Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 275 (JHR)

Anup Kumar Gupta v. State of Bihar

2012-02-22

PRASHANT KUMAR

body2012
JUDGMENT Prashant Kumar, J.- 1. This application has been filed for quashing order dated 3.12.1999 passed by learned Chief Judicial Magistrate, Dhanbad in F.A. Case No. 658 of 1999, whereby he took cognizance under Section 92 of Factory Act against petitioner. 2. It appears that Factory Inspector Dhanbad made inspection of M/s B.C.C.L.Press, Koyla Nagar, Dhanbad and thereafter filed complaint alleging therein that during inspection it was found that First Aid Box kept in the Factory premises is not equipped with the prescribed contents, nor any person employed who holds certificate in first aid treatment recognised by the State Government which is violative of provisions of Section 45 of the Factory Act and Rule 64 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. Having heard the submissions. I have gone through the record. Section 45 of the Factory Act reads as under :- 45. 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 45 of the Factory Act reads as under :- 45. First-aid appliances.-(1) There shall in every factory be provided and maintained so as to be readily accessible during all working hours first-aid 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 hundred and fifty workers ordinarily employed [at any time] in the factory. (2) Nothing except the prescribed contents shall be kept in a first-aid box or cupboard. (3) Each first-aid box or cupboard shall be kept in the charge of a separate responsible person [who holds a certificate in first-aid 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 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]. 7. From perusal of complaint petition. I find that at the time of inspection of the factory premises, it was found that First Aid Box kept in the Factory premises is not equipped with the prescribed contents, nor any person employed who holds certificate in first aid treatment recognised by the State Government which is violative of Section 45 of the Factory Act and Rule 64 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. 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 B.C.C.L. Press, Koyla Nagar, Dhanbad. It further appears that petitioner put his signature on Annexure-B as occuper of M/s B.C.C.L. Press, Koyla Nagar, Dhanbad (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. 543 dated 04.09.1999. 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 months 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.