Bangalore District Court
Factories vs Is Convicted on 25 July, 2022
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KABC030129992008
Presented on : 14-05-2008
Registered on : 14-05-2008
Decided on : 25-07-2022
Duration : 14 years, 2 months, 11 days
IN THE COURT OF THE XXXI ADDL. C.M.M., BENGALURU.
Dated this the 25th day of July 2022.
Present: SRI.SHANKARAPPA B.MALASHETTI
B.com., LL.B.(Spl)
XXXI ADDL. C.M.M., BENGALURU.
C.C. NO. 10637-2008
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 10637/2008
2. The date of commission 22/02/2008
of the offence
3. Name of the Sri.A.Somashekar, Asst.Director of
complainant Factories, Division -1,
II Floor , Karmika Bhavan, Dairy
Circle, Bannerughatta Road,
Bengaluru - 29.
(An Inspector appointed under
section 8(1) of Factories Act, 1948)
4. Name of the accused Sri.K.Thyagaraj,
Occupier/owner of
M/s. Aravind Enterprises.
No.31, 23rd Cross,
Doddanna Indl.Estate,
Peenya II Stage,
Bengaluru - 560 091.
5. The offence complained U/sec.92 of the Factories Act,
of or proved 1948.
6. Plea of the accused and Pleaded not guilty
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his examination
7. Final Order Acting U/sec. 255(2) Cr.PC
Accused is convicted.
8. Date of such order 25/07/2022
For the following:-
9. State represented by: Sr.Asst.Public Prosecutor,
Bengaluru.
10. Accused represented Sri. Advocate, Bengaluru.
by:
JUDGMENT
The Assistant Director of Factories, Bengaluru Division - 1, who is also inspector under the Factories Act has filed the complaint against the accused for the violation of the provisions of Factories Act and Rules and punishable U/sec. 92 of the said Act.
2. The brief facts of the prosecution case are that:
Accused is the Occupier of M/s. Aravind Enterprises, No.31, 23 rd Cross, Doddanna Indl.Estate, Peenya II Stage, Bengaluru - 560 091 and on 24.04.2008 the complainant came to know from a article in Sanjaywani Daily News Paper that an accident has taken place to Smt.Gowramma in the factory of accused on 22.02.2008. Therefore, he along with his subordinate by name Gurulingaswamy went to the accused factory on 25.04.2008 along with the photographer. He found 10 employees working in the said factory and in the said factory the employees busy in moulding Ferrous Foundry . On every 15 days they by using pig iron and cast iron scrap with the aid of electricity, they used to mould the moulten metals into different cast iron products. In the said 3 process, they are using the coke and the electricity. The victim by name Gowramma on 22.02.2008 when she was putting the raw materials such as pig iron and cast iron scrap in a basket when she went near the Cupola Platform, her saree struck in Diesel Engine Generator Flywheel and starter rod, thereby it pulled her legs and she sustained grievous, injuries as a result her left leg has been amputed about the knee and steel rod was fixed to her right leg. Initially she admitted at K.C. General Hospital, Malleshwaram thereafter she admitted to Sanjay Gandhi Institute of Trauma and Orthopedics Hospital, Byrasandra, Bangalore. When the complainant has visited the said factory, he also found that the accused has not obtained prior permission about the blue print regarding building and fixation of machineries. It was also found that the said factory is not registered as per Rule -4(1), it has also not obtained proper license. It has failed to maintain the Muster Role/Wage Register in Form No.22, Register of Adult workers in Form No.11, Accident and Dangerous Occurrence Register in Form No.23 and they also failed to maintain the Inspection Book as per Form No.6, 28 and 29. They also failed to exhibit the notice of period of work per adult worker in Form No.10 . They also failed to keep the First Aid Box, Fire Extinguishers and found said factory was undertaking manufacturing process without obtaining previous permission in writing, not maintained Form No.2, carried on manufacturing process without holding a valid license and thereby he has violated Rule - 21(1) (i),4(1), 4(2), 137(1), 138(1), 4 139(1), 111 and 112, 71(10)(a) of Karnataka Factories Rules 1969 and Section - 45 (1) and (3) of the Karnataka Factories Act, 1948 and punishbalbe u/sec. 92 of the Factories Act.
