioners. Due to storage of flammable material, there is always a possibility of fire incident and only with the help of complete and sufficient fire retardant system, the factory will be in a position to defuse the fire incident. If there is any fire incident, without qualified and sufficient medical officers appointed in the factory, there is always a possibility of huge causalities of human life. The purpose and enactment of Factories Act is to ensure prevention and every person appointed as Occupier and Manager are personally responsible for compliance to the Factories Act and Rules Page No.15 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch without which industrial accidents cannot be averted.
13.It is further submitted that the petitioners taking shield on the ground of technicalities and procedural lapses, is not proper. The petitioners having admitted the violations in the reply to the show cause notice, now cannot claim the cases are filed without application of mind by the respondent. The petitioners, who are Occupier and Manager, jointly admitted the commission of offence and agreed to rectify the violations. He further submitted that it is the duty of the Manager and Occupier of the factory under the Factories Act to ensure the premises are a safe place to work devoid of all risks including fire safety, cleanliness, waste management and the handling of harmful substances through a trained professionals by giving proper training in order to ensure life safety of both the person employed as well as its environment providing with safety gears to every persons employing in the factory is a condition. It is also the duty of the petitioners to ensure that necessary safety gears to avoid any accident or safety hazardous incidents in order to save their lives. It is the duty of the Occupier and Manager to assess situation and carryout risk assessments and rectify all the commissions and omissions Page No.16 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch through appropriate safety professionals and nominate dedicated person who would be responsible for ensuring that all health and safety duties are being carried out and adhered to by workmen without any deviation for any reason whatsoever.
14.He further submitted that as per the Act, every incident of Industrial Safety and Health are punishable offence. The Occupier and Manager of the factory are unequivocally liable for their failure and lapse, which leads to the accidents and consequently loss of lives. In this case, the inspection conducted on 27.02.2013 and show cause notice issued on 11.03.2013. The petitioners, who are liable for the lapses in their duty, were asked to rectify all the non-compliances, errors, mistakes, lapses etc. The reply by both the petitioners, dated 19.04.2013 was received by the respondent, wherein they admitted almost all the lapses notified and they ensured for taking necessary steps to rectify the lapses for future safeguarding. Based on the reply, the respondent conducted re-inspection on 26.04.2013 and found that it is true they committed the offences. Hence, the respondent issued letter to the petitioner on 08.05.2013. After getting sanction order, the complaints filed against the petitioners on Page No.17 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch 23.05.2013. The petitioners are not proceeded as Directors of the company, but they are proceeded as Manager and Occupier. As regards, cognizance aspect, the learned Government Advocate (Crl. Side) has no comments. Finally, he submitted the points raised by the learned Senior Counsel for the petitioners to quash the complaints, are factual in nature, which has to be decided only during trial and not in these Quash Petitions.
15.This Court considered the rival submissions and perused the materials available on record.
16.It is not in dispute that the petitioners are Occupier and Manager of RNAIPL. The inspection conducted by the respondent is also not in dispute. Likewise, the issuance of show cause notice to the petitioners, receipt of the same and reply to the same are also not disputed. In the show cause notice 38 violations are mentioned, which are as follows:-
1. Hazardous process is carried on in the factory, number of full time Page No.18 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch Medical Officers as prescribed in the Rules has not been appointed and notified to the Chief Inspector of Factories, Chennai.
2. The Occupier of the Factory has not prepared and issued written statement of his policy in respect of Health and Safety of the workers.
3. In the manufacturing process, the factory utilizes large quantities of thinner and paints containing chemicals which are flammable substance such as Xylene and Toluene. Further, the Work Environmental Monitoring Studies have not been conducted in the factory.
4. The factory uses large quantities of Thinner and Paints, a flammable substances, but no adequate fire extinguishers are provided and maintained; matching fire limit ensuring adequate fire protection provided and fire training for the fire fighters and drills are not held.
5. Inside the factory two LPG bullet capacity of 100 metric tonnes installed, but the tankers are not provided with flame proof electrical apparatus and fittings and other protective shoes are also not provided.
6. No spark arrestors provided to prevent ignition source.
7. Written operating procedure for loading and unloading LPG bullet in both English and Tamil languages are not prepared and provided to the workers and supervisors working in the factory.
