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2000 DIGILAW 232 (PAT)

J. L Mehta v. State Of Bihar

2000-02-10

G.S.CHAUBE

body2000
Judgment G.S.Chaube, J. 1. The only moot question of law involved in the abovemen-tioned applications under Section 482 of the Code of Criminal Procedure is whether the premises or precincts of an administrative office of a company or any Institution where diesel generating set(s) are installed for generating energy (electricity) for the use in the office premises during load-shedding by the State Electricity Board, is a factory to attract the provisions of the Factories Act, 1948 (in short, the Act) and Bihar Factories Rules, 1950 (in short, the Rules) requiring registration of the premises as such with incidental obligation of maintaining certain Registers, etc., more particularly, as required under Rules 85, 86, 87 and 104 of the abovementioned Rules, so that non-compliance therewith attracts the penal provision of Section 92 of the Act? 2. The short facts giving rise to these applications are that on 29.8.97 Sri Gopal Kumar, the Factories Inspector of Ranchi Circle No. II visited Darbhanga House in the town of Ranchi wherein the administrative office of the Central Coalfields Ltd. is located, and found that as many as 6 power generating sets of 970 KVA and 2 transformers of 750 KVA were functioning. He also learnt that as many as 13 persons were employed by the company for operating those power generating sets, the break up being 3 foremen, 3 helpers and 7 others meant for cleaning those sets. He asked for registration certificate, but the same was not produced as the premises was not registered as a factory with the Chief Factories Inspector. On demand, Registers of Adult workers, Notice regarding working hours of Adult workers, Register respecting leave with wages, and Accident Register were also not produced. The premises was also not approved by the then Factories Inspector in accordance with the provisions of the Act and the Rules. At the relevant time, the petitioner in Crim. Misc. no. 1743/98R and 3350/98R was posted as Director (Technical P & P); whereas the other petitioners, namely, J. L. Mehta and K. P. Sinha were posted as Chief General Manager and Chief General Manager (Administration) respectively, who are petitioners in Crim. Misc. no. 1685/98R and 3611/98R. When the Factories Inspector (opposite party no. Misc. no. 1743/98R and 3350/98R was posted as Director (Technical P & P); whereas the other petitioners, namely, J. L. Mehta and K. P. Sinha were posted as Chief General Manager and Chief General Manager (Administration) respectively, who are petitioners in Crim. Misc. no. 1685/98R and 3611/98R. When the Factories Inspector (opposite party no. 2, in all the four applications) found that the premises where power generating sets were installed and were functioning at the time of his visit/inspection and Registers mentioned above were not produced, he served the petitioners with a copy of the inspection report dt. 3.10.97 requiring them to get the premises registered and plans respecting thereof approved. When the directions given by the Factories Inspector were not complied with, a reminder dt. 21.10.97 was also sent. In the meantime, the petitioners initially sought some time for compliance with the directions regarding approval of the plan of the premises where power generating sets were installed, but ultimately they sent a letter dt. 16.10.97 asserting that the premises does not fall within the definition of a factory as defined under the Factories Act. Therefore, they were not liable to get the same registered and plans etc. approved. When the directions of opp. party no. 2 were not complied with, he filed two written complaints against the petitioners in the court of the Chief Judicial Magistrate of Ranchi one on 25.11.97 for their prosecution under Section 92 of the Act for violation of the provisions of Section 6 of the Act and Rules 4, 5 and 10 of the Rules. In that complaint, petitioner Balaswamy Akala, the Director (Technical P & P) was arrayed as accused no. 1 while petitioners J. L. Mehta and K. P. Sinha were arrayed as accused nos. 2 and 3. Another written complaint dt. 27.11.97 was filed for the prosecution of the petitioners under Section 92 of the Act for violation of the provisions of Rule 102 of the Rules. In that complaint also petitioners Balaswamy Akala, J. L. Mehta and K. P. Sinha were arrayed as accused nos. 1, 2 and 3. The complaint petition dt. 25.11.97 was registered as case no. C lll-285/97; whereas complaint dt. 27.11.97 was registered as case no. C III-286/97. 3. By two separate orders dt. 28.11.97, the Chief Judicial Magistrate took cognizance of offence under section 92 of the Act in both the cases against the petitioners. 1, 2 and 3. The complaint petition dt. 25.11.97 was registered as case no. C lll-285/97; whereas complaint dt. 27.11.97 was registered as case no. C III-286/97. 3. By two separate orders dt. 28.11.97, the Chief Judicial Magistrate took cognizance of offence under section 92 of the Act in both the cases against the petitioners. To quash the order taking cognizance as well as the entire criminal proceeding in both the cases referred to above, these applications have been presented under Section 482 of the Code of Criminal Procedure. Crim. Misc. no. 1685/98R and 1743/98R are for quashing the proceedings in Case no. C III 286/97; whereas for quashing the proceedings in case no. C III 285/97 Crim Misc. nos. 3350/98R and 3611/98R have been presented. 