Karnataka High Court
Sri.V.G.Joshi vs The State Of Karnataka on 28 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION NO.2263 OF 2014
BETWEEN:
1. SRI.V.G.JOSHI,
S/O GOPAL APPAN BHAT,
AGED 59 YEARS,
OCCUPIER,
DIRECTOR (TECHNICAL) OCCUPIER,
M/S MANGALORE REFINERY AND
PETROCHEMICLS LTD.,
KUTHETHOOR VIA KATIPALLA,
MANGALORE-575030,
D.K.
2. SRI H P PAI,
S/O LATE H R PAI,
AGED 57 YEARS,
FACTORY MANAGER,
M/S MANGALORE REFINERY
AND PETROCHEMICLS LTD.,
KUTHETHOOR VIA KATIPALLA,
MANGALORE-575030,
D.K. ...PETITIONERS
(BY SRI ASHOK HARANAHALLI, SR. COUNSEL FOR
SRI S B PAVIN, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
2
BY SRI K G NANJAPPA,
DEPUTY DIRECTOR OF FACTORIES,
DIVISION-I,
MANGALORE-560 006,
D.K. ...RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
****
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS
AGAINST THE PETRS. IN THE C.C.NO.3693/2013 ON THE
FILE OF THE JMFC-II COURT, MANGALORE DISTRICT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of the Code of Criminal Procedure to quash the entire proceedings against the petitioners in C.C. No.3693/2013 on the file of J.M.F.C. II Court, Mangalore.
2. Heard learned Senior Counsel for the petitioners and learned Additional State Public Prosecutor for the respondent State.
3. The facts leading to this petition are that on the complaint filed by Deputy Director of Factories, Division-I, Mangalore, the learned Magistrate took cognizance of the 3 offence punishable under Section 92 of the Factories Act, 1948 and directed to register the criminal case and summons was issued to the accused.
4. The allegations in the complaint are that the accommodation provided for the contract workers employed in the factory for their dining is inadequate and it is also alleged that a suitable room for children under the age of six is not provided and maintained for women workers and also that cost of fuel required for cooking and heating of water or food stuff and cost of gas cylinders used in the canteen for the contract workers is not borne by the occupier of the factory. Thereby, the occupier and Manager of the Factory have contravened the provisions of Section 48 (1), Rule 94(1), 96 (3) (f) of the Factories Act and Rules, which are punishable under Section 92 of the Factories Act.
5. On submission of the aforesaid complaint, the Magistrate has taken the cognizance and directed the office 4 to register the case. Being aggrieved by the impugned order passed by the learned Magistrate for registering the case and issuance of summons, the petitioners have preferred this criminal petition for quashing the proceedings.
6. The learned Senior Counsel for the petitioners contends that the petitioner No.1 is the Managing Director and the petitioner No.2 is the Factory Manager of M/s.Mangalore Refinery and Petrochemicals Ltd., which is a Public Sector Undertaking and the present complaint is filed against the Government officials namely the Managing Director and Factory Manager and no prior sanction has been taken. Thus, initiation of the proceedings against the petitioners and taking cognizance of the offence against the public servants as defined under Section 197 of the Code of Criminal Procedure and Section 21 of the Indian Penal Code is bad in law. The next contention is that the impugned order passed by the learned Magistrate in taking cognizance of the offence and registering the case is 5 erroneous as the procedure prescribed under the Factories Act has not been complied with. Thus, the initiation of the proceedings against the petitioners is liable to be quashed.
7. Per contra, the learned Additional State Public Prosecutor submitted that there is no requirement of prior sanction to prosecute the petitioners, in view of the decision of the Hon'ble Apex Court reported in AIR 2019 SC 3929 in the case of Bharat Sanchar Nigam Ltd. and others vs. Pramod Sawant and another. Further, it is submitted that Section 107 of the Factories Act is applicable to only specific Sections, i.e., Sections 50, 39, 40, 48 and 87(a). Hence, there was no requirement of passing an order in writing as provided under Section 107 of the Factories Act. The legal action was initiated after compliance of the procedure prescribed and there is no irregularity or illegality whatsoever.
8. The first and the foremost contention of the learned Senior Counsel for the petitioners is that in 6 response to the show cause notice/report issued by the complainant - Deputy Director of Factories (an Inspector appointed under Section 8(1) of the Factories Act), the petitioners had submitted the reply, but the complainant has not passed any order in respect of the said reply and communicated the same to the petitioners, instead he has directly filed a private complaint to initiate legal action which cannot be sustained in law. In support of the said contention, he has relied on a decision reported in 2007 SCC Online Madras 558 in the case of Inspector of Factories, Vellore vs. Showa Engineering Ltd., Sholinghur.
9. As could be seen from the records furnished by the learned Senior Counsel, a detailed accident report- cum-show cause notice dated 03.10.2013 was issued by the complainant - Deputy Director of Factories, Mangalore to the petitioners. In response to the said show cause notice, the petitioners have issued reply on 09.10.2013. It is pertinent to note that, on receiving the reply from the 7 petitioners to the show cause notice dated 03.10.2013, the complainant - Deputy Director of Factories ought to have passed an order and communicated the same to the petitioners. But, no such action is taken by the complainant. If the complainant - Deputy Director of Factories had passed an order and communicated the same to the petitioners, they would have got an opportunity to prefer appeal, as provided under Section 107 of Factories Act, 1948.
10. The respondent has not placed any material to show that the complainant - Deputy Director of Factories had passed an order on receiving the reply from the petitioners on the show cause notice issued to them. The respondent/complainant being a public servant was under
the obligation to pass an order considering the reply given by the petitioners to the show cause notice. Under these circumstances, it is evident that the complainant has directly initiated the legal action without passing an order on the reply given by the petitioners, as such, petitioners 8 are deprived of opportunity to prefer appeal under Section 107 of the Factories Act.
11. When the action is initiated without considering the explanation offered by the petitioners, the initiation of such proceedings is opposed to law. As already stated above, the respondent should have passed an order in accordance with law, against which, an order of appeal is provided under Section 107 of the Factories act. Therefore, in lieu of non-considering the explanation submitted by the management and initiation of legal action is detrimental to the interest of the petitioners, as the management has lost the right of appeal provided under the Statute. Hence, the initiation of legal action as ordered by the learned Magistrate cannot be sustained in law.
12. For the foregoing reasons, this petition deserves to be allowed. Accordingly, I pass the following:
i. Criminal Petition is allowed.9
ii. The proceedings in C.C. No.3693/2013 on the file of the J.M.F.C. II Court, Mangalore, is quashed. However, the liberty is reserved to the respondent/ complainant to pass necessary order on the reply given by the petitioners to the show cause notice and proceed further if necessary, in accordance with law. In view of disposal of the main petition, I.A. No.1/2014 does not survive for consideration and the same is disposed of.
Sd/-
JUDGE SJ