3. On service of summons, the accused appeared through advocate and enlarged on bail later the plea was recorded he pleaded not guilty and said he has defense to make.
4.In order to substantiate the allegation, prosecution has examined only two witnesses as PW.1 and 2 and got marked the documents as Ex.P1 to P14. On closure of the evidence on the side of the prosecution, the statements of the accused u/sec. 313 Cr.PC came to be recorded. In defense, the accused have placed no evidence.
5. I have heard the arguments from both the sides.
6. The following points that arise for my consideration are:
1) Whether the prosecution proves beyond all reasonable doubt that the accused / occupier of M/s.Aravind Enterprises has not maintained safety measures by putting the safety guard to the diesel engine generator thereby it was resulted in accident to the Smt.Gowramma and thereby accused has committed the offense 5 punishable U/sec. 92 of the Factories Act.?
2) Whether the prosecution proves beyond all reasonable doubt that the accused / occupier of M/s.Aravind Enterprises accused has not obtained prior permission of the building and fixation of the machineries, it has not obtained proper license, it has failed to maintain the muster role/register in Form No.22, it has to failed to maintain the register of adult workers in Form No.11, he has failed to maintain accident and dangerous occurrence register in Form No.23, he failed to maintain inspection book in Form No.6, 28 and 29 , he has failed to maintain a notice of period of work for adult worker in form no.10, he has failed to keep the First Aid Box and Fire Extinguishers in the said factory and thereby accused has committed the offense punishable U/sec. 92 of the Factories Act.?
3) What order?
7. My finding on the above points are held as under:
6 Point No.1 & 2 : In the Affirmative.
Point No.3 : As per final order
for the following:
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REASONS
8. Point Nos.1& 2:-
The above points are inter linked to each other hence, I took the two points together for consideration in order to avoid repeatation.
The complainant is examined as PW.1, he is a retired Asst.Director of Factories. In the chief-examination he deposed that on 24.04.2008 he saw about the article in Sanjaywani daily newspaper, about the accident to Smt. Gowramma at M/s. Aravind Enterprises. So, based on the said report, he along with PW.2 went to the Aravind Enterprises on 25.04.2008 at about 8.00 a.m. he found a labour by name Gunashekar and on enquiry it was revealed that the Gowramma when she was trying to put the coke from a basket to the Cupola, at that time her saree struck in Diesel Generator Flywheel and starter rod, thereby the accident took place, immediately she was shifted to KC General Hospital and thereafter to Sanjay Gandhi Institute of Trauma and Orthopedics Hospital, in the hospital her left leg has been amputed above the knee and steel rod was fixed to the right leg below the knee. Therefore he has prepared the preliminary enquiry report in the spot, taken photographs of the spot with the help of photographer by name Ranganath. Even though there are 10 workers, but they failed to give statements and also refused to receive the Investigation Report. Therefore he went to the house of Gowramma and later he sent preliminary inspection report to the accused by post. Subsequently, he prepared the final inspection report 8 and sent the show-cause notice along with the final report to the accused. He opined that the Diesel Generator Flywheel and starter rod are hazardous and accused has failed to put up a safety guard on the said machines thereby it was resulted in the accident. He also deposed about the violations of the accused about non-obtaining of the prior permission of building and fixation of the machineries, non obtaining of the license and non-registration of the factory, failure to maintain the muster role, wages register and other registers as stated in the complaint thereby the accused has violated rule 138(1), 139(1), 111 , 112 71(10)(a), 45(1) and thereby violated Rule-3. So , he has obtained sanction from the Director of Factories and Boilers and filed the complaint. He has identified the Sanjaywani Daily News Paper dated 24.04.200 , preliminary inspection report, final report and show-cause notice, the postal acknowledgement, reply given by the accused , the statement of the Gowramma, the sanction given by the Director of Factories and boilers, photographs of the factory and the complaint are respectively marked as Ex.P1 to 14.
9.The accused has taken defense that there is no negligence on the part of accused, but it was negligence on the part of the victim, which resulted in the accident. Based on the said defense the counsel for accused has cross-examined the witnesses.
