K. Masthan Rao v. State Rep. , by Inspector of Factories
2014-07-03
T.S.SIVAGNANAM
body2014
DigiLaw.ai
Judgment : 1. In all these petitions, prayer has been made to quash the criminal proceedings initiated by the Inspector of Factories, first Circle, Vellore. 2. The petitioner in Crl.O.P.Nos.15980 to 15984 of 2014 is the Deputy Chief Engineer cum Occupier, Engineering Workshop, Southern Railway, Arakkonam, Vellore District. 3. The petitioner in Crl.O.P.Nos.15374 to 15379 of 2014, is the Deputy Chief Engineer cum Manager, Engineering Workshop, Southern Railways, Arakkonam, Vellore District. Since the facts are identical and the legal issues involved are common to all these petitions and they were heard together and are disposed of by this common order. 4. Crl.O.P.Nos.15374 of 2014, has been focused as the lead case and to decide the questions involved in all these petitions, it would suffice to take note of the facts in Crl.O.P.No.15374 of 2014. In the said petition, the petitioner seeks to quash C.C.No.73 of 2014, on the file of the Chief Judicial Magistrate cum Civil Judge (Senior Division), Vellore. The said criminal complaint has been filed by the respondent, the Inspector of Factories, Vellore against the petitioner for alleged violation of the provisions of the Factories Act, 1948, (as amended by Act, 1987) (Act) and the Tamil Nadu Factory Rules, 1950 (Rules). 5. The respondent filed the complaint alleging that the petitioner had committed alleged offences under Section 41 read with Rule 61F, Section 88(3) of the Act read with Rule 96(6). Based on the complaint, summons were issued to the petitioners and on receipt of the same, they have approached this Court to quash the complaints. 6. The case of the prosecution is that the Deputy Chief Inspector of Factories conducted an inspection at the Engineering Workshop, Southern Railways, Arakkonam and noticed certain contraventions of the provisions of the Act and the Rules. It may not be necessary to take note of all the alleged contraventions, but for the completion of facts, few of the contraventions as noted in the complainant would be sufficient.
It may not be necessary to take note of all the alleged contraventions, but for the completion of facts, few of the contraventions as noted in the complainant would be sufficient. It is alleged that the petitioner has violated Section 7(1) read with Rule 12(b)(3)(4) of the Rules, as the stability certificate of the building has not been obtained from the competent officer and not produced to the Inspecting Officer at the time of inspection; that having not fixed a Convex mirror in the Blind Corners in the factory premises violating Section 41 read with Rule 61R(2)(i); that the Safety Committee has not been constituted and the minutes of the Safety Committee meeting were not produced at the time of inspection, thereby violated Section 41 read with Rule 61M; that the Canteen Management Committee has not been constituted, thereby violating Section 46(1)(2)(d) read with Rule 70; that rope tests for the crane have not been conducted and not produced at the time of inspection, thereby violated Section 29(1)(a)(iii) read with Rule 54A(4); that a creche has not been established, though there are more than 30 women employees in the factory, thereby violated Section 48(1)(2) read with Rules 73 to Rules 75; that ventilating plant has not been established, thereby violating Section 87 read with Rule 95 Table XXXII, clause 11; that the name of the occupier of the factory has not been duly amended in the records, though there has been change of officer, thereby violated Section 6(1) read with Rule 8(1) of the Rules etc. 7. The complaint was filed under Section 105(1) of the Act to punish the petitioners under Section 92 of the Act before which a show cause notice was issued to the petitioners calling upon them to explain the contraventions noticed at the time of inspection. The petitioners submitted their reply, which according to them is well within the period of seven days, as stipulated in the show cause notice. There is a slight controversy on this aspect, which shall be dealt with a little later. After explanation was submitted, another explanation was also given followed by a letter addressed to the Chief Inspector of Factories by the Works Manager of the petitioner factory. 8.
There is a slight controversy on this aspect, which shall be dealt with a little later. After explanation was submitted, another explanation was also given followed by a letter addressed to the Chief Inspector of Factories by the Works Manager of the petitioner factory. 8. According to the petitioners, they have satisfied all the requirements and sofar as the building stability certificate is concerned, it was submitted that it is a hundred year old building and has been duly certified by the Railway department and as soon as the certification is received, the same would be forwarded. After the filing of the complaint, the petitioner had addressed the Chief Inspector of Factories, Chennai, to depute the persons recognised by the Chief Inspector of Factories for the purpose of certifying the stability of the building. It was explained that the Convex mirror will not be suitable to be provided in the blind corners. Therefore, the speed breakers have been provided and after the filing of the complaint, it is stated that the Convex mirrors have been fixed and this has been intimated on 06.06.2014. The minutes of the Safety Committee Meeting, the Canteen Committee Meeting were also forwarded. Regarding the inspection of the crane ropes, it was submitted that the same have been inspected by the competent authority certified by the Chief Inspector of Factories on 19.10.2011 and 20.10.2011. 9. As regards the creche room, it was stated that the room is available, but none of the women employees have children less than six years of age and therefore, such facility is not required for the present. Regarding the Ventilation plant, it was stated that the building has natural ventilation with sufficient open area and therefore, the question of establishing a ventilation plant does not arise and hence, testing of those plants is not required. In spite of the explanation offered, the respondent filed complaint and summons were issued to the petitioners. 10. Mr.P.T.Ramkumar, the learned counsel appearing for the petitioner after elaborately referring to the factual details submitted that the complaint is totally vexatious without application of mind to the explanation given by the petitioner along with relevant records and the proceedings initiated, is an abuse of process of law.
