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Gujarat High Court · body

2016 DIGILAW 775 (GUJ)

Indian Oil Co. Ltd. v. C. M. Bhatia

2016-04-07

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. Identical questions of law and facts are raised in these three petitions and were heard together and are disposed of by this common judgment & order. 2. By way of this applications under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has challenged the initiation of proceedings under the provisions of the Gujarat Factories Rules, 1963. 3. In Special Criminal Application No. 1147 of 1994, the petitioner Indian Oil Corporation (hereinafter referred to as the "Oil Company") has challenged the initiation of Criminal Case No.3312/90 by the respondent No.1 herein under the provisions of Rule 61(1)(d) and Rule 61(6) of the Gujarat Factories Rules, 1963 pending before the Court of learned Judicial Magistrate, First Class, Rajkot and has also challenged the order dated 12.01.1994, whereby an application for discharge being Exh. 6 came to be rejected by the learned Magistrate. 4. Similarly, Special Criminal Application No. 1148 of 1994, the petitioner Oil Company has challenged the initiation of Criminal Case No.3313/90 by the respondent No. 1 herein under the provisions of Rule 61(1)(d) and Rule 61(6) of the Gujarat Factories Rules, 1963 pending before the Court of learned Judicial Magistrate, First Class, Rajkot and has also challenged the order dated 12.01.1994, whereby an application for discharge being Exh. 6 came to be rejected by the learned Magistrate. 5. In Special Criminal Application No. 1080 of 1994, the petitioner Oil Company has challenged the initiation of Criminal Case No. 3311/90 by the respondent No. 1 herein under the provisions of Rule 61(1)(d) and Rule 61(6) of the Gujarat Factories Rules, 1963 pending before the Court of learned Judicial Magistrate, First Class, Rajkot and has also challenged the order dated 12.01.1994, whereby an application for discharge being Exh. 6 came to be rejected by the learned Magistrate. 6. Common facts which emerge from these three petitions are enumerated hereunder: 6.1 The petitioner Oil Company is a Government of India undertaking and the Oil Company has its Bottling Plant for Liquefied Petroleum Gas (LPG) at Navagam, Rajkot. It is the case of the petitioner that for storage or transportation of compressed gas, liquefied or dissolved gas, metal bottles or cylinders are used. It is further case of the petitioner that for storage of petroleum products, there are horton spheres and bullets. It is the case of the petitioner that for storage or transportation of compressed gas, liquefied or dissolved gas, metal bottles or cylinders are used. It is further case of the petitioner that for storage of petroleum products, there are horton spheres and bullets. It is the case of the petitioner that pressure vessels and gas cylinders are required to be tested as per the provisions contained in the Indian Explosives Act, 1884 read with Static and Mobile Pressure Vessels (Unfired) Rules, 1981 (hereinafter referred to as "the Rules of 1981"). 6.2 It appears from the record that on 29.05.1990, the respondent No. 1, officiating as Senior Inspector of Factories, Rajkot, visited the plant and made his report. As can be culled out from the record of these petitions, as per the opinion/report of the respondent No. 1, the hydraulic test is required to be carried out as per the Gujarat Factories Rules, 1963 at an interval of four years and not at an interval of five years and therefore, it was alleged that the petitioner has committed breach and are liable of contravention of Rule 61(1)(d) read with Rule 61(6) of the Gujarat Factories Rules, 1963 and on this allegation, the present three criminal cases came to be filed before the learned Judicial Magistrate, First Class, Rajkot. As the record indicates, the process came to be issued by the learned Magistrate on 05.12.1990 in all the three cases. The record further indicates that in these three cases, the petitioner herein filed application for discharge, which came to be rejected by separate order of even date, i.e., 12.01.1994, against which these three petitions are filed. 7. Heard Mr. M.R. Bhatt, learned Senior Advocate with Mrs. Mauna Bhatt, learned counsel for the petitioner, Mr. L.B. Dabhi, learned APP for respondents No. 1 and 2 and Mr. Kshitij Amin, learned Central Government counsel for respondents No. 3 and 4. 