Gujarat High Court
Life Line Foundation Throu Authorised ... vs State Of Gujarat on 20 April, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/18425/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18425 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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LIFE LINE FOUNDATION THROU AUTHORISED REPR ROOCHITA
PRANAV DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR JAL UWALA, SENIOR ADVOCATE FOR MS TEJAL A VASHI(2704) for
the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 20/04/2020
CAV JUDGMENT
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs :
Page 1 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT"(a) This Hon'ble Court may be pleased to issue any appropriate writ, order or direction declaring the impugned order/action dated 05.07.2017 at AnnexureA hereto as being violative of Article 14, against the mandate of section 45(3) of the Factories Act, thereby be pleased to quash and set aside the impugned order at AnnexureA hereto.
(b) Pending the hearing and final disposal of this writ petition, be pleased to stay the operation, implementation and execution of the impugned order dated 572017 at AnnexureA to the present petition passed by the respondent no.2
(c) To grant any other appropriate and just relief/s.
2. Brief facts of the case are that petitioner is a trust registered under the Bombay Public Trusts Act, 1950 on 9 th April, 2002 having various projects like Highway Rescue Project having medical appliances bank, providing medical services, imparting CPR (CardioPulmonary Resuscitation) and first aid training, conducting workshops and hosting conferences on emergency medical services, industrial emergence services. etc. The petitioner trust is having a governing body which consists of 17 members and also consists of an Advisory Board of 10 members and the Advisory Board consists of a panel of advisor who provides support to expand the trust's activity. The petitioner's activities are not limited to India but also spread across South Asian subcontinent.
2.1) The petitioner trust initiated the project to train 40% of Vadodara's adult citizen in CPR (CardioPulmonary Resuscitation) and First aid project titled "Vadodara, A Smart City, A CPR City" and has trained 4500+ employees Page 2 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT of Vadodara Municipal Corporation in order to empower bystanders to save lives. The petitioner trust is also recognized by American Heart Association to conduct CPR and first aid training. Apart from nonprofit services rendered by the petitioner to the common man, one of the important activities undertaken by the petitioner is to provide first aid training/ education to numerous factories and institutions.
2.2) It is the case of the petitioner that between the years 2003 to 2011, the petitioner trust was imparting and conducting training porgrammes for first aid in various other institutions other than industrial institutions. The petitioner trust decided to expand its horizon and also give and impart and conduct such educational training programme and also be authorised and recognized to issue necessary certificate under the provisions of the Factories Act, 1948 ("the Act" for short) to certain industries/factories so as to create medical first aid awareness by providing medical training to all industrial establishments. Accordingly, the petitioner on 23rd September, 2011 made an application before the respondent no.4 - Director of Industrial Safety and Health for getting necessary recognition/certificate for conducting, providing and rendering first aid medical training to various industrial establishments so as to issue certificate of first aid training under the provisions of section 45(3) of the Act.
2.3) Pursuant to said application, inspection of the petitioner trust as carried out by the respondent no.5 Page 3 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT Joint Director, Industrial Safety and Health on 1 st March, 2012. The petitioner also furnished necessary documents along with letter dated 03.04.2012 as required by the respondent no. 5 vide letter dated 15th March, 2012.
2.5) Thereafter, on 19 th August, 2014, Department of Labour and Employment through its Section Officer accorded permission to respondent no.4 to grant recognition/certificate to the petitioner trust on the basis of opinion of D.F.S. L., Mumbai and after considering the facilities and study material available with the petitioner for giving training in first aid so as to issue certificate for training in first aid as per the provisions of section 45(3) of the Act.
2.6) Pursuant to the order/communication dated 19 th August,2014, respondent no.4 granted
recognition/certificate to the petitioner by order dated 15 th October, 2014 stipulating various terms and conditions so as to issue certificate in accordance with the provisions of section 45(3) of the Act.
2.7) Thereafter, the respondents herein issued a show cause notice to the petitioner trust calling upon the petitioner to provide all necessary details of the training conducted by the petitioner trust and accordingly, the petitioner trust by its communication dated 13 th January, 2015 submitted its quarterly report with all necessary documents to respondent no.4.