10. Mr.P.T.Ramkumar, the learned counsel appearing for the petitioner after elaborately referring to the factual details submitted that the complaint is totally vexatious without application of mind to the explanation given by the petitioner along with relevant records and the proceedings initiated, is an abuse of process of law. Further, the learned counsel referred to the explanation given on 16.04.2012 and submitted that the said explanation is well within the time limit of seven days and without considering any of the explanation offered, the respondent has mechanically preferred the complaints. Further, it is submitted that the petitioners being public servants appointed by the Central Government, the present complaints filed without obtaining sanction under Section 197 Cr.P.C., is bad in law and the complaints are vitiated for failure to follow the mandatory procedure. The learned counsel further submitted that after submitting the explanation on 16.04.2012, another reply was given on 31.05.2012 and the petitioner also addressed the Chief Inspector of Factories, Chennai on 12.07.2012. Further, the learned counsel referred to the relevant documents to establish that the notice of change of the Deputy Chief Engineer was duly intimated in form No.3A, the minutes of the Canteen Advisory Committee meeting held on 09.02.2012, the minutes of the Safety Committee meeting held on 29.08.2011, the report of examination of cranes, chains, ropes, lifting tackles, dated 19.10.2011, the building stability certificate issued on 30.05.2011 issued by the Ministry of Railways, Government of India. Further, the learned counsel referred to the letter written to the Chief Inspector of Factories, dated 28.09.2012, wherein it was requested to send the list of competent persons recognised by the Chief Inspector of Factories for signing the building stability certificate so as to send the same to the Headquarters/ Divisional Officers, processing as it requires policy decision. The learned counsel submitted that in spite of all these documents having been placed before the respondent and submitting detailed explanations, without reference to any of the explanations and documents, the respondent has filed the complaint, which is a clear abuse of process of Court. Further, it is submitted that even in the complaint, there is no averment stating that the explanation offered by the petitioners are not satisfactory. 11.
Further, it is submitted that even in the complaint, there is no averment stating that the explanation offered by the petitioners are not satisfactory. 11. The learned counsel further submitted that in terms of Rule 102 of the Tamil Nadu Factory Rules, 1950, the Occupier, Owner or Manager of factory shall furnish any information that an Inspector may require for the purpose of satisfying himself whether any provisions of the Act has been complied with and any demand by the Inspector of 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 the receipt thereof. It was submitted that even assuming there were certain minor violations, no opportunity was given to the petitioners to rectify the defects. In support of his contentions, the learned counsel referred to the decision of the Hon'ble Supreme Court in the case of State of Maharashtra vs. Dr.Budhikota Subbarao, reported in (1993) 3 SCC 339 , the decision of the Karnataka High Court in the case of General Manager, Wheel and Axle Plant, Bangalore & Anr., vs. State of Karnataka reported in 1996-1-LLJ-943 and the decision of the Karnataka High Court in the case of D.Ghosh Roy, Chief Workshop Manager, Carriage Repair Shop, South Western Railway & Anr., vs. Assistant Director of Factories in Criminal Petition No.7386 of 2008, dated 03.09.2009 and the decision of the High Court of Madhya Pradesh, Jabalpur Bench, in the case of S.K.Prasad & Anr., vs. The State of Madhya Pradesh in Crl.R.C.No.1545 of 2010, dated 09.05.2013. It is further submitted by the learned counsel that the complaint filed by the respondent is beyond the period of limitation as stipulated under Section 106 of the Act and therefore, the same is liable to be quashed. 12. Mr.C.Emalias, learned Additional Public Prosecutor produced a tabulated statement containing the case numbers, name of the accused, details of the charge, date of accident (if any), date of show cause notice, date of inspection, reply received on, date of filing of charge sheet and the proceedings of the Chief Inspector of Factories, sanctioning prosecution and the date of proceedings of the Joint Inspector of Factories granting prior permission for initiation of criminal prosecution.