8. Mr. Bhatt, learned senior advocate appearing for the petitioner has taken this Court through the impugned complaint filed by respondent No. 1 as well as the orders dated 12.01.1994. Mr. Bhatt contended that the only allegation against the petitioner is that there is contravention of Rule 61(1)(d) read with Rule 61(6) of the Gujarat Factories Rules. Mr. 8. Mr. Bhatt, learned senior advocate appearing for the petitioner has taken this Court through the impugned complaint filed by respondent No. 1 as well as the orders dated 12.01.1994. Mr. Bhatt contended that the only allegation against the petitioner is that there is contravention of Rule 61(1)(d) read with Rule 61(6) of the Gujarat Factories Rules. Mr. Bhatt contended that the Gujarat Factories Rules, 1963 and more particular Rule 61 is prescribed under the provisions of section 31(2) read with section 112 of the Factories Act, 1948. Mr. Bhatt further contended that Rule 61(2) clearly prescribes that nothing in this Rule apply to metal bottles or cylinders used for storage or transport of compressed gases or liquefied gases under pressure and therefore, the complaints filed against the petitioner are without jurisdiction. It was contended that Rule 61 would not apply to the petitioner as the petitioner is governed by the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 framed under Explosives Act, 1884. Mr. Bhatt further submitted that as per the Rules of 1981, tests are required to be carried out at an interval of every five years and not at an interval of every four years and as the petitioners are governed by the special provisions and as provided under Rule 61(2) of the Gujarat Factories Rules, there is a specific exclusion and therefore, the complaints are completely misconceived in law and are required to be quashed as prayed for. Relying upon the relevant Rules as provided under the Rules of 1981, it was submitted that the impugned complaints are not only without jurisdiction but is filed only to harass the officers of the Oil Company. It was also contended that even though these relevant factors were pointed out to the learned Magistrate, the applications filed for discharge have been wrongly rejected. Mr. Bhatt therefore submitted that these petitions deserve to be allowed as prayed for by exercise of inherent power under section 482 of the Code in the interest of justice and to prevent abuse of process of law. Mr. Bhatt submitted that the petitioners strictly adhered to the provisions of the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 and have also produced such reports for perusal of the Court and to buttress his argument that the petitioner is not governed by the Gujarat Factories Rules. 9. Per contra, Mr. Mr. Bhatt submitted that the petitioners strictly adhered to the provisions of the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 and have also produced such reports for perusal of the Court and to buttress his argument that the petitioner is not governed by the Gujarat Factories Rules. 9. Per contra, Mr. Dabhi, learned APP has submitted that the petitions are liable to be dismissed and has relied upon the affidavit-in-reply filed by respondent No. 1 dated 17.10.1994. It was contended that the Gujarat Factories Rules, 1963 and more particularly Rule 61 of the Gujarat Factories Rules, 1963 would apply and as per Rule 61(10) of the Gujarat Factories Rules, the requirement of Rule 61 shall be in addition to and not in derogation to any other rules or regulations. Mr. Dabhi, learned APP therefore contended that prima facie, the contravention of the Factories is alleged in the impugned complaints. It was contended that in the facts of these cases therefore, these are not fit cases where this Court can exercise the inherent power under section 482 of the Code and the petitions are misconceived and therefore, deserve to be dismissed. 10. Mr. Khsitij Amin appears for respondents No. 3 and 4. 11. No other and further submissions are made by the learned counsel appearing for the parties. 12. Before reverting to the submissions made by the learned counsel appearing for the parties, it would be appropriate to refer to the relevant provisions of Acts and Rules, which are as under:- The Factories Act, 1948 "31. Pressure plant - (1) If in any factory, any plant or machinery or any part thereof is operated at a pressure above atmospheric pressure, effective measures shall be taken to ensure that the safe working pressure of such plant or machinery or part is not exceeded. (2) The State Government may make rules providing for the examination and testing of any plant or machinery such as is referred to in sub-section (1) and prescribing such other safety measures in relation thereto as may in its opinion be necessary in any factory or class or description of factories. (3) The State Government may, by rules, exempt, subject to such conditions as may be specified therein, any part of any plant or machinery referred to in sub-section (1) from the provisions of this section." "112. (3) The State Government may, by rules, exempt, subject to such conditions as may be specified therein, any part of any plant or machinery referred to in sub-section (1) from the provisions of this section." "112. General power to make rules.