Karnataka High Court
Subhas G. Biradar vs State Of Karnataka on 22 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF OCTOBER 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.100491/2015
BETWEEN:
SUBHAS G. BIRADAR,
AGE 42 YEARS,
OCC: PRESENTLY WORKING AS MANAGER-HR
AND ADMN. NALAWADE SUGAR MILLS LIMITED
TQ. INDI, DIST. BIJAPUR.
... PETITIONER
(BY SRI.JAGADISH PATIL, ADV.)
AND:
STATE OF KARNATAKA
REPRESENTED BYSRI R.K. PARTHASARATHY,
ASST. DIRECTOR OF FACTORIES
DIVISION-2 HUBLI, UMACHAGI BUILDING
2ND FLOOR, CEON ROAD, HUBLI.
.. RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE
PROCEEDINGS IN CONNECTION WITH C.C. NO.596/2009
PENDING ON THE FILE OF THE JUDICIAL MAGISTRATE,
BADAMI FOR THE OFFENCES PUNISHABLE UNDER SECTION
92 OF THE FACTORIES ACT 1948 AGAINST THE
PETITIONER/ACCUSED BY ALLOWING THIS PETITION.
Crl.P. No.100491/2015
2
THIS CRIMINAL PETITION COMING ON FOR HEARING
THROUGH PHYSICAL HEARNG/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petitioner, who is accused No.2 in C.C. No.596/2009 pending on the file of the Judicial Magistrate First Class Court at Badami (hereinafter for brevity referred to as 'trial Court') for an offence punishable under Section 92 of the Factories Act, 1948, has sought for quashing of the said criminal case against him. The said criminal case originated from the complaint under Section 200 of Cr.P.C. filed by the State at the instance of one Sri. R.K. Parthasarahy, Assistant Director of Factories, Division-2. Hubli, seeking initiation of prosecution against accused No.1, who is said to be the occupier of the company by name M/s Shri. Kedarnath Sugar and Agro Products Limited and the present petitioner as accused No.2, was shown as the Factory Manager. The offence alleged against them was Crl.P. No.100491/2015 3 that when the complainant visited the said factory on 24.08.2009 on the receipt of message of an accident that occurred in the said factory on 21.08.2009 resulting in the death of a worker of the said factory, he noticed several of discrepancies and violation of some of the provisions of the Factories Act, 1948, more particularly, the contraventions under various provisions of the Factories Act including Section 21(1)(iv)(b) and 7A(2)(c), and Rule 3(1) of the Karnataka Factories Rules, 1969 read with Section 6(1)(aa) of the Factories Act 1948 and Rule 136 of the Karnataka Factories Rule, 1969. These alleged contraventions by the accused are punishable under Section 92 of the Factories Act. With these, the complainant has prayed the trial Court for holding trial and to punish the accused therein for the above mentioned offence alleged to have been committed by them. The Court took cognizance and registered a case. The accused including the present petitioner appeared in the trial Crl.P. No.100491/2015 4 Court and allowed the trial Court to proceed further in the matter. Now, accused No.2 therein has come up with the present petition seeking quashing of the entire proceedings.
2. The respondent is being represented by the learned High Court Government Pleader.
3. Learned counsel for the petitioner in his arguments submitted that as on the date of the inspection, the petitioner was not the Manager of accused No.1-factory. He had long back resigned and had assumed an employment under a different company by name Nalawade Sugar Mills Limited. As such, he has been falsely implicated in the matter. He further submitted that accused No.1, who is occupier of the factory, should have informed the Inspector through a written notice about change in the Manager of the factory within seven days from the date of change and in the absence of the same, the occupier himself would Crl.P. No.100491/2015 5 be treated as the Manager of the factory under Section 7(4) and (5) of the Factories Act. As such also, the criminal case against the present petitioner deserves to be quashed.
4. Learned High Court Government Pleader for the respondent in his arguments vehemently submitted that as on the date of the inspection, it was the present petitioner who was the Factory Manager. As such, the complainant has arraigned the present petitioner as accused No.2 in the complaint. He further submitted that though the petitioner has produced the photo copies of his alleged acceptance of resignation and subsequent appointment order with a different company and also the alleged salary slip, but those copies are a mere photo copies and the genuinity and authenticity of the same is seriously disputed. He further submitted that he gets discharged if the originals of these documents are produced. The Court in this connection Crl.P. No.100491/2015 6 had directed the petitioner to produce the original of those documents particularly, the letter of alleged acceptance of resignation from accused No.2 company. Learned counsel for the petitioner, today, submits that he could not lay his hands on the said document. On the other hand, he gives more emphasis on Section 7(4) and 7(5) of the Factories Act.
5. The complainant is none else than the Assistant Director of the Factories, who in his very complaint itself has spoken about he conducting a physical inspection of the alleged accident site which was in the accused No.1-Factory on 24.08.2009 subsequent to receiving an information of an accident said to have occurred in the said factory on 21.08.2009 resulting in the death of a worker of the factory. During his visit, he is also said to have conducted investigation in the factory under the Factories Act where he is said to have noticed various contraventions in the maintenance Crl.P. No.100491/2015 7 and management of the factory. He has given a detailed list of the alleged contraventions in the very complaint itself. He has specifically stated that the present petitioner, who is accused No.2, was the Factory Manager as on the date of the accident and on the date of his visit. Therefore, when the complainant specifically alleges that the present petitioner was the Factory Manager as on the date of the alleged accident, then it is for the present petitioner, who has taken the defense that he was not the Factory Manger on the said date, to convince the Court that he was not the manager of the factory as on the said date.