It is submitted by the learned Additional Public Prosecutor that December 2011, two persons were injured and during April 2012, fifteen persons were injured and the deficiencies pointed out are very vital and proper procedure was followed, sanction was obtained and thereafter, prosecution has been launched and all the issues pointed out by the petitioner can be raised before the Court below. It is submitted that the explanation dated 28.09.2012, has been submitted after the filing of the criminal complaint and that cannot be taken into consideration to exonerate the petitioners. Further, it is submitted by the learned counsel that the explanation dated 16.04.2012, is also not a proper explanation for the sixteen contraventions, which were pointed out. Further, it is submitted that the complaint is well within the period of limitation, as the period spent for obtaining the sanction from the Chief Inspector of Factories should be excluded and if it is done, the complaint is well within the period of limitation. It is further submitted that the explanation dated 12.07.2012, is not to the competent authority and it has been addressed to the Chief Inspector of Factories and the same cannot be relied on by the petitioner. Therefore, it is submitted that the factual details, which have been canvassed by the petitioner cannot be agitated before this Court and the petitioners have to appear before the trial Court and place all their submissions. 13. In reply, the learned counsel appearing for the petitioner after reiterating the factual details submitted that the sanction referred to by the respondent is under the provisions of the Act, but the petitioners' case is that they being the public servants appointed by the Central Government and having been prosecuted in their official capacity, sanction is required under Section 197 Cr.P.C. 14. The learned Additional Public Prosecutor submitted that even assuming that sanction under Section 197 Cr.P.C., is required, the same can be obtained subsequently and it is not a ground to quash the complaint. 15. The learned counsel for the petitioner would further state that it is more than two years and no sanction has been obtained till date and therefore, this Court should not grant any indulgence to the respondent to remedy the breach at this distance of time.
15. The learned counsel for the petitioner would further state that it is more than two years and no sanction has been obtained till date and therefore, this Court should not grant any indulgence to the respondent to remedy the breach at this distance of time. Further, the learned counsel by referring to the communication dated 06.06.2014, sent by the petitioner to the Joint Director of Industrial Safety and Health, submitted that the Convex mirrors have been fixed in the road corners. Therefore, it is endeavour of the petitioner to submit that they are a Central Government organisation and in all these years except for two stray incidents, there has not been a single accident and the workers welfare has been taken care of and therefore, the complaint deserves to be quashed. 16. Heard the learned counsels appearing for the parties and perused the materials available on record. 17. Since the complaints filed by the respondent are sought to be quashed on technical grounds, it may not be essential to advert to each and every contraventions, as alleged by the respondent. 18. The following questions of law and fact arise for consideration in these petitions:- (i) whether the complaints are barred by limitation; (ii) whether the complaint filed by the respondent is an abuse of law vitiated by non-application of mind and bad for want of full disclosure; (iii) whether the complaint is liable to be quashed on the ground that no sanction was obtained under Section 197 Cr.P.C.; and (iv) whether the action of the petitioners namely, the Manager and Occupier of the factory are bonafide and their acts done in good faith. Question No.(i) 19. The learned counsel appearing for the petitioner submitted that the complaint is barred by limitation, since it has not been filed within three months as required under Section 106 of the Act. The inspection of the petitioner's factory was done on 22.03.2012 and show cause notice was issued on 09.04.2012, granting seven days time to submit the explanation, which was submitted on 16.04.2012. The complaint was first presented before the Court on 21.06.2012. 20. As noticed above, the complaint though presented on the said date, was not taken on file and it appears to have been returned to the respondent/complainant and re-presented after one year during September 2013. This delay in re-presentation remains unexplained.
The complaint was first presented before the Court on 21.06.2012. 20. As noticed above, the complaint though presented on the said date, was not taken on file and it appears to have been returned to the respondent/complainant and re-presented after one year during September 2013. This delay in re-presentation remains unexplained. Therefore, technically it cannot be stated that the complaint is barred by limitation. 21. Further, by referring to the proviso to Section 106, the learned Additional Public Prosecutor submitted that the complaint could be made within six months from the date on which the alleged offence is committed and in the case of continuing offences, the limitation should be computed with reference to every point of time during which the offences continue. 22. In the light of the above provision, it is held that the complaint is not barred by limitation. Question No.(ii):- 23. In the pre-amble portion of this orders, some of the alleged contraventions have been referred to and the petitioners had submitted their reply on 16.04.2012, which according to the petitioners is well within the period of limitation. After perusing the original records, it is seen that the show cause notice was issued on 09.04.2012 and the reply was submitted on 16.04.2012 and therefore, it is within the seven days period. At this stage, it would be relevant to take note of some of the explanations given by the petitioners to the contraventions pointed out by the respondent in the show cause notice:- 1. Section 7(1) Rule 12b(3) (4):- Action has been taken to get the Building stability certificate for the Building available from our sister railway department and expecting the Building certificate. The position of the above has been intimated to your Office wide this Office letter No.G.24/A/Misc/F.L/Vol.IV, dated 06.07.11 (this office sent letter to Sr.SE/Works/AJJ on 08.06.11 and remainder letter sent on 17.03.2012 to Sr.DEN/Co.Ord/MAS) 2. Section 41 Rule 61 R(2)(i):- Convex mirror will not suitable to provide in the Blind corners at structural shop. Since, the area is fully covered with material handling area and may have chance to break the Convex mirror while material handling. Hence, suitable speed breaks will be provided on both side of the road to avoid accident in the blind corners. Now the road work is in progress during this process necessary speed breakers will be provided.