-The State Government may make rules providing for any matter which, under any of the provisions of this Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of this Act." Gujarat Factories Rules, 1963 *61. Pressure plant-(1) Every plant or machinery other than the working cylinders of prime movers used in a factory, and operated at a pressure greater than atmospheric pressure, shall be - (a) of good construction, sound material, adequate strength and free from any patent defect; (b) properly maintained in a safe condition; (c) fitted with- (i) a suitable safety valve or other effective device to ensure that the maximum permissible working pressure of the vessel shall not be exceeded; (ii) a suitable pressure gauge easily visible and designed to show, at all times, the correct internal pressure in lbs. per square inch, or kilograms per square centimetre and marked with a prominent red mark as the safe working pressure of the vessel; (iii) a suitable stop valve or valves by which the vessel or the system of vessels may be isolated from other vessel or source of supply of pressure; (iv) a suitable drain cock or valve at the lowest part of the vessel for the discharge of collected liquid; (d) thoroughly examined by a competent person- (i) externally once in every period of six months, to ensure general condition of the vessel and the working of its fittings, and (ii) internally, once in every period of twelve months, to ensure condition of the walls, seams and ties, both inside and outside the vessel, soundness of parts of the vessel, and the effects of corrosion. If by reason of construction of the vessel, a thorough internal examination is not possible, this examination may be replaced by a suitable hydraulic test which shall be carried out once in every two years; except that where the vessels in continuous process cannot be frequently opened, the period of internal examination may be extended to four years. If by reason of construction of the vessel, a thorough internal examination is not possible, this examination may be replaced by a suitable hydraulic test which shall be carried out once in every two years; except that where the vessels in continuous process cannot be frequently opened, the period of internal examination may be extended to four years. (iii) by an hydraulically test at intervals of not more than four years provided that in respect of pressure vessels with thin walls such as sizing cylinders made of copper or any other non-ferrous metal periodic hydraulic test may be dispensed with on the condition that the requirements laid down in clause (11) are fulfilled. Provided that it shall be sufficient for the purpose for clause (a) if the safety valve, pressure gauge and stop valve or other suitable automatic device are mounted on a pipe line immediately adjacent to the vessel and where there is a range of two or more similar vessels in a plant served by the same pressure lead, only one set of such mountings need be fitted provided they cannot, are isolated from any of the vessels. (2) Every vessel other than part of a prime mover operated at a pressure greater than atmospheric pressure, and not so constructed, as to withstand with safety the maximum permissible working pressure at the source of supply or the maximum pressure which can be obtained in the pipe connecting the vessel with any other source of supply shall be fitted with a suitable reducing valve or other suitable automatic device to prevent the safe working pressure of the vessel being exceeded. (3) In case owing to the nature of the process or the action of the contents of the vessel, a pressure gauge or safety valve or both cannot Work reliably, a tested reliable working thermometer with a sufficient large scale on which shall be clearly marked the maximum temperature in the vessel or pyrometers or rupture discs in addition to the pressure gauge and safety valve may be titled as may be directed by the Chief Inspector. (4) If during thorough examination doubt arises as to the ability of the vessels to work safely until the next examination provided for in these rule then the competent person shall enter in the register prescribed a reasoned statement to authorise the vessel for further work subject to a lowering of pressure or to more frequent inspection or subject to both of these requirements. (5) No vessel which has undergone alterations or repairs shall be taken into use unless it is thoroughly examined by a competent person. (6) A report of the result of every examination made shall be completed in the Form No. 11 and signed by the person making the examination, and shall be kept available for perusal by an Inspector at any time while the vessel is in service or in any such manner as is approved by the Chief Inspector of Factories. (7) No vessel which has previously been used shall be taken into use in any factory for the first time until it has been examined and reported in accordance with these rules and no new vessel shall be taken into use unless there has been obtained from the maker of the vessel or from a competent person a certificate specifying the maximum permissible working pressure thereof, and stating the nature of the test to which the vessel and its fittings (if any) have been subjected, and the certificate is kept available for perusal by an inspector, and