4. The case of the petitioners is that the premises or precincts whereat power, generating sets are installed, cannot be treated as factory in view of the fact that therefrom power is generated for use in: the office only during load shedding resorted to by the State Electricity Board. As a matter of fact, for the purposes of drawing electricity they have taken HI connection from the Bihar State Electricity Board for its headquarters situated at Darbhanga House, Ranchi and only when there is failure of electricity by the State Electricity Board, the generating sets are used for supply of electricity to the headquarters building in question. They have also asserted that the allegation of opp. party no. 2 that as many as 13 workers are employed for operating those power generating sets is incorrect. As a matter of fact, only three operators have been employed for working during each of three shifts and there are 3 category mazdoors. Even though employed for other purposes, their services are utilised for cleaning the generator sets. On these grounds, they have contended that even if the allegations made by opp. party no. 2 in the twin complaint petitions are taken as true, no offence under Section 92 of the Act is made out. Therefore, to permit the proceedings against them to continue shall be abuse of the process of the court. Therefore, it is contended that proceedings in both the cases are liable to be quashed in exercise of inherent power vested in this court under Section 482 of the Code of Criminal Procedure. Therefore, to permit the proceedings against them to continue shall be abuse of the process of the court. Therefore, it is contended that proceedings in both the cases are liable to be quashed in exercise of inherent power vested in this court under Section 482 of the Code of Criminal Procedure. In reply to the applications of the petitioners, counter affidavits have been filed by and on behalf of opposite party no. 2 supporting the allegations made in the complaint petitions. 5. Section 92 of the Act provides for penalty for offences. According to this section, save as is otherwise expressly provided in the Act and subject to the provisions of Section 93, if any, or in respect of, any factory there is any contravention of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of the offence and punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued. Therefore, for prosecution under section 92 of the Act, contravention of one or the other provision (s) of the Act and Rules made thereunder is to be shown to have been contravened by the accused. It is noticed that complaint C-lll 285/97 had been filed for prosecution of the accused-petitioners under Section 92 of the Act for contravening the provisions of Section 6 of the Act as well as Rules 4, 5 and 10 of the Rules. It is noticed that complaint C-lll 285/97 had been filed for prosecution of the accused-petitioners under Section 92 of the Act for contravening the provisions of Section 6 of the Act as well as Rules 4, 5 and 10 of the Rules. Section 6 of the Act provides that the State Govt, may make rules requiring for the purposes of this Act, the submission of plans of any class or description of factories to the Chief Inspector of the State Govt, requiring the previous permission in writing of the State Govt, or the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction or extension of any factory or class or description of factories; requiring for the purpose of considering applications for such permission the submission of plans and specifications; prescribing the nature of such plans and specifications and by whom they shall be certified; requiring the registration and licensing of factories or any class or description of factories, and prescribing the fees payable for such registration and licensing and for the renewal of licences; and requiring that no licence shall be granted or renewed unless the notice specified in Section 7 has been given. 6. Rule 4 of the Rules provides for registration and grant of licence. According to this rule, no manufacturing process shall be started or carried on in any factory unless a licence in respect thereof has been granted by the Inspector of Factories and the same is valid for the time being. Rule 5 provides for grant of licence, and pending grant of such licence, the Inspector of Factories of the area concerned may grant permission to start to carry on work in the factory subject to conditions as the Inspector of Factories may specify in writing. Rule 10 is in respect of fee payable on every application under the Rules, whether for licence or renewal thereof. Complaint no. C III 286/97 has been filed for contravention of Rule 102 of the Rules. The said rule states that the occupier, owner or manager of a factory shall furnish any information that an Inspector may require for the purpose of satisfying himself whether any provision of the Act or Rules thereunder has been complied with or whether any order of an Inspector has been duly carried out. The said rule states that the occupier, owner or manager of a factory shall furnish any information that an Inspector may require for the purpose of satisfying himself whether any provision of the Act or Rules thereunder has been complied with