Since, the area is fully covered with material handling area and may have chance to break the Convex mirror while material handling. Hence, suitable speed breaks will be provided on both side of the road to avoid accident in the blind corners. Now the road work is in progress during this process necessary speed breakers will be provided. The position of the above has been intimated to your Office wide this Office letter No.G.24/A/Misc/F.L/Vol.IV, dated 06.07.11. 3. Sec.41 Rule 61M:- Safety Committee meetings are conducted regularly. The minutes of the meeting are recorded, last safety committee meetings conducted on 29.08.2011. Copy of the minutes will be produced during next visit. 4. Sec. 46(1)(2)(d) Rule 70:- The Canteen Advising Committee is functioning in EWS/AJJ. 5. Sec. 29(1)a(III) Rule 55A(4):_ The said EOT crane ropes has been tested by competent person certified by Chief Inspector of Factories Chennai on 19.10.2011 and 20.10.2011. 6. Sec. 46(1) Rule 67A:- The Canteen staff were sent for medical examination at our Railway Hospital, Arakkonam and the test reports maintained in the form of Form No.40. 7. Sec. 48(1)(2) Rule 73 to 75:- A Creches room available in this works shop. The women working in this workshop not having small babies with them. Hence, Creches room and the relevant facilities for creches not required at this stage. However, if needed in future care will be taken to provide facilities in the Creches room. The position of the above has been intimated to your Office wide this Office letter No.G.24/A/Misc/F.L/Vol.IV, dated 06.07.11. 8. Sec.87 Rule 95 Schedule XXXII Sub-11:-The Foundry shop was exist with open in all the sides and free ventilation in to the Foundry shops and no ventilating plant required. Hence, the testing of ventilating plant does not arise. 24. This explanation was followed by another explanation dated 31.05.2012. In fact, this is in continuation of the earlier explanation, which was well within the time permitted by the respondent, wherein the petitioners pointed out the following:- (1) Building Stability Certificate issued by the competent persons of this Railway Organisation on 30.05.2012 is enclosed. (2) There are no blind corners on the Roads inside the Workshops besides there is hardly any movement of vehicles inside the workshops. In view of the above, this workshop does not warrant Convex Mirrors.
(2) There are no blind corners on the Roads inside the Workshops besides there is hardly any movement of vehicles inside the workshops. In view of the above, this workshop does not warrant Convex Mirrors. (3) There is a safety committee available at this workshops and the Safety Committee Meeting has been conducted regularly. Copy of the Minutes of the last Meeting is enclosed herewith. (4) Rope Test of the EOT Cranes Sl.No.01 to 09 has been conducted by the Competent Person Certified by the Chief Inspector of Factories Chennai on 19.10.2011 and 20.10.2011 (Copy enclosed) 1. Once Mr.K.Mastan Rao, Age 45 S/o.K.Gangaiya joined as Dy.Chief Engineer/EWS/Arakkonam, Form No.3A has already been sent for the Change of name vide this office letter No.G.24/A/MISC/FL/VOLIV/2011 Dt. 21.01.2012. 2. (6) There are 71 women employees working at present and as per the Records available, no one is having children upto the age of 6 years. (5) (7) The Foundry Shop at this workshops has natural ventilation with the openings available in all the directions and hence no ventilation plant needs to be installed and thereby the question of Testing of ventilation plant does not arise. 25. Thereafter, the petitioners addressed the Chief Inspector of Factories by letter dated 12.07.2012, with a copy marked to the respondent complainant. In the said communication, it was pointed out that the workshop was running for a century and most of the Act provisions were already in-existence and the observations made by the respondent related to issues such as non-testing of machinery and plant, provision of Ambulance and creche; sending of workers for medical examination etc. It was pointed out that the petitioner organisation is having its own infrastructure for providing, testing and other things, they have a full fledged medical department and the hospital available at Arakkonam is a divisional hospital provided with an Ambulance facility and periodical medical examination of workers are being conducted on their due dates. 26. Further, it was stated that in as far as safety aspect is concerned, the department never compromise with single omission and it is given top priority and whatever observations made by the respondent/complainant have been complied with and a report in this regard was also sent and in the mean time, a show cause notice was issued against the occupier and manager separately.
