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2012 DIGILAW 279 (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. 650 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 Loyabad, Cooking Bye-Products Recovery Plant, Loyabad, and thereafter filed a complaint alleging therein that there is no Safety committee formed as per the rules, which is violative of the provisions of Section 41G of the Factory Act and Rule 62C 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 had 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. 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 41G of the Factory Act reads as under:- 41-G Workers' participation in safety management-(1) The occupier shall, in every factory where a hazardous process takes place, or where hazardous substances are used or handled, set up a Safety Committee consisting of equal number of representatives of workers and management to promote co-operation between the workers and the management in maintaining proper safety and health at work and to review periodically the measures taken in that behalf: Provided that the State Government may, by order in writing and for reasons to be recorded, exempt the occupier of any factory or class of Factory from setting up such Committee. (2) The composition of the Safety Committee, the tenure of office of its members and their right and duties shall be such as may be prescribed. Rule 62C of Bihar Factory Rules reads as under:- Safety Committee- In every factory:- (a) Wherein 250 or more workers are ordinarily employed; or (b) Which carries on any process or operation declared to be dangerous under Section 87 of the Act; or (c) Which carries on 'hazardous process' as defined under Section 2 (cb) of the Act; There shall be a safety committee. (2) The representatives of the management of Safety Committee shall include:- (a) A senior official, who by his position in the organisation can contribute effectively to the functioning of the committee, shall be the Chairman; (b) A Safety Officer and a Factory Medical Officer, where ever available and the Safety Officer in such a case shall be the Secretary of the Committee; (c) A representative each from the production, maintenance and purchase departments. (3) The workers representatives on this committee shall be elected by the workers. (4) The tenure of the Committee shall be two years. (5) Safety Committee shall meet as often as necessary but atleast once in every quarter. The minutes of the meeting shall be recorded and produced to the Inspector on demand. (3) The workers representatives on this committee shall be elected by the workers. (4) The tenure of the Committee shall be two years. (5) Safety Committee shall meet as often as necessary but atleast once in every quarter. The minutes of the meeting shall be recorded and produced to the Inspector on demand. (6) Safety Committee shall have the right to :- (a) ask for necessary information concerning health and safety of the workers, (b) Seek any relevant information concerning health and safety of the workers. (7) Function and duties of the Safety Committee shall include :- (a) assisting and co-operating with the management in achieving the aims and objectives in the Health and Safety Policy of the occupier; (b) Dealing with all matters concerning health safety and environment and to arrive at practicable solutions to problems encountered; (c) creating safety awareness, amongst all workers; (d) undertaking educational, training and promotional activities; (e) deliberating on reports of safety environmental and occupational health surveys, emergency plans, safety audits, risk assessment and implementation of the recommendations made in the reports; (f) carrying out health and safety surveys and to identify causes of accidents; (g) looking into any complaint made on the likelyhood of an imminent danger to the safety and health of the workers and suggest corrective measures; and (h) reviewing the implementation of the recommendations made by it, (8) where owing to the size of the factory, or any other reason, the functions referred to in sub-rule (7) cannot be effectively carried about by the Safety Committee, it may establish sub-committees as may be required to assist it. 7. From perusal of complaint petition, I find that at the time of inspection of the factory premises there is no safety committee formed as per the rules, which is violative of Section 41G of Factory Act and Rule 62C 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 & 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 & 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. 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 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.