Karnataka High Court
Ranveer Sinha vs The State Of Karnataka on 13 February, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 10809/2012
BETWEEN:
RANVEER SINHA
AGE: MAJOR,
OCC: MANAGING DIRECTOR,
M/S. TELCO CONSTRUCTION
EQUIPMENT CO., LTD,
TATA MOTORS PREMISES,
TATA NAGAR, JAMSHEDPUR,
JARKHAND STATE. ... PETITIONER
(BY SRI SHRIHARSH A. NEELOPANT FOR SRI ARUN L.
NEELOPANT, ADVOCATE)
AND :
THE STATE OF KARNATAKA
THROUGH ITS SENIOR ASSISTANT DIRECTOR,
OF FACTORIES DIVISION-I, HUBLI,
R/O.UMACHAGI BUILDING, 2ND FLOOR,
COEN ROAD, HUBLI,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD. ... RESPONDENT
(BY SRI V.M. BANAKAR, ADDL. STATE PUBLIC
PROSECUTOR)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE ORDER DATED
12.03.2012 PASSED BY THE I-ADDL. CIVIL JUDGE
(JR.DN.) & JMFC COURT, DHARWAD, IN C.C.NO.125/2012
AS AGAINST THE PETITIONER.
I.A. NO. 1/2014 IS FILED FOR RECALLING THE
ORDER DATED 14.08.2013.
I.A. NO.2/2014 IS FILED FOR EXTENSION OF
INTERIM ORDER.
THIS PETITION A/W. I.As. COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel for the petitioner and learned Additional State Public Prosecutor for respondent - State. Perused the records.
2. This petition is filed calling in question the cognizance taken by I Addl. Civil Judge (Jr.Dn.) & J.M.F.C., Dharwad in C.C. No.125/2012, against the petitioner and another for the offences punishable under Sections 7-A(2) (a) and 7-A(2) (c) of the Factories Act, 1948 and Rule 83 of Karnataka Factories Rules, 1969.
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3. The short question raised by learned counsel for petitioner before this Court is that the petitioner is arrayed as accused No.1 and his designation is shown as Managing Director and Occupier of M/s. TELCO Construction Equipment Company Limited. The accused No.2 - Mr.Rapaka Eswara Rao is shown as Factory Manager of M/s. TELCO Construction Equipment Company Limited.
4. The learned counsel for petitioner strenuously contends that though the accused No.1 / petitioner is shown as Managing Director and Occupier, in fact he is not the occupier of Company and does not manage the affairs of Company. The day-to-day business of Company is looked after by accused No.2 and he is the person, who is to be defined as an Occupier as he has ultimate control over the affairs of the Company. Therefore, the complainant ought not to have made accused No.1 as a party to the proceedings. The learned counsel has drawn my attention to 4 the provisions of Factories Act. The Factories Act under Section 2(n) defines the "occupier" as follows-
(n) "Occupier" of a factory means the person who has ultimate control over the affairs of the factory.
[Provided that -
(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors, shall be deemed to be the occupier;
(iii) in the case of a factory owned or controlled by the Central Government, or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as 5 the case may be, shall be deemed to be the occupier.] [Provided further that] in the case of a ship which is being repaired, or on which maintenance work is being carried out, in a dry dock which is available for hire,-
(1) The owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for, by or under -
(a) Section 6, Section 7, [Section 7-A, Section 7-B], Section 11 or Section 12;
(b) Section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;
(c) Section 18, Section 19, Section 42, Section 46, Section 47 or Section 49, in relation to the workers employed on such repair or maintenance;
(2) The owner of the ship or his agent or master or other officer-in-charge of the ship or any person who contracts with such owner, agent 6 or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under section 13, section 14, section 16, or section 17 (save as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to -
(a) the workers employed directly by him, or by or through any agency; and
(b) the machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in- charge or person;]
5. The said provision is also attached with certain provisos. The second proviso to the said provision describes, in the case of a company, any one of the directors, shall be deemed to be the occupier. It appears, by means of invoking 7 the deeming clause the accused No.1 -Managing Director has been made as one of the accused in the above said case. In order to establish that the accused No.2 is the person, who has ultimate control over the affairs of the Factory some materials should be produced before the Court to show that the entire responsibility and the ultimate control over the company or the factory has been transferred in favour of accused No.2. Till that point of time, in view of the deeming provisions one of the Directors of the Company is to be held liable for the illegal acts alleged to have been committed in the Factory. In this regard, it is worth to note a decision of the Hon'ble Supreme Court, which is reported in -
1961 -II- LLJ - 412 (SC) between John Donald Mackenzie and Another vs. Chief Inspector of Factories, Bihar and Others.
The Hon'ble Supreme Court has specifically held that - 8
The expression "Occupier" is not to be equated with the "owner", but it must be borne in mind that the ultimate control over a factory must necessarily be with an owner unless the owner has completely transferred that control to another person. It is for the company who contend that the manager of the Factory had the ultimate control of the factory, to lay before the Chief Inspector of Factories the necessary material for showing that the Company had in some manner transferred the entire control over the factory to the manager.
6. In view of the above said ruling, it is incumbent upon the accused No.1 to produce necessary documents to show that the entire ultimate control of the Factory has been transferred by means of execution of a document or by means of passing a resolution by the Company. Unless such materials are shown to the Court, the complainant cannot find fault by this petitioner in arraying him as one of the accused.
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7. In view of the above said discussions, it is open to accused No.1 to produce such necessary documents, if available to show that the accused No.2 is the sole occupier of said Factory premises or the Company. In that event, the Magistrate has to consider the said documents and pass appropriate orders. Petitioner is at liberty to file necessary application for discharge, if so advised. If such an application is filed, the same may be disposed of in accordance with law. With these observations, petition stands disposed of.
In view of disposal of main petition, interim applications do not survive for consideration.
Sd/-
JUDGE hnm/