It was further submitted that there is no single case of major accident and no fatal death reported at the workshop in the last 20 years. Therefore, it was submitted that the legal proceedings initiated against the Manager and Occupier, is unwarranted and requested the Chief Inspector of Factories for his personal interference for resolving the issues. 27. As pointed out earlier, the form 3A intimating notice of change of Deputy Chief Engineer, minutes of the Canteen Advisory Committee meeting, minutes of Safety Committee meeting, the report of examination of cranes, ropes, etc., building stability certificate were all forwarded to the respondent/complainant as well as the head of department. Thereafter, on 28.09.2012, another representation was made enclosing copy of the building stability certificate issued by the competent person and simultaneously requesting the Chief Inspector of Factories to nominate recognised persons for signing them stability certificate. Despite all these factual submissions, the complaints have been filed by the respondent verbatim repeating the allegations made in the show cause notice. Surprisingly, there is no reference to the explanations submitted by the petitioners and as to how the petitioners have not complied with the deficiencies pointed out, as to how the same stand rectified and such other matters. In the show cause notice dated 09.04.2012, it has been stated that on 22.03.2012, an inspection was conducted in the factory and the deficiencies, which were noticed in the course of inspection, were listed out as serial nos. 1 to 16 and the petitioners were called upon to explain as to why, prosecution should not be initiated against them by giving them seven days time to submit their explanation in writing, failure to avail the opportunity would be considered that there is no explanation to offer and without further notice, action would be taken. Therefore, the respondent/complainant being a statutory authority having provided for an opportunity to the petitioner to show cause ought to have considered the correctness of the proprietary of the explanations offered. 28.
Therefore, the respondent/complainant being a statutory authority having provided for an opportunity to the petitioner to show cause ought to have considered the correctness of the proprietary of the explanations offered. 28. In terms of Rule 102 of the Tamil Nadu Factory Rules, 1950, the Occupier, Owner or Manager of a factory shall furnish information to an inspector for the purpose of satisfying himself whether any of the provisions of the Act have been complied with or whether any order of the Inspector has been carried out and any demand of such information, if made during the course of an inspection, shall be complied with forthwith or if made in writing, shall be complied with within seven days of receipt thereof. Thus, the rule contemplates an opportunity for compliance. If the respondent/complainant has pointed out certain contraventions and if the contraventions exist, the contravener is bound to comply with within seven days. The case on hand is slightly different in the sense that the petitioners have submitted their explanations showing cause in respect of the allegations made in the show cause notice. In such circumstances, the respondent/complainant cannot ignore the reply to the show cause notice and proceed to lodge the complaint, as if he has not received any reply. 29. As noticed above, there is no reference to the reply submitted by the petitioner. The complaint was signed by the respondent on 20.06.2012 and filed before the Court on 21.06.2012, presumably not in full form and appears to have been returned and re-presented on 30.09.2013. In the intergnum, the petitioner has been given the replies dated 16.04.2012 and 31.05.2012. That apart, the further explanations dated 12.07.2012 and 28.09.2012, were submitted much prior to the date on which, the complaint was re-presented i.e., on 30.09.2013. There is no explanation forth coming as to why the complaint which was presented on 21.07.2012 was returned and as to why the complaint was re-presented after more than one year. Therefore, this Court has no hesitation to hold that the complaint is vitiated on account of total non-application of mind. 30. The petitioners being the Occupier and Manager of Government factory have stated that the building is more than a century old and all parameters are in place, the respondent/complainant has totally ignored all these aspects and proceeded with the complaint, as if no explanation was offered by the petitioners for the alleged contraventions.
30. The petitioners being the Occupier and Manager of Government factory have stated that the building is more than a century old and all parameters are in place, the respondent/complainant has totally ignored all these aspects and proceeded with the complaint, as if no explanation was offered by the petitioners for the alleged contraventions. The respondent in the compliant has stated that the ventilating plant has not been inspected and no certificate has been produced at the time of inspection and this has been stated as a contravention of Section 97 read with Rule 95 of the Rules. The petitioners in their explanation have stated that the foundry shop, which exist is open in all sides and free ventilating is there in the foundry shop and hence, no ventilating plant is required and therefore, the testing of the plant does not arise. 31. It is to be noted that the contraventions pointed out is for not obtaining certificate for fitness of the ventilating plant. The respondent/complainant without proper application of mind extracted the very same allegation, as found in the show cause notice in the complaint also without reference to the explanations offered stating that there is no ventilating plant. 32. In respect of the allegations that the Safety Committee meetings are not conducted regularly, the Canteen Committee has not been functioned, it was pointed out that the committees are in place and they have met and resolved various issues and minutes of the meetings were also forwarded. There is no reference to such a stand taken by the petitioner in the complaint nor does the complaint say that such stand is incorrect. Copies of the minutes of such meetings have been filed before this Court. 33. On the allegation that Convex mirrors have not been erected in the blind corners, the petitioners explained that speed breakers will be provided as the road work is in progress and the area is fully covered with material handling with huge girders and the mirrors may break while material handling. It is not the case of the respondent that the explanation offered is not tenable or lacks bonafide. In any event, the said Convex mirrors have been since provided after lodging of the complaint. 34.