or whether any order of an Inspector has been duly carried out. Any demand by an Inspector for any such information, if made, during the course of an inspection, shall be complied with forthwith if the information is available in the factory, or, if made in writing, shall be complied with within seven days of receipt thereof. If not so complied, naturally a contravention occurs and the mischief of Section 92 of the Act comes into play. In the complaint it has been stated that the accused petitioners did not furnish on demand notice requiring working hours of adult workers, Register of Adult workers, Register of Leave with wages and Accident Register. Rule 104 enjoys for maintaining in every factory a Register of Accident in form no. 23; whereas Rule 87 requires that the Manager shall keep a register in form no. 15 to be called "leave with wages register". 7. Throughout the Rules I could not notice any provision requiring maintenance of notice regarding working hours of adult workers and register of adult workers. In fact, Rule 85 requires that notice of periods of work of child workers shall be maintained in Form no. 13 in the manner prescribed in sub-section (2) of Section 108 of the Act; whereas Rule 86 requires maintaining and keeping of a register of child workers. What the Inspector of Factories (opp. party no. 2) has mentioned in the inspection report and the complaint petition ia "Vayask Kamgaro Ki Panji" meaning thereby register of adult workers as opposed to child workers, and "Vayask Shramiko ka Karyakal ki Suchna" meaning thereby a notice of period of work for adult (notchild). 8. In order that provisions of the Act and Rules made thereunder come into play, it is necessary that the premises or precincts where manufacturing process is carried is a factory within the meaning of the Act. The term factory has been defined in Section 2 (m) of the Act. 8. In order that provisions of the Act and Rules made thereunder come into play, it is necessary that the premises or precincts where manufacturing process is carried is a factory within the meaning of the Act. The term factory has been defined in Section 2 (m) of the Act. According to this definition factory means any premises including the precincts thereof (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place. According to! Explanation I : for computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account. 9. In order that a premises including precincts thereof constitutes a factory; one of the essential ingredients is that 10 or more workers should be working and taking part in a manufacturing process carried on with the aid of power. In the present case, allegation is that power was being generated by using diesel generator sets. Therefore, the present case falls within the first part of the definition of factory. According to the complainant, 13 persons were employed for running or operating the diesel sets. Petitioners say that there were only 5, 3 employed as diesel generator operators and 2 were doing the job of cleaning the sets casually. In his counter affidavit, opposite party no. Therefore, the present case falls within the first part of the definition of factory. According to the complainant, 13 persons were employed for running or operating the diesel sets. Petitioners say that there were only 5, 3 employed as diesel generator operators and 2 were doing the job of cleaning the sets casually. In his counter affidavit, opposite party no. 2 has annexed a copy of notification dated 24.1.85 issued by the State Govt, in exercise of power conferred under subsection (1) of Section 85 of the Act to the effect that the provisions of the Act and the Rules made thereunder specified in schedule X annexed thereto shall apply to any place in the State of Bihar wherein manufacturing process specified in Schedule Y annexed thereto is carried on with the aid of power or is so ordinarily carried on, notwithstanding that the number of persons employed therein is less than 10 and the persons working therein are not employed by the owner, but are working with the permission of or under the agreement of such owner. Schedule X includes Chapter I and II of the Act and generation and conversion of electricity excluding transformation by State transformers is one of the manufacturing processes mentioned in Schedule Y of the notification in respect of which the requirement of number of persons has been done away with. In other words, after the issuance of notification dt. 24.1.85, even if the number of workers employed is less than 10 where the manufacturing process is being carried on with the aid of power, the premises or precincts wherein such manufacturin process is being carned on is a factory. However, the disputed question like the present one regarding the number of workers employed for the manufacturing process in question is beyond the scope of section 482 of the Code of Criminal Procedure. The law is well settled that such discretionery power can be exercised by the court to put a criminal proceeding to nought, only if facts stated in the petition of complaint do not constitute the offe.nce with which the accused is charged. In the present case, allegation is that 13 persons were employed for operating the power generating sets and petitioners states that the number was only five. In the present case, allegation is that 13 persons were employed for operating the power generating sets and petitioners states that the number was only five. If the fate of these applications were to hinge on this question alone, namely, whether the number of workers was 13 or 5, certainly they are to be dismissed. 