8. Xylene and Toluene chemicals are covered under Appendix A of the Schedule XVI. Cautionary notices in Tamil and English language not prepared and prominently displayed.
9. The workers who are engaged in handling of hazardous chemicals, are not provided with gainster masks, aprons and gloves. Page No.19 of 28
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10.Adequate ventilation arrangements have not been maintained in the painting area.
11.Employees have not been trained on emergency preparedness in handling of hazardous thinner and paints.
12.Lightening protection arrangement has not been provided in the factory.
13.Sump not provided to confine leakages of thinner and paints from storage vessels.
14.Fully equipped ambulance van manned by a full time driver-cum- mechanic with training not provided.
15.The workers working in the thinner and paint area have not been medically examined once in six months.
16.Conveyor belt not properly handled and periodically examined.
17.Paint shop conveyor belt has not been properly certified.
18.Fire drill every two months not conducted.
19.Stability Certificate not produced for every three years.
20.No fire training and mock drills given to the employees.
21.Safety Committee has not been formed.
22.Every three months, Safety Committee Meeting report has not been submitted.
23.Locker facility to workers for keeping their clothes not provided.
24.Urine test, Motion test and Bacterial test not conducted for the Page No.20 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch workers working in the canteen.
25.Canteen Managing Committee not formed.
26.Oven and Driers have not been inspected with qualified/competent persons.
27.Ambulance room not provided and Doctors and Nurses have not been appointed to give treatment to the workers.
28.Fully equipped creche facility not provided.
29.Blasting enclosure not inspected periodically.
30.Appropriate air passage to be provided and verification not done.
31.Blasting enclosure ventilation plant not installed and maintained.
32.The workers employed in blasting enclosures not medically examined periodically.
33.Records with particulars of medical examination of workers not maintained.
34.X-Ray not taken for the newly employed workers within fifteen days of joining duty.
35.Yearly medical examination of the workers not conducted.
36.Care Production Line, portable spot welding gums, hoist, auto tip drum, Co2 welding machine, hommy robot are found without blueprint approval from the Chief Inspector of Factories.
37.Employees are not educated about on-site emergency plan (Disaster Control Measures).
38.Adequate Industrial Safety Officers not employed. Page No.21 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch These are all primarily violations under the Act and its Rules. From the reply, it is seen that almost all the violations are rectified, which are as follows:-
● The process of hiring Medical Practitioner in accordance with Rules is being implemented; Health and Safety Policy are displayed and circulated to all employees; Air Supply and Exhaust Ventilation systems are put in place; Fire extinguisher and First-aid facilities are provided; Flame-proof/explosion-proof electrical apparatus are provided in appropriate locations; Preventive steps are taken for accumulation of static charges in the points of LPG bullet tanker, vaporiser and pumps; LPG pipelines are continually bonded and earthed; the workers who are handling flammable materials and hazardous chemicals are provided with antistatic shoes, antistatic gloves and antistatic head covers; Cautionary notices are displayed in hazardous areas; onsite emergency preparedness plan adequately put in place; in case of any spillages and leakages, bunds/dykes and guiding trench to storage sumps are provided; fully equipped ambulance van with trained Driver-cum- Page No.22 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch Mechanic and Nurse round the clock including holidays are provided; the employees employed in areas where thinner and paints are handles are examined medically once in six months; Keeping the records of personal medical file are put in place; Paint shop conveyor are certified by the competent person; Stability Certificate are obtained from the competent person; Fire fighting training is provided to employees and mock drills are periodically conducted; Plant Safety Committee meeting is held; likewise Canteen Management Committee have also formed.
17.Though in the counter it is mentioned that there have been follow-up and re-inspection conducted on 26.04.2013, no reference is found in the sanction order as well as in the complaints. Further, the particulars with regard to what are the violations which are still continuing after compliance does not find place either in the sanction order or in the complaints. Added to it, what are the particulars provided in the letter, dated 08.05.2013 is not known. The reference to the re-
inspection conducted on 26.04.2013 and letter, dated 08.05.2013 are only found in the counter. It is settled principle that a counter cannot Page No.23 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch improve and enlarge the case of the respondent since they are not referred and found place in the sanction order as well as in the complaints. Hence, it has got no relevance or gain credence.
