Karnataka High Court
Sri P Panduranga Rao S/O Pemmasani ... vs State Of Karnataka on 1 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1250
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.5671 OF 2011
BETWEEN:
1. SRI P PANDURANGA RAO
S/O PEMMASANI PATTABHI RAMAIAH
AGED ABOUT 55 YEARS
HAVING OFFICE AT,
REP BY ITS OCCUPIER
M/S. UDUPI POWER CORPORATION LIMITED
KOLACHUR, YELLUR VILLAGE, PILLAR POST,
PADUBIDRI, UDUPI 574 113
R/A PLOT NO 17, LUMBINI SLN SPRINGS,
GACHIBOWLI, HYDERABAD 500 032
2. SRI P KRISHNA GOPAL
S/O B PARAMAESWARAN
AGED ABOUT 53 YEARS
HAVING OFFICE AT,
REP BY ITS MANAGER
M/S. UDUPI POWER CORPORATION LIMITED
KOLACHUR, YELLUR VILLAGE, PILLAR POST,
PADUBIDRI, UDUPI 574 113
R/AT S1, CLASSIQUE KRISHAN
KODIALGUTHU (EAST) CROSS ROAD,
MANGALORE-575003. ... PETITIONERS
(BY SRI: K SHASHI KIRAN SHETTY, SR.ADVOCATE)
AND
STATE OF KARNATAKA
SENIOR ASSISTANT DIRECTOR OF FACTORIES,
DIVISION 2, MANGALORE
2
REP BY
SHRI M S MAHADEV ... RESPONDENT
(BY SRI: S.RACHAIAH, HCGP )
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE COMPLAINT FILED BY THE RESPONDENT
IN C.C.NO.1712/11 BEFORE THE II ADDL.C.J., (JR.DN.) AND JMFC,
UDUPI (ANNEXURE-A). SET ASIDE THE ORDER DATED:15.6.11
AND FURTHER PROCEEDINGS IN C.C.NO.1712/11 FROM THE II
ADDL.C.J., (JR.DN.) AND JMFC, UDUPI, (ANNEXURE-B).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.08.2018 AND COMING ON FOR
PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE
THE FOLLOWING:-
ORDER
The petitioners have sought to quash the complaint filed by the respondent in C.C.No.1712/2011 under section 200 Cr.P.C. By the said complaint, the respondent herein has sought prosecution of the petitioners for the alleged contravention of the provisions of the Factories Act, 1948 and the Rules made thereunder ("Act" for short).
2. The complainant was the Senior Assistant Director of Factories, Division No.2, Mangalore. In the complaint it is alleged that M/s.Udupi Power Corporation Limited, Kolachur, 3 Yellur village, Pilar Post, Padubidri, Udupi, was a "factory" as defined under section 2(m)(i) of the Act. The manufacturing process of thermal power generation was being carried on in the said factory with the aid of electrical power by employing ordinarily around 825 workers.
3. On 18.01.2011, at about 3.00 p.m., Sri.B.Thejeswar, Manager Safety, informed the complainant over telephone that there was a fatal accident to Sri.Mahantesh, a contract worker in the above said factory. Based on the said information, the complainant visited the factory on 18/19.01.2011 and conducted a detailed inquiry into the said accident. From the inquiry, it revealed that the accident in subject had occurred in the STP-Sewerage line with manholes trench which was about 4 feet width, about 4 meter depth and about 20 meter in length, near the TG building. There was a storm water open drain at a distance of about 5 meters on one side towards south (pitching done) and a main road at a distance of about 2 meters on the other side towards north wherein heavy trucks were passing. The said 4 trench was found being made on the back filled soil (loose clay soil).
4. On 18.01.2011, at about 9.00 a.m., Sri.Mahantesh, a male contract worker, aged about 24 years, was working in the above factory as a contract worker under the contractor M/s.Tunga Bhadra Services under M/s. L.I.T.L.- EPC, Padubidri, Udupi District. As per the instructions of Sri.Bharath, Site Engineer, Sri Aravind, contract supervisor, along with other six contract workers including the deceased Sri. Mahantesh, were doing the civil work of STP-Sewerage line and manholes near the TG building in the above factory premises.