2.8) It is the case of the petitioner that vide Page 4 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT order/communication dated 29 th September, 2015, the Labour and Employment department without any opportunity of hearing or without calling upon the petitioner trust to show cause or explain or justify and without jurisdiction and power, cancelled the recognition/certificate granted to the petitioner under section 45(3) of the Act.
2.9) The petitioner trust therefore, approached this Court by filing Special Civil Application No.17176/2015 challenging the notice dated 29 th September, 2015. This Court (Coram : Hon'ble Mr. Justice R.M. Chhaya) vide order dated 4th March, 2016 allowed the petition and remanded the matter back to the respondent authorities for deciding the same afresh after giving opportunity of hearing to the petitioner.
2.10) It is the case of the petitioner that respondent no.1 issued show cause notice dated 2nd April, 2016 to the petitioner which was received by the petitioner on 5 th April, 2016 calling upon the petitioner to show cause within 10 days as to why the recognition/certificate of the petitioner trust should not be cancelled. The petitioner addressed a communication dated 6th April 2016 stating that it would submit its response within 10 days. The hearing took place on 11 th April, 2016 and the petitioner submitted written submissions on the same day to the respondent authorities. It is the case of the petitioner that hearing was done by the respondent no.1 Principal Secretary whereas order was passed by respondent no.2 who has neither heard the petitioner nor had an occasion to deal with any Page 5 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT of the submissions made by the petitioner and thus the impugned order is passed without complying the order passed by this Court in its true letter and spirit.
2.11) It is the case of the petitioner that from 2016 till 31 st August, 2018, the petitioner was not informed as to what was the outcome of the hearing which took place in the office of the respondents in the year 2016. The petitioner on various occasions telephonically inquired about the same from the authorities but did not get any response and all the training programs of the petitioner were getting cancelled. The petitioner was served with the impugned order dated 5th July, 2017 on 31 st August, 2018 when the petitioner went to inquire with the respondents about the same.
2.12) It is the case of the petitioner that in compliance of terms and conditions of the order dated 15.10.2014, the petitioner submitted its reports from time to time to the respondent authorities and no fault was found from such reports. It is also the case of the petitioner that in various other States, the State Governments have permitted various private institutions like the petitioner to carry on the activities of imparting training in first aid so as to issue certificate under section 45(3) of the Act. Being aggrieved by the impugned order, the petitioner has preferred this petition with aforesaid prayers.
3. Learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Ms. Tejal Vashi for the petitioner submitted that the impugned order passed by the Page 6 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT respondent no.2 Deputy Secretary, Labour and Employment department is required to be set aside only on the ground that hearing was done by the Principal Secretary of the Labour and Employment department i.e. respondent no.1 whereas order is passed by respondent no.2 who never heard the petitioner. It was therefore, submitted that on perusal of the impugned order, it is clear that none of the submissions made by the petitioner is recorded, resulting into an order passed without application of mind.
3.1) Learned Senior Counsel submitted that the impugned order is passed only on the basis of the opinion rendered by the Legal department without taking into consideration the provisions of section 45(3) of the Act in its true perspective. It was submitted that copy of legal opinion was not given to the petitioner which has resulted into violation of principles of natural justice.
3.2) It was submitted that respondent no.2 has proceeded on the presumption that it is the institution/ organisation/ body/ individual which requires necessary recognition by the State Government for the purpose of issuing certificates for first aid treatment by misinterpreting the provisions of section 45(3) of the Act which provides for first aid box or cupboard to be kept in charge of a separate responsible person who holds certificate in the first aid treatment recognised by the State Government. It was therefore, submitted that there is no provision under the Act for giving recognition to any institution or organisation. It was therefore, pointed out that the petitioner who is Page 7 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT imparting first aid training, conducting workshops and giving emergency medical services, applied for getting necessary recognition/certificate for conducting, providing and rendering first aid training to various industrial establishments so as to issue certificate of training in first aid treatment under the provisions of section 45(3) of the Act. The respondent no.4 - Director of Industrial Safety vide order dated 15 th October, 2014 granted permission to the petitioner to impart training in first aid pursuant to the order of the Labour and Employment department dated 19.08.2014 so as to issue certificate in accordance with the provisions of section 45(3) of the Act. However, by order dated 29 th September, 2015 and without cancelling the order dated 19.08.2014, the permission granted to the petitioner was cancelled and after the matter was remanded by this Court vide order dated 4th March, 2016 in Special Civil Application No. 17176/2015, the impugned order was passed by respondent no.2 only on the basis of opinion of the Legal department. It was therefore, submitted that the impugned order is liable to quashed and set aside.
