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2012 DIGILAW 271 (JHR)

Ram Kumar Lal @ R. K. Lal v. State of Bihar

2012-02-22

PRASHANT KUMAR

body2012
JUDGMENT Prashant Kumar, J.-This application has been filed for quashing order dated 3.12.1999 passed by learned Chief Judicial Magistrate, Dhanbad in F.A. Case No. 652 of 1999, whereby he took cognizance under Section 92 of Factory Act against petitioner. 2. It appears that Factory Inspector Dhanbad has filed a complaint alleging that on inspection of M/s Loyabad, Cooking Bye-Products Recovery Plant, Loyabad and found that sufficient numbers of latrines not provided in the factory premises and existing latrines were not maintained, which is violative of provisions of Section 19 of Factory Act and Rule 42 of Bihar Factory Rules, 1950. 3. It appears that said complaint received in the Court of learned Chief Judicial Magistrate, on 3.12.1999 and on the same day he took cognizance of the offence under Section 92 of the Factory Act. 4. It is submitted by Sri A.K. Mehta, learned counsel for the petitioner that petitioner being a director of the company can not be prosecuted under Section 92 of the Factory Act, because he is not occupier within the meaning of Section 2 (n) of the Factory Act. It is submitted that the person who manage the affairs of factory is occupier, therefore he can only be prosecuted under Section 92 of the Factory Act. It is submitted that petitioner has not been appointed by Central Government as occupier of the factory, therefore order taking cognizance is bad. It is further submitted that order taking cognizance is also violative of Section 106 of the Factory Act. 5. On the other hand, Sri S.S. Prasad, learned Additional PP submits that petitioner has been appointed by Central Government as occupier which manifest from Annexure-A to the counter-affidavit. Sri Prasad further submits that petitioner put his signature on Annexure-B as occupier of factory. Under the said circumstance, as per Section 92 of the Factory Act, petitioner can be prosecuted for violation of any of the provisions of the Factory Act and Rules framed thereunder. 6. Sri Prasad further submits that petitioner put his signature on Annexure-B as occupier of factory. Under the said circumstance, as per Section 92 of the Factory Act, petitioner can be prosecuted for violation of any of the provisions of the Factory Act and Rules framed thereunder. 6. Having heard the submissions, I have gone through the record, Section 19 of the Factory Act is as follows:- Latrines and urinals.-(1) In every factory— (a) sufficient latrine and urinal accommodation of prescribed types shall be provided conveniently situated and accessible to workers at all times while they are at factory; (b) separate enclosed accommodation shall be provided for male and female workers; (c) such accommodation shall be adequately lighted and ventilated, and no latrine or urinal shall, unless specially exempted in writing by the Chief Inspector, communicate with any work room except through an intervening open space or ventilated passage; (d) all such accommodation shall be maintained in a clean and sanitary condition at all times; (e) sweepers shall be employed whose primary duty it would be to keep clean latrines, urinals and washing places. (2) In every factory wherein more than two hundred and fifty workers are ordinarily employed— (a) all latrine and urinal accommodation shall be of prescribed sanitary types; (b) the floors and internal walls, up to a height of [ninety centimeters], of the latrines and urinals and the sanitary blocks shall be laid in glazed tiles or otherwise finished to provide a smooth polished impervious surface; (c) without prejudice to the provisions of Clauses (d) and (e) of sub-section (1), the floors, portions of the walls and blocks so laid or finished and the sanitary pans of latrines and urinals shall be thoroughly washed and cleaned at least once in every seven days with suitable detergents or disinfectants or with both. (3) The [State Government] may prescribe the number of latrines and urinals to be provided in any factory in proportion to the numbers of male and female workers ordinarily employed therein, and provide for such further matters in respect of sanitation in Factory, including the obligation of workers in this regard, as it considers necessary in the interest of the health of the workers employed therein. Rule 42 of Bihar Factory Rules runs as follows:-- Latrine accommodation.-Latrine accommodation shall be provided in every factory, on the following scale:-- (1) where the maximum number of workers working at anyone time does not exceed one hundred there shall be at least one latrine for every twenty-five of such workers; (2) where the maximum number of workers working at anyone time exceeds one hundred, there shall be one latrine for every twenty-five workers for the first hundred workers and one for every fifty thereafter. (3) where women workers are employed, separate latrine shall be provided for men and women and the number of latrines required to the provided for each shall be calculated separately on the basis of their respective numbers in the manner specified in clauses (1) and (2) : Provided that in calculating the number of latrines required under the rule, any number of workers less than twenty-five or fifty as the case may be, shall be reckoned as twenty-five or fifty. 7. From perusal of complaint petition, I find that at the time of inspection in the factory premises, only three latrines were found, whereas, in the said factory more than 500 workers employed out of whom 170 were female workers, which is violative of Section 19 of the Factory Act and Rule 42 of Bihar Factory Rules, 1950. Section 92 of the Factory Act provides that if there is contravention of any provisions of Factory Act, or any rules made thereunder, then occupier and manager of the Factory shall be held guilty of the offence. Thus as per Section 92 of the Factory Act occupier and manager of the factory can be prosecuted for violation of the provisions of Factory Act or Rules. 8. The contention of learned counsel for the petitioner that at the relevant time petitioner was not managing the affairs of the factory as its occupier, cannot be accepted, because as per proviso 3 of Section 2 (n) of Factory Act if the factory is owned or controlled by Central Government then the person appointed by Central Government to manage the affairs of the factory shall be deemed to be the occupier. In the instant case a counter-affidavit filed by opposite party No.2. Annexure-A to the said counter-affidavit reveals that petitioner was appointed as occupier of M/s Loyabad, Coke Plant. In the instant case a counter-affidavit filed by opposite party No.2. Annexure-A to the said counter-affidavit reveals that petitioner was appointed as occupier of M/s Loyabad, Coke Plant. It further appears that petitioner put his signature on Annexure-B as occupier of M/s Loyabad, Cooking Bye-Products Recovery Plant, Loyabad (factory in question). From Annexure-B it is clear that petitioner is the occupier of factory. Under the aforesaid circumstance, I find that contention of learned counsel for the petitioner has no leg to stand. 9. Now coming to the next contention that order taking cognizance is barred by law of limitation, it is worth mentioning that factory in question inspected on 3.9.1999. Thereafter petitioner was directed to remove irregularities vide letter No. 561 dated 10.09.1999. It appears that when said direction not complied, present complaint filed on 3.12.1999. Proviso to Section 106 of factory Act provides that if the offence consists of disobeying of written order made by an inspector, the complaint petition can be filed within six month from the date on which the offence is alleged to have been committed. As noticed above, in the instant case, factory inspector gave direction to the petitioner to remove irregularities within a certain period, but said direction not complied. Therefore, in this case complaint can be filed within six months from the date on which said offence came in the knowledge of inspector. Under the aforesaid circumstance, there is no delay in filing of complaint petition. Accordingly, second contention raised by Sri A.K. Mehta is also rejected. 10. In view of the discussions made above, I find no merit in this application. Accordingly, same is dismissed. Application dismissed.