the vessel is so marked as to enable it be identified, to which the certificate relates. (8) Where the report of any examination under this rule specifies conditions for securing the safe working of a vessel the vessel shall not be used except in accordance with these conditions. (9) The competent person making the report of any examination under this rule, shall within seven days of the completion of the examination sent to the Inspector a copy of the report in every case where the maximum permissible working pressure is reduced, or the examination shows that the part cannot continue to be used with safety unless certain repairs are carried out immediately or within a specified time. (10) The requirement of the rule shall be in addition to and not in derogation of the requirement of any other Act, rules a regulation. (10) The requirement of the rule shall be in addition to and not in derogation of the requirement of any other Act, rules a regulation. *(11)(a) In respect of every sizing cylinder and shell of which is made of copper sheet or any other non-ferrous materials and which has been taken into use before the 8th April 1950 the manager shall make available to the Inspector and to a competent person examining such cylinder all available information show the date on which such cylinder was taken into use for the first time along with full particulars as to the thickness of the shell and the safe working pressure recommended by the manufacturers when the cylinder was taken into use for the first time: Provided that when the information as aforesaid is not available any other evidence relevant to show the age of the cylinder shall be so submitted by the manager where upon the Chief Inspector shall determine the age of the cylinder on the evidence so submitted or other oral evidence that may be presented to him by the manager or produced by an Inspector and the age so determined shall be considered as the age of cylinder for the purpose of this rule". (b)(i) The minimum thickness of the shell of a sizing cylinder shall be actually measured as and when possible. (ii) If during its working life the shell of a seizing cylinder is at any time punctured requiring repairs to the cylinder to close the punctured portion the thickness of the sheet of the shell near sueh puncture of opening shall be measured by a competent person and the record maintained in Form No. 11. (c)(i) No sizing cylinder shall be subjected to a working pressure greater than the safe working pressure recommended by the manufacturers of such cylinder at the time when such cylinder was first taken into use in a factory. (c)(i) No sizing cylinder shall be subjected to a working pressure greater than the safe working pressure recommended by the manufacturers of such cylinder at the time when such cylinder was first taken into use in a factory. *"(ii) The safe working pressure of a, sizing of cylinder which has been in use for more than 5 years shall be calculated in accordance with the, method (it) stated hereinbelow and where the minimum thickness has been actually measured as required by sub-clause (i) of clause (b), such pressure shall be calculated in accordance with the method (y) or (z) stated hereinbelow: Provided the lowest figure obtained by any one of these methods shall alone be considered as the safe working pressure of a sizing cylinder, namely:- (x) The safe working pressure of a sizing cylinder shall be reduced at the rate of 4 per cent of the original working pressure for every year of its use after the first five years. (y) The safe working pressure of the sizing cylinder shall bear the same proportion to the original safe working pressure when first taken into use as the minimum thickness of the shell material as actually measured at any time bears to the original thickness of the shell material when first taken into use. (z) The safe working pressure of a sizing cylinder shall be calculated on the basis of the minimum thickness actually measured so that the tensile stress in the shell not exceed safe working stress for the material of the shell. If the shell is made of copper the safe working tensile stress shall be taken, to be not more than 351.5 kilograms per square centimetres." (d) No sizing cylinder shall be continued to be used for more than twenty-live years after it was first taken into use: Provided that this sub-rule shall not be operative for one year from the date when this rules comes in force: Provided further that the Chief Inspector of Factories may authorise the use of sizing cylinders after a period of 25 years upto a further period of not more than 5 years if tests are carried out and further details are made available to his satisfaction to indicate that the cylinder can be used with safety. (e) An Inspector may by an order in writing direct the manager to produce within time specified in such an order a report of examination of a sizing cylinder in Form No. 11 by a competent person who shall not be an employee of the factory in which the cylinder