5. When the deceased was moving at the bottom of the trench to bring the thread which was being used to mark the level at the bottom of the trench, as the soil was back filled loose clay soil and the trench was vertical without any side slopes or shoring, due to movement of heavy trucks on the adjacent road and due to vibration, the excavated sand which was stacked on one side above the ground slided and 5 he got struck below the sand and succumbed to the injuries sustained.
6. According to the complainant, the civil work at the bottom of the trench of the STP-Sewerage line was being carried out in such a manner as to cause risk of bodily injury, which has resulted in the death of Sri.Mahantesh. The Management had failed to take all the necessary steps to overcome the above said unsafe acts and unsafe conditions and thereby the provision of Rule 84 of the Karnataka Factories Rules 1969 has been contravened. Further, the civil work was found being carried out without any proper arrangement for ensuring safety of the workers at work and without strict supervision and thereby, the Occupier of the factory has contravened the provision of section 7A(2)(c) of the Factories Act 1948.
7. Sri.K.Shashi Kiran Shetty, learned Senior Advocate for the petitioners would contend that the provisions of the Factories Act 1948 are not applicable to the facts of the present case. The deceased was engaged in the construction 6 work of the power project which was not a manufacturing process. The deceased was not a "worker" within the meaning of Factories Act 1948 and therefore, the petitioners cannot be held liable for the death of the deceased. For the purpose of construction of the project, UPCL had engaged the EPC contractor M/s. Lanko Infratech Limited who in turn had engaged various sub-contractors for the construction of the power project. One of such sub-contractor engaged by EPC Contractor was M/s.Tunga Bhadra Services. The deceased was engaged by M/s.Tunga Bhadra Services. He was carrying on civil works in the construction of STP sewage line in the power project construction area. The work of the deceased was not related or incidental or proximate to the manufacturing process. Since the deceased was not carrying on any work related to manufacturing process, he could be termed as a "worker" under the Act. There was no master and servant relationship between the deceased and UPCL, since the deceased was not appointed by UPCL nor was he working under the direction and supervision of the petitioners and therefore, the deceased was not a "worker" as defined 7 under section 2(l) of the Act. The deceased was not involved in any "manufacturing process" as defined under section 2(k) of the Act. Therefore, the order dated 15.06.2011 taking cognizance of the offence under section 92 of the Act is erroneous and is liable to be quashed. In support of his argument, learned counsel has placed reliance on the decision in the case of RAMLANSHAN JAGESHAR vs. BOMBAY GAS CO. LTD., AIR 1961 Bombay 184, and HARBANSLAL vs. STATE OF KARNATAKA, 1976(1) Kar.L.J. 111 and PURI URBAN CO- OPERATIVE BANK vs. MADHUSUDHAN SAHU, AIR 1992 SC 1452.
8. Learned HCGP appearing for the State has placed reliance on the definition of "worker" as defined in section 2(l) and would contend that as per the said definition, any person employed, directly or by or through any agency, including a contractor, for the purpose of cleaning any part of the machinery or premises used for a manufacturing process falls within the definition of "worker". The accident in question having taken place within the factory premises where the 8 "manufacturing process" was being carried on as defined under section 2(k) of the Act and the work attended to by the deceased being incidental to manufacturing process, the complaint against the petitioners is maintainable. The petitioners were the 'occupiers' as defined in section 2(n) of the Act. Therefore, the petitioners cannot seek to quash the complaint on the purported contentions urged in the petition and hence, he has sought for dismissal of the petition.
9. In the light of the contentions urged by the parties, the questions that fall for consideration are:
(1) Whether the deceased was a "worker" within the meaning of section 2(l) of the Factories Act?
(2) Whether the work attended to by the deceased bears nexus to or proximity with the "manufacturing process" carried on in the aforesaid factory premises?
10. It is not in dispute that the alleged accident took place within the factory premises namely M/s.Udupi Power Corporation Limited. The petitioners also do not dispute the 9 fact that they were "occupiers" within the meaning of section 2(n) of Act and by virtue of the said provision, ultimate control of the affairs of the factory was vested with them. The only ground on which the petitioners have sought to quash the complaint initiated against them is that the deceased was not a "worker" within the meaning of section 2(l) of the Act and that he was not engaged in any "manufacturing process" within the meaning of section 2(k) of the Act and therefore, the petitioners are not liable to answer the charges levelled against them.