18.The aim and purpose of the inspection in the factory is that if the official finds any violations, the same to be informed to the concerned officials of the factory by way of show cause notice and to be ensured its compliances. If the violations are not complied with, then appropriate action to be taken. In this case, admittedly, after the inspection, show cause notice was issued by the respondent to the petitioners, compliance report by way of reply was submitted by the petitioners rectifying the violations. Once the violations are rectified ensuring all safety measures and welfare measures are put in place, no further prosecution to be initiated. Here, eventhough the petitioners have rectified the violations noted down by the respondent in the factory, the respondent launched prosecution and filed complaints against the petitioners. More so, the trial Court without considering the compliances of the petitioners, took cognizance and issued summons to the petitioners. As could be seen from the complaints and sanction order, there is no reference to the reply Page No.24 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch given by the petitioners, dated 19.04.2013 and there is nothing to show any continuation of violations.
19.Following the decision of the Hon'ble Apex Court in the case of “State of Gujarat Versus Kansara Manilal Bhikhalal reported in AIR 1965 SC 1893” this Court in the cases of “K.Masthan Rao Versus State reported in 2014 (3) MLJ (Crl.) 523; Dr.Vinoth Nowal & Anr. Versus State of Tamil Nadu in Crl.O.P.Nos.9742 & 9743 of 2021, dated 23.09.2021; Ness Wadia Versus State of Tamil Nadu reported in MANU/TN/3963/2022; L.Ganesh Versus State of Tamil Nadu reported in 2020 (2) CTC 666” held that 'the respondent cannot ignore the reply to the show cause notice and cannot proceed to lodge the complaint. In terms of Rule 102 of the Tamil Nadu Factories Rules, 1950, the Occupier, Owner or Manager of a factory shall furnish information to an Inspector for the purpose of satisfying himself whether any of the provisions of the Act has been complied with or whether any order of the Inspector has not carried out. Thus, the Rules contemplates an opportunity for compliance.'. In this case, the compliance are done and Page No.25 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch the same are reported to the concerned authorities forthwith. But for the reasons best known, the reply was not considered by the respondent. As noticed above, there is no reference to the reply submitted by the petitioners either in the sanction order or in the complaints.
20.In the case of “Pepsi Foods Limited Versus Special Judicial Magistrate reported in 1998 SCC (Crl.) 1400” the Hon'ble Apex Court held that the learned Magistrates ought to have scrutinized the evidence brought on record and thereafter, issue summons to the accused. In this case, from the adjudication, it is found that no such exercise done despite order of this Court in Crl.O.P.Nos.25754 to 25765, 32653 to 32668 of 2013, dated 13.03.2014 directing the trial Court to reflect application of mind before taking cognizance.
21.The object of the Act is for welfare of the labour. Various restrictions and conditions are imposed in the interest of public health and welfare of the labours employed in the factory. It not the case of the respondent that the explanation offered by the petitioners is not tangible and lacks bonafide.
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22.In the light of the above discussions, this Court has no hesitation to hold that the complaints are vitiated on account of total non- application of mind. Hence, no useful purpose will be served by making the petitioners to undergo the ordeal of facing a trial.
23.In the result, the proceedings in C.C.Nos.239 to 250 and 282 to 297 of 2013 on the file of the Chief Judicial Magistrate Court, Chengalpet are quashed. Accordingly, all these Criminal Original Petitions are allowed. Consequently, the connected Miscellaneous Petitions are closed.
24.02.2023 (½) Neutral Citation: Yes/No Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 To
1.The Chief Judicial Magistrate Court, Chengalpet.
M.NIRMAL KUMAR, J.
Page No.27 of 28 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.20330 of 2014 and batch vv2
2.The Deputy Director, Industrial Safety and Health, State of Tamil Nadu, First Circle, Kancheepuram, 130/1, Gandhi Road, Sriperumbudur – 602 105.
3.The Public Prosecutor, High Court, Madras.
PRE-DELIVERY ORDERS IN Crl.O.P.Nos.20330 to 20341 and 21097 to 21112 of 2014 24.02.2023 (½) Page No.28 of 28 https://www.mhc.tn.gov.in/judis