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10.In the cross-examination PW.1 has admitted that, he came to know about the incident from the article in News paper and nobody has submitted complaint personally about the said incident. At the time of his inspection, he came to know about the running of the factory and nature of the work of the said factory. He was not able to meet the owner of the said factory at the time of inspection. He denied the suggestion that the accident took place due to the negligence of the Gowramma. It was also suggested to him that there was a safety guard to the diesel generator and starter, but he denied the same. The counsel for accused has also suggested that the victim has primarily admitted to the KC General Hospital and thereafter to Sanjay Gandhi Institute of Trauma and Orthopedics Hospital and the entire medical expenses has been paid by the accused , for that he pleads ignorance . He denied the suggestion about the taking of precautionary measures by the accused in the said factory. He also said he recorded the statement of Gowramma by visiting to her house. It was also suggested to him that the accused has paid Rs.7 lakhs as compensation to the Gowramma, but he pleads ignorance about the same. In Ex.P4, there is signature of the laborers.
11.Another witness by name Gurulingaswamy is examined as PW.2, in the chief-examination he also deposed that he accompanied with the PW.1 at the time of preliminary inspection and also preparation of preliminary report and refusal of the labors, who are present in the said 10 factory to make their signatures. In the cross-examination he also admitted that, they came to know about the said incident from the article in the newspaper. So, he went along with the PW.1 to the accused factory and also visited the house of Gowramma along with the photographer by name Mohan. He was not able to say how the accident took place. He also reiterated that there is no safety guard in the said factory to the diesel generator and starter and also non-registration of the said factory.
12.The learned Sr.APP has vehemently argued that, the accused has not obtained license under the Factories Act., because the accused undertaking moulding the moultan metal by using pig iron and cast iron scrap and preparing the different cast iron products. It is also alleged that he has not taken safety measures by putting the safety guard to the diesel engine generator and to the starter rod and he also failed to maintain different types of registers as per the provisos of Factories Act as stated in the complaint. Even after advise and show-cause notice, the accused has failed to obtain the license. Therefore, the learned Sr.APP has sought to convict the accused.
13.The advocate for accused has vehemently argued that, the accused has obtained the license, permission, maintained all kinds of registers, safety measures in the factory. There is no negligence on the part of accused in respect of the accident and it was due to the 11 negligence of the victim which resulted in the accident. The accused has also produced the documents such as the payments made by the accused, certified copy of the execution case, the notice sent by accused to the Labour Officer about the accident. Therefore prays to acquit the accused.
14.Before appreciating the materials on record, it is appropriate to peruse the definition of Factory. As per Section 2 (m) of the Factories Act., Factory means any premises whereon 10 or more workers are working or were working on any day of the preceding 12 months in any part of which a manufacturing process is being carried on with the aid or power or is ordinarily so carried on .
15. Keeping in mind of the above said definitions, when the materials of both parties were perused, it is an admitted fact about the accident, but on whose negligence the accident took place is the point to be determined. The accused has taken defense and also suggested to the witnesses that he has put up a safety guard to the diesel engine generator and starter rod of the said machine, but the accused has not at all produced a piece of paper to show that there was safety guard in the diesel engine generator and starter rod . When the prosecution has came with the clear case that due to not taking safety measures and not putting the safety guard the accident took place and when the accident 12 is admitted the onus lies on the accused to show that he has taken proper safety measures and put up the safety guard to the machineries as stated above. In the absence of the documents by the accused, it is crystal clear that it is the negligence on the part of the accused to take safety measures and put up the safety guard to diesel engine generator and starter rod which resulted in accident to the victim Gowramma. Even though the witness summons has been issued several times to the CW.3, i.e., Smt.Gowramma W/oBoregowda, but the concerned police has failed to secure the said witnesses. Even in the absence of evidence of the said witness, the prosecution has proved guilt against the accused beyond reasonable doubt. Because the accident is admitted and the accused is the owner and occupier of the said factory is also admitted fact. Accordingly, my answer to the above point No. 1 is held in the affirmative.
16.Point No.2:- It is also allegation that the accused has failed to maintain the registers viz; Muster Role/Wage Register in Form No.22, Register of Adult workers in Form No.11, Accident and Dangerous Occurrence Register in Form No.23 and they also failed to maintain the Inspection Book as per Form No.6, 28 and 29, Form No.10 and Form No.2. The accused has not at all produced a single piece of documents to show that he has maintained the registers as stated by the complainant . Simply he has taken defense and also suggested to the 13 witnesses that he has maintained all the registers. In the absence of proper documents, the defense of the accused is not sustainable . So, the prosecution has proved beyond all reasonable doubt that the accused has not maintained the proper registers and failed to obtain the license and prior permission from the concerned authorities. Therefore, the point No.2 is held in the affirmative.