It is not the case of the respondent that the explanation offered is not tenable or lacks bonafide. In any event, the said Convex mirrors have been since provided after lodging of the complaint. 34. In the case of Mohamed Ismail Khizer Hussain & Co., vs. State of Madras, reported in 1965-1-LLJ-300, the case arose out of a writ petition, wherein a direction was sought for upon the Inspector of Factories not to enforce the Rule 3 of the Factories Rules in respect of the petitioner's tannery. It is the case of the petitioner therein, he was carrying on the business of tanning hides and skins in the said premises from 1954 for over 35 years after obtaining licence under the Factories Act. The Assistant Inspector of Labour inspected the factory called upon the petitioner to submit the site plan, the plan of elevation of factory building for approval by the Chief Inspector of Factories by referring to Rule 3 of the Madras Factory Rules, 1950. The such plans were furnished, however the Inspector of Factories declined approval stating that the minimum height of the wall should be 8 feet etc., and the building was objectionable. It was pointed out that the building was used as a factory for 35 years, it has not been reconstructed or re-modled after the coming into force of the Factories Act. The petitioner expressed his willingness to remove the thatched sheds. However, the Chief Inspector of Factories submitted that the plans are not submitted, prosecution would be initiated. The appeal to the Government as against the said order, had no results. Once again, the petitioner requested for approval of the plans after removing the thatched sheds. The Inspector of Factories filed the complaint before the Sub-Divisional Magistrate for contraventions of the provisions of the Factories Act.
The appeal to the Government as against the said order, had no results. Once again, the petitioner requested for approval of the plans after removing the thatched sheds. The Inspector of Factories filed the complaint before the Sub-Divisional Magistrate for contraventions of the provisions of the Factories Act. Justice Sri Srinivasan, (as he then was) after taking note of Section 6 of the Act and Rule 3 of the Factories Rules and pointed out that the Section does not apparently require that in the case of a factory, which was in existence, the approval of the site should be sought for after coming into force of the Act and that no provision has been brought to the notice of the Court that even in the case of existing factory buildings, which were in use prior to passing of the Act, the approval with regard to the site should be taken. The Department's case was by referring to Rule 3 stating that the later part of the rule prohibits any manufacturing process being carried on in any buildings without previous permission in writing of the Chief Inspector. It was held that the previous permission i.e., contemplated under Rule 3 relates to a case, where the factory itself is constructed after the coming into force of the Act and the Rules and the Rule cannot go beyond the scope of Act and held that it could not be made applicable to the factories, which had been in existence for the decades in the past. Further, by taking note of the fact that the specifications under the Rules are intended for the benefit of the workers, this Court issued certain directions by which the building could be protected without being demolished. 35. Admittedly, the petitioner's factory is also stated to be more than 100 years old. It is the case of the petitioners that the building has been so constructed to have natural ventilation and necessity to provide a ventilating plant does not arise. The respondent being a statutory authority cannot be oblivious to the facts. There appears to be a no inspection done after the explanation was submitted. Therefore, unless the authority is satisfied that the ventilation plant itself has to be established, then and then only the question of it being maintained or certified would arise. Thus, lack of application of mind is manifest on the face of the complaint. 36.
There appears to be a no inspection done after the explanation was submitted. Therefore, unless the authority is satisfied that the ventilation plant itself has to be established, then and then only the question of it being maintained or certified would arise. Thus, lack of application of mind is manifest on the face of the complaint. 36. In Re Seshadrinatha Sarma reported in 1966-2-LLJ-238, the Hon'ble Justice M.Anantanarayanan, the then Officiating Chief Justice of this Court held that the element of mens rea, will have to be excluded with regard to the Factories Act, as the object of the Act, is certainly social welfare, but that is, as pointed out by the Supreme Court, not conclusive. The object is to bring under the purview of the legislation, certain kinds of establishments employing labour beyond a certain limit and concerned in production; that is for the sake of welfare of labour so that various restrictions and conditions might be imposed on the proprietors in the interest of the public and the health and welfare of the labourers employed. It was further held that no doubt, the infringements have been brought within the scope of criminal jurisdiction; but that is clearly for the purpose of effective and speedy relief and main intention is to impose conditions of this kind, on broad grounds of social welfare and not at all merely to deal with persons in-charge of establishments because their activities might be antisocial. Therefore, the object of the Act and as to why the prosecution has been contemplated has to be clearly understood as pointed out in the said decision. 37. Thus, this Court is fully satisfied that the impugned complaints are vitiated due to total non-application of mind and therefore, liable to be quashed. Question No.(iii) 38. The learned counsel appearing for the petitioner placed reliance on the decision of the High Court of Madhya Pradesh, Jabalpur Bench, in the case of S.K.Prasad & Anr.,(supra), and the decisions of the Karnataka High Court in the case of General Manager, Wheel and Axle Plant, Bangalore (supra), and D.Ghosh Roy, Chief Workshop Manager, Carriage Repair Shop, South Western Railway & Anr.,(supra) in support of his contentions submitted that as no sanction has been obtained under Section 197 Cr.P.C, the complaints are liable to be quashed. 39.