4. On the other hand, learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondents submitted that respondent no.2 has passed the impugned order dated 5 th July, 2017 is passed not only for the petitioner trust but for cancellation of recognition under section 45(3) of the Act given to all the private training centres for first aid treatment. It was submitted that on perusal of the provisions of section 45(3) of the Act, the question arose as to whether the Labour and Employment department can Page 8 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT give recognition to the private institutes like the petitioner for giving training of first aid treatment to issue certificated or not? The State Government therefore, obtained the opinion from the Legal department and on the basis of the opinion rendered by the Legal department, recognition given by the Labour and Employment department to such private institutions was cancelled vide order dated 29 th September, 2015. It was submitted that thereafter, various writ petitions were filed before this Court and this Court remanded the matter back to the authorities and after giving opportunity of hearing to the petitioner and other institutions, the impugned order is passed after considering the submissions made by the petitioner and similarly situated institutions. It was therefore, submitted that the contention raised by the petitioner that no opportunity of hearing is given to the petitioner is without any basis.
4.1) Learned Assistant Government Pleader further submitted that as per the opinion rendered by the Legal department only the State Government is authorised to give recognition under the law and therefore, certificate issued by the private institutions cannot be recognised as per the provisions of the Act which would otherwise amount to alter the provision of the Act by any administrative instruction or circular or resolution of the State Government. In other words, it was submitted that if the private institutions are allowed to issue certificate which are to be recognised as per the provisions of section 45(3) of the Act, it would amount to amending the provisions of section 45(3) of the Act.
Page 9 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT4.2) It was therefore, submitted that as the impugned order is passed in accordance with the provisions of the Act and no interference is required to be made while exercising powers under Articles 226 and 227 of the Constitution of India.
5. Having heard the learned advocates for the respective parties and having gone through the material on record, short question which arises for consideration is whether the permission/recognition given to the petitioner trust by the Director of Industrial Safety and Health for imparting training in the first aid treatment to issue certificate of training in first aid treatment is in accordance with the provisions of section 45(3) of the Act or not.It is therefore, germane to refer to the provisions of section 45 of the Act, which reads as under :
"45. Firstaid appliances.
(1) There shall in every factory be provided and maintained so as to be readily accessible during all working hours firstaid boxes or cupboards equipped with the prescribed contents, and the number of such boxes or cupboards to be provided and maintained shall not be less than one for every one hundred and fifty workers ordinarily employed at any one time in the factory.
(2) Nothing except the prescribed contents shall be kept in a firstaid box or cupboard.
(3) Each firstaid box or cupboard shall be kept in the charge of a separate responsible person who holds a certificate in firstaid treatment recognised by the State Government and who shall always be readily available during the working hours of the factory (4) In every factory wherein more than five hundred workers are ordinarily employed there shall be provided Page 10 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed and those facilities shall always be made readily available during the working hours of the factory."
6. On perusal of the above provisions of section 45 of the Act which provides for first aid appliances so as to be readily available and accessible for the purpose of first aid treatment in factory. Subsection(1) stipulates that one first aid box or cupboard is required to be provided and maintained for every one hundred and fifty workers ordinarily employed at any point of time in the factory. Subsection(2) provides that only the prescribed contents are to be kept in a firstaid box or cupboard. Subsection (3) stipulates that each firstaid box or cupboard is required to be kept in the charge of a separate responsible person who holds a certificate in firstaid treatment recognised by the State Government and he should be available during the working hours of the factory. Sub section (4) is for the factory employing more than 500 employees. Thus, sub section (3) only provides that person in charge of first aid box or cup board should possess certificate of training in first aid treatment recognised by the State Government, however, it does not stipulate that such certificate cannot be issued by any private institute which is recognised by the state Government for imparting training in the first aid treatment.
