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2012 DIGILAW 249 (JHR)

P. K. Saraf v. State of Bihar

2012-02-16

R.R.PRASAD

body2012
JUDGMENT By Court : Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. This application is directed against the order dated 24.05.1999 passed in C/2 Case No.985 of 1998 whereby and whereunder the application for discharge of the petitioner from the accusation punishable under Section 92 of the Factories Act, was rejected. 3. It appears that the Opp. Party No.2 filed a complaint case bearing C/2 Case No.985 of 1998 before the learned Judicial Magistrate, 1st Class, Jamshedpur, alleging therein that in spite of the direction being given to M/s Incab Industries Limited, for employing three Safety Officers, the Manager/Occupier of the Management, did not comply with that order and as such, the Occupier/Manager of the Management committed offence under Section 92 of the Factories Act, for contravening the provision of Section 40(B) of the Factories Act. 4. Learned counsel appearing for the petitioner submits that the allegation what has been made by the complainant pertains to year 1988 to 1994 whereas the said M/s Incab Industries Limited got closed in the year 1994. Thereupon, Company Law Board declared M/s Incab Industries Limited as a sick Industry. 5. Thereafter, the Management of the said Company, approached to the Calcutta High Court, with a prayer to restrain the Company Law Board from winding up the said Company. In that proceeding, the petitioner intervened and made a prayer before the Calcutta High Court that he be allowed to take over the Management of the Company and to run it. That plea was accepted. Consequently, the Calcutta High Court allowed the petitioner to promote the Company and, accordingly, the petitioner took over the charge of the Management of the Company in May, 1997. 6. Thereupon the petitioner complied with the order, as the petitioner did employee two Safety Officers with requisite qualification in the Company and the information to the effect, was given to the Inspector of the Factories. 7. 6. Thereupon the petitioner complied with the order, as the petitioner did employee two Safety Officers with requisite qualification in the Company and the information to the effect, was given to the Inspector of the Factories. 7. It was further submitted that before the petitioner took over the Management of the Company, the erstwhile Management had been given exemption on fulfillment of certain conditions on 27.07.1993 by the Chief Inspector, Factories, Bihar whereby an order was passed exempting the Management from complying the provision of Rule 62(2)(ii) (b) of the Bihar Factories Rules, 1950 provided Sri B.D. Choudhary, the then Superintendent Safety and Sri S.K. Sahay, the then Assistant Superintendent Safety, will obtain a diploma in industrial safety from a recognized Institute within a reasonable time but immediately thereafter, the Company was declared a sick Company by the Company Law Board and on account of that, those two Officers could not acquire requisite qualification. 8. Thus, it was submitted that during the period, when the allegation has been made of breach of Section 40 (B) of the Factories Act, the petitioner was never the Manager/Occupier of the said Company rather the petitioner became the Manager/Occupier of the Company in May, 1997 and thereupon, two Safety Officers with requisite qualifications have been appointed and therefore, the petitioner is not liable to be prosecuted for the offence punishable under Section 92 of the Factories Act. 9. Assertion made in the petition filed on behalf of the petitioner never seems to have denied by the State of Bihar. 10. Thus, there has been no difficulty in accepting the statement made in the petition that the petitioner took over the management of the Company in May, 1997 whereas the breach, which has been alleged pertains to year 1988 to 1994 during which, the petitioner was never holding the Management of the Company and as such, the petitioner cannot be held responsible for breach of any of the provision of the Factories Act. 11. Further more, the petitioner, having taken over the Management, has employed two Safety Officers having requisite qualification. 12. Under the situation, it would be sheer abuse of the process of court, if the petitioner is allowed to be prosecuted, under the circumstances mentioned above. 13. 11. Further more, the petitioner, having taken over the Management, has employed two Safety Officers having requisite qualification. 12. Under the situation, it would be sheer abuse of the process of court, if the petitioner is allowed to be prosecuted, under the circumstances mentioned above. 13. Hence, the order dated 24.05.1999 passed in C/2 Case No.985 of 1998 whereby and whereunder the application for discharge of the petitioner from the accusation punishable under Section 92 of the Factories Act, was rejected, is hereby set aside. 14. Consequently, the petitioner is discharged from the accusation punishable under Section 92 of the Factories Act. 15. In the result, this application is allowed.