is in use. (12) Nothing in this rule shall apply to-. (a) any vessel which comes within the scope of the Indian Boilers Act, 1923, (b) metal bottles of cylinders used for the storage or transport of compressed gases or liquefied or dissolved gases under pressure." It deserves to be noted that with effect from 15.02.1995, Rule 61 of the Gujarat Factories Rules, 1963 has been substituted, which reads as under- "61. Pressure vessels or plant:-(1) Interpretation:-In this rule:- (a) "design pressure' means the maximum pressure that a pressure vessels or plant is designed to withstand safety when operating normally; (b) "maximum permissible working pressure" means the maximum pressure at which a pressure vessel or plant plant is permitted to be operated or used under this rule and is determined by the technical requirement of the process. (c) "plant" means a system of piping that is connected to a pressure vessel and so used to contain a gas vapour or liquid under pressure greater than the atmospheric pressure and includes the pressure vessels. (d) "pressure vessel" means a vessel that may be used for containing, storing, distributing, transferring, distilling, processing or otherwise handling any gas, vapour or liquid under pressure greater than the atmospheric pressure and includes any pipeline fitting or other equipment attached thereto or used in connection therewith. (2) Exception:-Nothing in this rule shall apply to - (a) Vessels made of ferrous materials having an internal operating pressure not exceeding 1 kilogram per square centimeter; (b) steam boilers, steam and feed-pipes and their fittings coming under the purview of the Indian Boilers Act, 1923; (c) Metal bottles or cylinders used for storage or transport of compressed gases or liquefied or dissolved gases under pressure covered by the Gas Cylinder Rules, 1981 framed under the Indian Explosives Act, 1884; (d) Vessels in which internal pressure is due solely to the static heat or liquid; (e) Vessels with a nominal water capacity not exceeding 500 liters connected in a water-pumping system containing air that is compressed to service as cushion. (f) Vessels for unclear energy application; (g) refrigeration plant having a capacity of 3 tons or less or refrigeration's in 24 hours; and (h) working cylinders of steam engines or prime movers and steam trapes; turbine casings; compressor cylinders; steam separators or dryers; steam strainers; steam de-superheaters; oil separators; air receivers for fire sprinkler installations; air receivers of monotype machines provided maximum working pressure of the air receiver does not exceed 1.33 kilograms per square centimeter and the capacity of 85 litres; air receivers of electrical circuit breakers; air receivers of electrical relays; air vessels on pumps, pipe coils accessories of instruments and appliances such as cylinders and piston assemblies used for operating relays and interlocking type of guards, vessels with liquids subjected to static heat only; and hydraulically operating other than any cylinders communicating with an air loaded accumulator. (3) Design and construction:-Every pressure vessels or plant used in factory:-(a) shall be properly designed on sound engineering practice; (b) shall be of good construction, sound material, adequate strength and free from any patent defects; and (c) shall be properly maintained in a safe condition: Provided that the pressure vessels or plant in respect of the design and construction of which there is an Indian standard or a standard of the country of manufacture or any other law or regulation in force, shall be designed and constructed in accordance with the said standard, law or regulation, as the case may be, and a certificate thereof shall be obtained from the manufacturer or from the competent person which shall be kept and produced on demand by an Inspector. Safety devices:- Every pressure vessel shall be fitted with:-- (a) a suitable safety value or other effective pressure relieving device of adequate capacity to ensure that the maximum permissible working pressure of the pressure vessels shall not be exceeded. It shall be set to operate at 'a pressure not exceeding the maximum permissible working pressure and when more than one protective device is provided, only one of the devices need be set to operate at the maximum permissible working pressure and the additional device shall be set to discharge at a pressure not more than 5 per cent in excess of the maximum permissible working pressure. (b) a suitable pressure gauge with a dial range not less than 1.5 times the maximum permissible working pressure, easily visible and designed to show at all times the correct internal pressure and marked with a prominent red mark at the maximum permissible working pressure of the pressure vessel; (c) a suitable nipple and globe valve connected for the exclusive purpose of attaching a test pressure gauge for checking the accuracy of the pressure gauge referred to in clause (b) of this sub-rule; (d) a