10. However, as stated earlier, the moot question is whether the premises or precincts thereof where power generating sets are installed is a factory. I have already reproduced the definition of factory, according to which manufacturing process with the aid of power is to be carried on. Section 2 (k) of the Act defines the term manufacturing process which, inter alia, means any process for generating, transforming or transmitting power. Power has been defined in the Act as electrical energy or any other form of energy which is mechanically transmitted and is not generated by human or animal agency, section 2 (g)]. The term 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 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. [Section 2 (1)]. 11. It is not disputed that in the premises of the administrative office building of Central Coalfields Ltd. of which the petitioner Balaswamy Akala was the Director (Technical P & P) and petitioners J. L Mehta and K. P. Sinha were Chief General Manager and Chief General Manager (Administration) respectively, at the relevant time, manufacturing process of generating energy with the aid of power was being carried on and for that purpose certain workers, may be 5 according to the petitioners or 13 according to the Factories Inspector, were working. However, in order that the premises including the precincts thereof wherein manufacturing process is being carried on with the aid of power is a factory, it is essential that such manufacturing process is ordinarily carried on. The term ordinarily has not been defined in the Act. However, in order that the premises including the precincts thereof wherein manufacturing process is being carried on with the aid of power is a factory, it is essential that such manufacturing process is ordinarily carried on. The term ordinarily has not been defined in the Act. However, the word ordinarily in the context of manufacturing process in a factory means regularly or habitually and not casually whether it be for a larger or smaller portion of the day. In other words, the manufacturing process in order to make the premises including the precincts thereof wherein it is being carried on, a factory, must be shown to be carried on in a systematic and regular manner and not only casually. 12. In the instant case, the plea of the petitioners is that for the purposes of use of electricity in the administrative building of the company, they have taken connection from Bihar State Electricity Board. In other words, for the use in the office, energy is primarily drawn from the supply line of Bihar State Electricity Board. It is common knowledge that the position of supply of electricity in the State is very poor. Very often, the Board resorts to load-shedding. In order to obviate the difficulty in the office work due to non-availability of electricity at times the Management appears to have installed some diesel generating sets so that the office work is not hampered. One can take judicial notice of the fact that this alternative arrangement is made almost in each and every office worth its name. The sole purpose is that when lines of electricity Board trip or there is a load-shedding due to any reason, power is generated through diesel generating sets for the purposes of light and air, etc., and for no other purpose like trade or commercial purposes. In my opinion, such mode of manufacturing process cannot be considered to be carried on ordinarily so as to bring the premises within the definition of factory in clause (m) of Section 2 of the Act. In my opinion, such mode of manufacturing process cannot be considered to be carried on ordinarily so as to bring the premises within the definition of factory in clause (m) of Section 2 of the Act. If the part of the administrative office building of the company of which the petitioners are said to be the Director, Chief General Manager and Chief General Manager (Administration) is not a factory for the reasons that manufacturing process in the form of generation of power with the aid of diesel generating sets was only a casual affair, there is no question of the same being registered with the Chief Inspector of Factories or Inspector of Factories with obligations to get the plans, etc., approved and maintain the registers as required under Rules 85, 86, 87 and 104 of the Rules in compliance with the direction given by the opp. party no. 2, the Factories Inspector who chanced to visit the said building on 29.8.97. If the premises in question is not a factory, the provisions of the Act and Rules made thereunder are not applicable thereto and for contravention of any of the provisions of the Act and the Rules, the accused petitioners cannot be prosecuted u/s. 92 of the Act. In the facts and circumstances of the case, no offence under Section 92 of the Act is shown to be made out and to permit the proceedings against them to continue shall be tentamount to abuse of the process of the court. 13. In the result, the applications abovementioned are allowed and entire criminal proceedings including the order of cognizance dt. 28.11.97 in case nos. C-lll 285/97 and C-lll 286/97 are set aside.