7. The petitioner trust was granted recognition by order dated 15 th October, 2014 by the Director of Industrial Safety and Health as first aid training centre on the basis of permission granted by the Department of Labour and Employment vide order dated 19th August, 2014 to grant Page 11 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT recognition/certificate to the petitioner trust for giving certificate as per the provisions of section 45(3) of the Act.
8. On perusal of the permission granted by the Labour and Employment department of the State of Gujarat dated 19 th August, 2014, it appears that opinion was obtained from D.G.F.S. Ltd. Mumbai for interpretation of section 45(3) of the Act and it was opined that recognition may be given to the petitioner trust for giving training in the first aid treatment. It is also revealed from the permission granted by the Labour and Employment department dated 19 th August, 2014 that the petitioner trust has facilities for imparting first aid training which includes training room of 100 sq mtrs, LCD projector, Laptop, director projector, slide projector, black board, stretchers, white board, first aid box etc. It is also stated in such permission that there is also facility for separate sanitation for male and female and facility for drinking water. It also records that service of five doctors is available for imparting first aid training and necessary guidance book for training which is equivalent to syllabus of D.G.F.S. Ltd. is also available. Thus when the Labour and Employment department granted permission to the Director of Industrial Safety and Health to issue recognition to the petitioner for imparting training in the first aid, unless and until such permission is cancelled, the recognition granted by the Director of Industrial Safety and Health could not have been cancelled.
9. On perusal of the impugned order, it appears that the Legal department has submitted an opinion that as section 45(3) of the Act provides for a responsible person to hold Page 12 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT the certificate in first aid treatment recognised by the State Government and certificate issued by the private institution who are recognised by the Labour and Employment department cannot be considered as a certificate in first aid treatment recognised by the State Government and therefore, recognition given to the private institutions like the petitioner trust for imparting first aid training and issuing the certificate is cancelled. Such interpretation of section 45(3) of the Act is not emanating from the plain reading of subsection(3) of section 45 of the Act. The Labour and Employment department of the State Government has granted permission to give recognition to the petitioner for imparting training in the first aid treatment and therefore, the certificate issued by the petitioner trust is required to be considered as certificate in the first aid treatment recognised by the State Government. The provisions of subsection (3) of section 45 does not stipulate that the certificate in first aid treatment is to be issued by the State Government. It only provides that certificate in the first aid training treatment should be recognised by the State Government. In such circumstances, when the State Government has permitted the Director of Industrial Safety and Health to issue the permission/recognition to the petitioner institute to issue certificate on completion of training in first aid treatment, it would be in compliance of subsection(3) of section 45 of the Act. Therefore, the contention raised by the learned Assistant Government Pleader relying upon the observations made in the impugned order on the basis of the opinion of the legal department that the "certificate in the first aid treatment recognised by the State Page 13 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021 C/SCA/18425/2018 CAV JUDGMENT Government" would mean only the certificate issued by the State Government and certificate issued by private institution cannot be considered though such institution is recognised by the State Government in compliance with the provisions of section 45(3) of the Act, is without any basis. The contention that permitting the recognition to private institutions to issue certificate for imparting first aid training would amount to altering or amending the provisions of section 45(3) of the Act is also not tenable in law on the simple ground that section 45(3) of the Act does not provide that a person must hold certificate in first aid treatment issued by the State Government. Subsection(3) of section 45 of the Act only provides for certificate in first aid treatment which is recognised by the State Government. Therefore, if such certificate is issued by private institutions like the petitioner recognised by the Labour and Employment department of the State Government to give training in first aid treatment, then the certificate issued by such private institution would be equivalent to certificate in first aid treatment recognised by the State Government.
10. In view of the foregoing reasons, the impugned order dated 5th July, 2017 passed by respondent no.2 is required to be quashed and set aside. The petition succeeds and is accordingly allowed. Impugned order dated 5th July, 2017 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 14 of 14 Downloaded on : Tue Feb 16 05:35:36 IST 2021