suitable stop or valves by which the pressure vessel may be isolated from other pressure vessels or plant or source of supply of pressure. Such a stop valve or valves shall be located as close to the pressure vessel as possible and shall be easily accessible; (e) a suitable drain cock or valve at the lowest part of the pressure vessel for the discharge of the liquid or other substances that may collect in the pressure vessel: Provided that it shall be sufficient for the purpose of this sub-rule if the safety valve or pressure relieving device, the pressure gauge and the stop valve are mounted on a pipe line immediately adjacent to the pressure vessel and where there is a range of two or more similar pressure vessel served by the same pressure lead, only set of such mountings need be fitted on the pressure lead immediately adjacent to the range of pressure vessels provided they can not be isolated. Pressure reducing devices:- (a) Every pressure vessel which is designed for a working pressure less than the pressure at the source of supply; or less than the pressure which can be obtained in the pipe connecting the pressure vessel with any other source of supply, shall be fitted with a suitable pressure reducing value or other suitable automatic device to prevent the maximum permissible working pressure of the pressure vessel exceeded. (b) To further protect the pressure vessel in the event of failure of the reducing valve or device, at least one safety valve having a capacity sufficient to release all the steam, vapour or gas without undue pressure rise as determined by the pressure at the source of supply and the size of the pipe connecting the source of supply shall be fitted on the low pressure side of the reducing valve. Pressure vessel or plant being taken into use:- (a) No new pressure vessel or plant shall be taken into use in a factory after coming into force of this rule unless it has been hydrostatically tested by a competent person at a pressure at least 1, 3 times the designed pressure, and no pressure vessel or plant which has been previously used or has remained isolated or idle for a period exceeding 2 months or which has undergone alterations or repair shall be taken into use in a factory unless it has been thoroughly examined by a competent person externally and internally if practicable and has been hydrostatically tested by the competent person at a pressure which shall be 1.5 times the maximum permissible working pressure:- Provided, however, that the pressure vessel or plant which is so designed and constructed that it cannot be safely fitted with water or liquid or is used in service when even some traces of water cannot be tolerated shall be pneumatically tested at a pressure not less than the design pressure or the maximum permissible working pressure as the case may be:- Provided further that the pressure vessel or plant is lined with glass shall be tested hydrostatically or pneumatically as required at a pressure not less than the design pressure or maximum permissible working pressure as the case may be. Design pressure shall be not less than the maximum permissible working pressure and shall take into account the possible fluctuations of pressure during actual operation. (b) No pressure vessel or plant shall be used in a factory unless there has been obtained from the maker of the pressure vessel or plant or from the competent person a certificate specifying the design pressure or maximum permissible working pressure thereof and stating the nature of tests to which the pressure vessel or plant and its fittings (if any) have been subjected and every pressure vessel or plant so used in a factory shall be marked so as to enable it to the identified as to be the pressure vessel or plant to which the certificate relates and the certificate shall be kept available for perusal by the Inspector. (c) No pressure vessel or plant shall be permitted to be operated or used of a pressure higher than its design pressure, or the maximum permissible working pressure as shown in the certificate. (c) No pressure vessel or plant shall be permitted to be operated or used of a pressure higher than its design pressure, or the maximum permissible working pressure as shown in the certificate. (7) In-service test and examinations:-(a) Every pressure vessel or plant in service shall be thoroughly examined by a competent person:- (i) externally, once in every period of six months; (ii) internally, once in every period of twelve months:- Provided that if by reason of the construction of a pressure vessel or plant, a thorough internal examination is not possible, this examination may be replaced by a hydrostatic test which shall be carried out once in every period of two years: Provided further that for a pressure vessel or plant in continuous process which cannot be frequently opened, the period of internal examination may be extended to four years; and (iii) hydrostatically tested once in every period of four years:- Provided that in respect of a pressure