11. Since the contentions raised by the petitioners are based on the interpretation and applicability of the provisions of the Act, it may be necessary to look into the relevant provisions of the Act. The purpose and object behind legislating the Factories Act has been elucidated by the Hon'ble Supreme Court of India in BHIKUSA YAMASA KSHATRIYA (P) LTD. Vs. UNION OF INDIA, AIR 1963 S.C. 1591. The relevant para 9 reads as under:
"9. The Factories Act, as the Preamble recites, is an Act to consolidate and amend 10 the law regulating labour in factories. The Act is enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards. For that purpose it seeks to impose upon the owners or the occupiers certain obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conducive to their health and safety. The Act requires that the workers should work in healthy and sanitary conditions and for that purpose it provides that precautions should be taken for the safety of workers and prevention of accidents. Incidental provisions are made for securing information necessary to ensure that the objects are carried out and the State Governments are empowered to appoint Inspectors, to call for reports and to inspect the prescribed registers with a view to maintain effective supervision. The duty of the employer is to secure the health and safety of workers and extends to providing adequate plant, machinery and appliances, supervision over workers, healthy and safe premises, proper system of working and extends to giving reasonable instructions. Detailed provisions are therefore made in diverse Chapters of the Act imposing 11 obligations upon the owners of the factories to maintain inspecting staff and for maintenance of health, cleanliness, prevention of overcrowding and provision for amenities such as lighting, drinking water, etc. etc. Provisions are also made for safety of workers and their welfare, such as restrictions on working hours and on the employment of young persons and females, and grant of annual leave with wages. Employment in a manufacturing process was at one time regarded as a matter of contract between the employer and the employee and the State was not concerned to impose any duties upon the employer. It is however now recognized that the State has a vital concern in preventing exploitation of labour and in insisting upon proper safeguards for the health and safety of the workers. The Factories Act undoubtedly imposes numerous restrictions upon the employers to secure to the workers adequate safeguards for their health and physical well-being. But imposition of such restrictions is not and cannot be regarded, in the context of the modern outlook on industrial relations, as unreasonable. Extension of the benefits of the Factories Act to premises and workers not falling strictly with the purview of the 12 Act, is intended to serve the same purpose. By authorizing imposition of restrictions for the benefit of workers who in the view of the State stand in need of some or all the protections afforded by the Factories Act, but who are not governed by the Act, the Legislature is merely seeking to effectuate the object of the Act, i.e., it authorizes extension of the benefit of Act to persons to whom the Act, to fully effectuate the object, should have been, but has on account of administrative or other difficulties not been extended. Provisions made for the benefit of 'deemed workers' cannot therefore be regarded as not reasonable within the meaning of Article 19(1)(g) of the Constitution. "
12. In order to show that the provisions of the said Act are not applicable to the facts of the present case, the learned counsel for the petitioners has placed reliance on another decision rendered by the Hon'ble Supreme Court of India in the case of LANCO ANPARA POWER LIMITED Vs. STATE OF UTTAR PRADESH AND OTHERS, (2016)10 SCC 329 and with reference to paragraph 34 thereof, it is contended 13 that, "a factory is an establishment where manufacturing process is carried on with or without the aid of power. Carrying on this manufacturing process or manufacturing activity is thus a prerequisite. It is equally pertinent to note that it covers only those workers who are engaged in the said manufacturing process." In other words, it is the submission of the learned counsel for the petitioners that the workers who are engaged in the construction of the building do not fall within the ambit of the Factories Act. In the instant case, the deceased was engaged in the construction of STP-Sewerage lines which was purely a civil work unconnected with the manufacturing activity. The deceased was also not engaged in the manufacturing process. The deceased was working under the sub-contractor M/s Tunga Bhadra services. The work of the deceased was not related or incidental to or proximate to the manufacturing process.