6. In order to prove his contention and to satisfy the Court that he was no more in the services of the accused No.1-company, no doubt, the petitioner has come up with photo copies of the three alleged documents which is said to be a copy of acceptance of resignation from accused No.1-company, a copy of his Crl.P. No.100491/2015 8 alleged appointment under one M/s Nalawade Sugar Mills Limited and a printout of his alleged salary break- up sheet as Annexure-1, however, without any details as to from which company or the employer the said document was issued.
7. Learned High Court Government Pleader has disputed these documents and submits that if at all the petitioner is relying upon certain documents in order to show that he was not under the employment of accused No.1-factory as on the said date, then, those documents has to be confronted to the complainant/prosecution witnesses in the course of trial and his reaction and response to the said documents has to be considered. He raises serious objection to these documents which are in the photo copy versions.
Crl.P. No.100491/20159
8. I find some force in the said argument of the learned High Court Government Pleader.
9. It is those documents, which are not in dispute, this Court can rely upon and based on the information shown in those documents, can proceed in the matter. However, when the very document regarding existence or not of a fact is shown to be established or dismantled through the document, then that document is required to be proved first. In the instant case, except producing three photo copies, the petitioner has not shown that those documents are genuine, authenticated and reliable. It is in that regard, when the petitioner was even given an opportunity to produce the original of Annexure-A, which is said to be a letter of his alleged acceptance of resignation with the accused No.1-company, the petitioner could not able to produce its original. In such a situation, it was also Crl.P. No.100491/2015 10 open for the petitioner to implead accused No.1-factory also as a co-respondent in the petition and through it could have ascertained about his employment in the factory as on the date of the alleged accident. No effort in that regard was also made by the petitioner. As such, even though ample opportunity was given to him to prove his case of his alleged not being in the employment as a Factory Manger with the first accused as on the date of the accident, the petitioner did not make use of the same and could not even satisfy the Court that he was not in the employment of accused No.1 on the said date.
On the other hand, a perusal of the order sheet would go to show that summons to the accused in the trial court was served upon the present petitioner/ accused No.2 earlier to 01.01.2010 and that he appeared in the trial court on 01.01.2010 and actively participated in the proceedings for about not less than 5 Crl.P. No.100491/2015 11 years. Thus, it is after participating in the trial Court proceedings for about not less than 5 years, he has come up before this Court, for the first time taking up a contention that he was not under the employment of accused No.1. That also gives raise to a doubt of making this Court to accept the argument of the learned High Court Government Pleader that the alleged defence of not being in employment as on the date of the accident taken by the petitioner/accused No.2 would also be a subject matter of trial, provided, he takes such a defence in the trial Court. Thus, the first contention of the petitioner that he was not in the employment of accused No.1-company at the relevant point of time, is not acceptable.
10. Second and the last point of argument of the petitioner was that the occupier would be the Manager of the company for all practical purposes by virtue of Crl.P. No.100491/2015 12 Section 7(4) and 7(5) of the Factories Act. The said provision is re-produced herein below:
"7. Notice by occupier.-
(1) to (3) xxxxxxxx (4) Whenever a new manager is appointed, the occupier shall send to the Inspector a written notice and to the Chief Inspector a copy thereof within seven days from the date on which such person takes over charge. (5) During any period for which no person has been designated as manager of a factory or during which the person designated does not manage the factory, any person found acting as manager, or if no such person is found, the occupier himself, shall be deemed to be the manager of the factory for the purposes of this Act.
11. A reading of the said Section would go to show that no doubt the occupier is under an obligation to send to the Inspector a written notice to the Chief Inspector within seven days from the date on which Crl.P. No.100491/2015 13 there is taking over of charge of the factory and if he fails to do, the occupier himself would be treated as the Manager of the said factory. But the application of the said provision of law will come into operation only where there is change or taking over of the Managerial-ship of the factory. Whereas in the instant case, since the petitioner has failed to convince the Court that there was such a change in the Managerial-ship of the factory as on the relevant date, the said Section 7(4) and 7(5) of the Factories Act would not enure to the benefit of the present petitioner.
12. Lastly, learned counsel for the petitioner placing a photo copy of the order passed by the co- ordinate Bench of this Court in Criminal Petition No.200577/2017 disposed of on 16.06.2017 between Sri.Vishwanath and another and the State of Karnataka, contended that under similar set of circumstances, this Court has quashed the criminal Crl.P. No.100491/2015 14 proceedings as against the petitioners therein, who were also alleged to be the Manager of the factory where it was accused of committing an offence under Section 92 of the Factories Act.
13. I have gone through the said order in its entirety. Though, apparently, the facts may appear to be resembling but a major difference in the said case, is that the Court was fully convinced that the petitioners before it had satisfied the Court through cogent evidence and material that they were not the Manager or the occupier of the factory under any circumstances, as such, the Court proceeded to hold that when they were not the Manager of the said factory, at the relevant point of time, initiation of criminal proceedings against them was bad in the eye of law, whereas, in the instance case, as observed above, the petitioner has utterly failed to convince the court that he was no more a Manager of accused No.1-factory Crl.P. No.100491/2015 15 at the relevant point of time. Thus the said judgment in Vishwanath's case (supra) also would not enure to the benefit of the present petitioner. Resultantly, I am of the clear view that the petitioner has not made out any ground warranting interference by this Court under Section 482 of the Code of Criminal Procedure, 1973.
Accordingly, I proceed to pass the following order.
ORDER The Criminal Petition is dismissed.
sd/-
JUDGE kmv