39. The learned Additional Public Prosecutor pointed out that non-obtaining of sanction under Section 197 Cr.P.C., may not be a ground to quash the complaint, as it is a curable defect and even now, the respondent can obtain sanction and sufficient time may be granted. The learned Additional Public Prosecutor submitted that the sanction order has been obtained from the Chief Inspector of Factories. 40. Though the sanction could be obtained after launch of the prosecution, this Court is not convinced to grant any liberty to the respondent, more so when, no action has been taken for the past two years in all these eleven cases and that apart, the complaint itself is vitiated by total non-application of mind. 41. The Hon'ble Supreme Court in the case of State of Maharashtra (supra) while examining the correctness of the judgment of the Bombay High Court affirming the order of the trial Judge discharging the accused due to absence of sanction by the appropriate authority under Section 197 Cr.P.C., for prosecuting a retired public servant. The Hon'ble Supreme Court pointed out that sofar public servants are concerned, the cognizance of offence by any Court is barred by Section 197 of the Code, unless the sanction is obtained from the appropriate authority, if the offence alleged to have been committed was in discharge of the official duty. At this stage, it would be beneficial to refer to the relevant portions of the decision:- 5....So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred.... ....
Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred.... .... A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. 6.....Use of the expression, ‘official duty’ implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty.... ....Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant.... 42. The High Court of Karnataka in the case of D.Ghosh Roy, Chief Workshop Manager, Carriage Repair Shop, South Western Railway & Anr., (supra), while dealing with a case arising out of a prosecution launched against the carriage repair shop of south western Railway held that in order to prosecute the Manager of the factory under the Factories Act, the prosecuting agency ought to have obtained sanction.
Following the decision of the Hon'ble Supreme Court in the case of State of Maharashtra, (supra), the Hon'ble High Court of Karnataka in the case of General Manager, Wheel and Axle Plant, Bangalore & Anr., (supra), has held that sanction under 197 Cr.P.C., is required and in the absence of sanction, prosecution cannot be lodged. Similar view was taken by the High Court of Madhya Pradesh, Jabalpur Bench, in the case of S.K.Prasad & Anr., (supra), which also related to the Manager of a Coach Rehabilitation Workshop at Bhopal. Thus, by following the above decisions, it is held that the prosecution launched against the petitioners, who are public servant without obtaining permission as contemplated under Section 197 Cr.P.C., cannot be sustained and accordingly, has to be quashed. Question No.(iv) 43. Section 117 of the Act deals with 'Protection to persons acting under the Act', it states that no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under the Act. In order to seek protection under Section 117 of the Act, it has to be established that the act in respect of which, the prosecution is launched, must have been done or intended to be done by the accused under the Act and it must have been done in good faith. 44. Admittedly, in the instant case, the prosecution has been launched in respect of an Act done (not done) by the accused under the Act. The second test would be whether the petitioners' have acted in good faith. In the preceding paragraphs, the replies given by the petitioners to the show cause notice having referred to. On a bare perusal of those replies, it cannot be stated that the acts are contraventions based on which, prosecution has been launched, have not been done in good faith. Therefore, this is one more ground to quash the complaint. 45. The Hon'ble Supreme Court in the case of State of Gujarat vs. Kansara Manilal Bhikhalal, reported in AIR 1964 SC 1893 , held that it is necessary to establish that what is complained of is something which the Act requires should be done or should be omitted to be done and there must be a compliance or an intended compliance with a provision of the Act, before the protection is claimed under Section 117 of the Act.
For better appreciation the relevant portion of the judgment is extracted hereunder:- 9. It is not necessary to refer to the lines of reasoning adopted in these cases. The language of this protecting clause is not limited to officers but is made wide to include “any person”. It thus gives protection not only to an officer doing or intending to do something in pursuance or execution of this Act but also to “any person”. But the critical words are “any thing” done or intended to be done” under the Act. The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions. It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act. It is not sufficient to say that the act was honest. That would bring it only within the words “good faith”. It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done. There must be a compliance or an intended compliance with a provision of the Act, before the protection can be claimed. The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise. 46. The observations of the Hon'ble Supreme Court would squarely be applicable to the case of the petitioners, as their intended compliance, was done in a good faith and cannot be stated to be a case of an intended breach of the Act. In any event, there is no such allegation in the complaint. For all the above reasons, the petitioners are entitled to succeed. CRL.O.P.Nos.13624 to 13627 of 2014 47. These petitions have been filed by the Manager and Occupier of the Locomotive Workshop Southern Railways, Perambur to quash the criminal complaints filed by the respondent/complainant for alleged violation of the provisions of the Factories Act, 1948 and the Tamil Nadu Factories Rules, 1950. 48.