13. I have gone through the decision in Lanco Anpara Power Ltd., referred to supra. In the said decision, the appellants therein were issued show-cause notices by the 14 authorities concerned under the provisions of the Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996 (for short "BOCW Act") which were challenged by filing writ petitions in the High Court on the ground that the provisions of BOCW Act or the Welfare Cess Act were not applicable to them because of the reason that they were registered under the Factories Act, 1948. In the said decision, the Hon'ble Supreme Court has specifically noted that at the relevant time no manufacturing operation had commenced by the appellants therein. The appellants were in the process of construction of civil works/factory buildings etc., wherein they had planned to set up their factories. As the process of construction of civil works was undertaken by the appellants wherein construction workers were engaged, the respondent authorities took the view that the provisions of the aforesaid Acts which were meant for construction workers became applicable. In the said backdrop, considering the legislative intent of BOCW Act and the Factories' Act, the Hon'ble Supreme Court in para 34 of the above judgment has observed that, 15
34. On the conjoint reading of the aforesaid provisions, it becomes clear that "factory" is that establishment where manufacturing process is carried on with or without the aid of power. Carrying on this manufacturing process or manufacturing activity is thus a prerequisite. It is equally pertinent to note that it covers only those workers who are engaged in the said manufacturing process. Insofar as these appellants are concerned, construction of building is not their business activity or manufacturing process. In fact, the building is being constructed for carrying out the particular manufacturing process, which, in most of these appeals, is generation, transmission and distribution of power.
Obviously, the workers who are engaged in construction of the building also do not fall within the definition of "worker" under the Factories Act. On these two aspects, there is no cleavage and both parties are at ad idem.
What follows is that these construction workers are not covered by the provisions of the Factories Act.
14. In the instant case, undisputedly, the petitioners were the "occupiers" of the factory wherein the alleged 16 accident has taken place. It was an ongoing factory. Unlike in Lanco Anpara Power Limited, the manufacturing process was being carried on in the said factory at the relevant time. The deceased was engaged in laying STP-Sewerage line in the power project construction area. In the complaint lodged before the police it was specifically stated that "the accident took place when the pipeline was being laid to the toilet near the first T.G.Tower". The said averment therefore makes it abundantly clear that the sewerage line was being laid to the existing toilet, which means, the deceased was engaged in attending to the maintenance of the existing facilities in the factory. Therefore, it cannot be said that the deceased was not a worker within the meaning of provisions of the Act.
15. Section 2(l) defines the term "worker" as under:
"2(l) "worker" means a person [employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not], in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of 17 work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process [but does not include any member of the armed forces of the Union];
16. A reading of the above definition makes it clear that in order to answer the description of a "worker" under the provisions of this Act, the worker need not be employed directly by the factory. As per the said definition, even a person who is employed through an agency including a contractor either in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work incidental to thereof or connected with the manufacturing process would bring the said person within the said definition. The workers who actually work on the machines, no doubt are employed in the manufacturing process, but the definition includes, workers employed "in any other kind of work incidental to or connected with the manufacturing process". As explained by the Bombay High Court in UNION OF INDIA AND ANOTHER vs. ARUN VITHAL BONDE, 2010(3) Mh.L.J, 447, "The ambit of 18 these words is very wide and must necessarily include those who are not employed in the manufacturing process. The words 'any other kind of work' emphasizes that the work is other than that of the manufacturing process itself. The nature of the 'other kind of work' may not be the manufacturing process per se or a part thereof. The work may be entirely different. It must, however, be incidental to or connected with it. Such other work must have a nexus to or be proximate with the manufacturing process for instance by contributing to or facilitating the manufacturing process." In that view of the matter, the work of laying a pipeline to the existing toilet for the purpose of maintaining the facilities to carry on the manufacturing activity within the factory premises would undoubtedly fall within the expression "any other kind of work incidental to, or connected with the manufacturing process", so as to bring the deceased worker within the definition of "worker" as defined in section 2(l) of the Act.
19
17. As there are specific allegations in the complaint that the alleged accident had taken place when the deceased was engaged in laying a pipeline within the factory premises, in my view, the allegations made in the complaint squarely attract the ingredients of the offences alleged against the petitioners. Hence, the contention of the petitioners that the deceased was not a "worker" within the meaning of the provisions of the Factories Act and therefore, the complaint initiated against them is not legally tenable is liable to be rejected. Since the allegations made in the complaint require to be investigated, the impugned complaint cannot be quashed as sought for by the petitioners. As a result, the petition is liable to be dismissed.
Accordingly, the petition is hereby dismissed.
Sd/-
JUDGE Bss.