17. Point No.3:- Even though as per the documents produced by the accused he has already paid copensation of Rs 5,90,453/-, but any amount of compensation will not bring back the normal life to the victim. So, it is appropriate to award reasonable compensation amount to the victim out of the fine amount. Hence, as per the finding on Point No.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255 (2) of Cr.P.C., the accused is hereby convicted for the violation of Rule - 21(1) (i),4(1), 4(2), 137(1), 138(1), 139(1) , 111 and 112, 71(10)(a) of Karnataka Factories Rules 1969 and Section - 45 (1) and (3) of the Karnataka Factories Act, 1948 and punishbalbe u/sec.
92.
Therefore accused being the occupier/owner of M/s. Aravind Enterprises., is sentenced to pay fine of Rs. 30,000/- for the offence punishable u/sec.92 of the Factories Act. In 14 default of payment of fine, accused shall under go simple imprisonment for 3 months.
It is made clear that, having regard to the provisions of Sub Section (1) of section 421 of Cr.P.C. that, even if the accused undergoes for default sentence, he is not absolved from his liabilities to pay the fine amount.
Bail bond of accused and his surety bond stands cancelled.
Acting U/S 357 (1) Cr.P.C Rs.25,000/- is awarded as compensation to the victim by name Smt. Gowramma, W/o.Boregowda, out of fine of Rs.30,000/- and remaining Rs.5,000/- is to the exchequer of the Government.
Office is directed to furnish free copy of the judgment to the accused forthwith.
(Dictated to the stenographer, directly on the computer, corrected and then pronounced by me in the open court this the 25 th day of July 2022.) (Shankarappa B.Malashetti) XXXI Addl.C.M.M. Bengaluru.
Annexure:
1.List of Witnesses examined on behalf of the prosecution:
P. Ws:
1. Somashekar
2. Gurulingaswamy.
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2.List of Documents marked on behalf of the prosecution:-
Ex.Ps:
1. Sanjaywani Daily News Paper dated 24.04.200
2. Preliminary inspection report,
3. Show-cause notice,
4. Postal acknowledgement,
5. Reply given by the accused ,
6. Statement of the Gowramma,
7. Sanction given by the Director of Factories
8. to 13: Photographs
14. Complaint.
3.List of Material objects marked on behalf of the prosecution:-
-NIL -
4.List of witnesses examined on behalf of the accused:
Dws:- -NIL -
5.List of documents marked on behalf of the accused:
Ex.Ds:- -NIL -
XXXI Addl. C. M. M. Bengaluru.
16
Judgment pronounced in the open court.
(vide separate order):
ORDER
Acting under Section 255 (2) of
Cr.P.C., the accused is hereby
convicted for the violation of Rule -
21(1) (i),4(1), 4(2), 137(1), 138(1),
139(1) , 111 and 112, 71(10)(a) of
Karnataka Factories Rules 1969 and
Section - 45 (1) and (3) of the
17
Karnataka Factories Act, 1948 and
punishbalbe u/sec. 92.
Therefore accused being the
occupier/owner of M/s. Aravind
Enterprises., is sentenced to pay fine of Rs. 30,000/- for the offence punishable u/sec.92 of the Factories Act. In default of payment of fine, accused shall under go simple imprisonment for 3 months.
It is made clear that, having regard to the provisions of Sub Section (1) of section 421 of Cr.P.C. that, even if the accused undergoes for default sentence, he is not absolved from his liabilities to pay the fine amount.
Bail bond of accused and his surety bond stands cancelled.
Acting U/S 357 (1) Cr.P.C Rs.25,000/- is awarded as compensation to the victim by name Smt. Gowramma, W/o.Boregowda, out of fine of Rs.30,000/- and remaining Rs.5,000/- is to the exchequer of the Government.
Office is directed to furnish free
copy of the judgment to the
accused forthwith.
XXXI Addl.C.M.M. Bengaluru.