CRL.O.P.Nos.13624 to 13627 of 2014 47. These petitions have been filed by the Manager and Occupier of the Locomotive Workshop Southern Railways, Perambur to quash the criminal complaints filed by the respondent/complainant for alleged violation of the provisions of the Factories Act, 1948 and the Tamil Nadu Factories Rules, 1950. 48. Apart from the points canvassed in the earlier batch of cases, the learned counsel for the petitioner submitted that the complaints having taken on file by the Court below without application of mind. It is stated that in respect of the same allegation and with identical pleadings, two complaints have been filed against each of the petitioners. In other words, it is submitted that the allegations in C.C.No.2638 of 2014 and 2639 of 2014 are identical. Similarly, the allegations in C.C.Nos.2640 and 2641 of 2011 are identical and both sets of complaints have been filed against the petitioners without application of mind and the same has been taken on file by the Court without reference to the averments made in the complaint, though both the two sets of complaints were presented on the same day. Therefore, it is submitted that the complaint deserves to be quashed on the grounds itself. Further, the learned counsel appearing for the petitioner submitted that show cause notice was issued on 24.10.2013, granting seven days time to show cause as to why prosecution should not be initiated for the irregularities noticed on 18.09.2013, at the time of inspection. Three irregularities were cited namely, violation of Section 41 read with Rule 61F, Section 38 read with Rule 61(11) (a) and (e) and Section 41G read with Rule 61-M (1) to (5). The petitioners submitted their reply dated 31.10.2013, well within the period of seven days and each of the allegations were explained and steps taken by the petitioner were enumerated. Further, future plans were also intimated and it was requested that the show cause notice may be dropped. The learned counsel appearing for the petitioner by referring to the communication dated 24.10.2013, issued by the Deputy Chief Mechanical Engineer to the subordinate officials giving instructions regarding the procedures to adhere to immediately and submitted that bonafide action has been taken and without reference to any of the explanation offered, the complaints have been filed without application of mind. 49.
49. Further, it is submitted that the complaint itself is barred by limitation in terms of Section 106 of the Act. It is submitted that the irregularity is said to have been noticed in the inspection conducted on 18.09.2013 and the complaint ought to have been filed within three months, i.e., on or before 17.12.2013, and summons were issued by the Court only on 21.03.2014 and therefore, the complaint is barred by limitation. Further, it is submitted that the proviso under Section 106 will not stand attracted, since the respondent/complainant did not give any written order, directing compliance of certain defects. Therefore, in the absence of any such written order, extended period of limitation is not available to the respondent. 50. Mr.C.Iyyapparaj, the learned Government Advocate appearing for the respondent while reiterating the stand taken by the learned Additional Public Prosecutor submitted that the complaint lodged is well within the time and the complaint was filed on 17.12.2013, which is evident from the signature of the complainant in the complaint and the date of issuance of summons is not the criteria for computing limitation. Further, it is submitted that all the contentions on the merits as raised by the petitioners, have to be canvassed before the trial Court and the same cannot be raised before this Court in a petition under Section 482 Cr.P.C. 51. After hearing the learned counsel appearing for the parties, this Court on perusal of the records placed, finds that the complaint was filed on 17.12.2013, which is seen from the certified copy of the complaint, wherein the date on which the complainant had signed is shown as 17.12.2013. Though the summons have been issued subsequently, the complaint having been preferred on 17.12.2013, the same is held to be within the period of limitation. 52. As regards the other points canvassed, the observations and the findings rendered by this Court in the previous paragraphs would be equally applicable to these batch of cases, the complaint is vitiated by total non-application of mind. The complainant did not afford an opportunity to the petitioners to rectify the so called defects and the show cause notice itself was issued with a threat of prosecution. The bonafides of the explanation offered, has not been considered rather not even referred to in the complaint.
The complainant did not afford an opportunity to the petitioners to rectify the so called defects and the show cause notice itself was issued with a threat of prosecution. The bonafides of the explanation offered, has not been considered rather not even referred to in the complaint. At the first instance, when the complaint is perused one gets an impression that the petitioners were never put on notice and no explanation was submitted by them. When the complainant has issued a show cause notice on 24.10.2013, calling upon the petitioners to explain within seven days, as to why the prosecution should not be launched or bound to disclose the issuance of notice, the reply given and then make a statement in the complaint as to how the offence still continues. 53. In the absence of any of these grounds in the complaint, it is a good ground to quash the complaint. The respondent has not explained as to why two complaints were given against the same petitioner in respect of the same allegation with verbatim averments. In the absence of any explanation to this, necessarily this is also a ground to quash the complaint, as being vitiated for total non-application of mind. Hence, for all the above reasons, the petitioners are entitled to succeed. In the result, the Criminal Original Petitions in CRL.O.P.Nos.13624 to 13627 and 15980 to 15984, 15374 to 15379 of 2014 are allowed and the complaints which are subject matter of these cases are quashed. Consequently, connected miscellaneous petitions are closed.