vessel or plant with thin walls such as sizing cylinder made of copper or any other non-ferrous metal, periodic test may be dispensed with subject to the condition that the requirement laid down in sub-rule (8) are fulfilled:- Provided further that when it is impracticable to carry out thorough external examination of any pressure vessel or plant every six months as required in sub-clause (i) of this clause or it owning to its construction and Use a pressure vessel or plant cannot be hydrostatically tested as required in sub-clauses (ii) and (iii) of this clause thorough external examination of the pressure vessel or plant shall be carried out at least once in every period of two years a thorough systematic nondestructive test like ultrasonic test for metal thickness or other defects of all parts the failure of which might lead, to eventual rupture of the pressure vessel or plant shall be carried out. (b) The pressure for the hydrostatic test to be carried out for the purpose of this sub-rule shall be 1.25 times the design pressure or 1.5 times the maximum permissible working pressure whichever is less. (b) The pressure for the hydrostatic test to be carried out for the purpose of this sub-rule shall be 1.25 times the design pressure or 1.5 times the maximum permissible working pressure whichever is less. (8) Thin walled pressure vessel or plant - (a) In respect of any pressure vessel or plant or thin walls such as seizing cylinder made of copper or any other non-ferrous metal, the maximum permissible working pressure for every year or use after the first five years and no such cylinder shall be allowed to continue to be used for more than twenty years after it was first taken into use. (b) If any information as to the date of construction, thickness of walls or maximum permissible working pressure is not available the age of such pressure vessel or plant shall be determined by the competent person in consultation with the Chief Inspector from the other particulars available with the manager. (c) Every new and second hand pressure vessel or plant of thin walls to which repair is likely to effect its strength or safety have been carried out, shall be tested before use to at least 1.5 times its maximum permissible working pressure. (9) Report by competent person:- (a) If during any examination any doubt arises as to the ability of the pressure vessel or plant to work safely until the next prescribed examination, the competent person shall enter in the prescribed register his observations and conclusions with other relevant remarks with reasons and may authorise the pressure vessel or plant to be used and kept in operation subject to a lowering of maximum permissible working pressure, or to more frequent or special examination or test or subject to both of these conditions. (b) A report of every examination or test carried out shall be completed in Form No. 11 and shall be signed by the person making the examination or test and shall be kept available for perusal by the Inspector at all hours when the factory or any part thereof is working. (c) Where the report of any examination under this rule specifies any condition for securing the safe working of any pressure vessel or plant the pressure vessel or plant shall not be used unless the specified condition is fulfilled. (c) Where the report of any examination under this rule specifies any condition for securing the safe working of any pressure vessel or plant the pressure vessel or plant shall not be used unless the specified condition is fulfilled. (d) The competent person making report of any examination under this rule shall within seven days of the completion of the examination send to the Inspector a copy of the report in every case where the maximum permissible working pressure is reduced or the examination shows that the pressure vessel or plant or any part thereof cannot continue to be used with safety unless certain repairs are carried out or unless any other safety measure is taken. (10) Application of other laws:- (a) The requirements of this rule shall be in addition to and without any prejudice to and not in derogation of the requirements of any other law in force. (b) Certificate or reports of any examination or test of any pressure vessel or plant to which sub-rules (7) to (9) do not apply, conducted or required to be conducted under any other law in force and other relevant record relating to suds pressure vessel or plant, shall be properly maintained as required under the said law and shall be produced on demand by the inspector.]" 13. It however deserves to be noted that the impugned complaints have been filed before 15.02.1995. 14. On appreciation of the aforesaid provisions of the Act and relevant Rules, it clearly appears that the Gujarat Factories Rules, 1963 have been framed under section 31 read with section 112 of the Factories Act. Similarly, it clearly borns out that the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 have been framed under Indian Explosives Act, 1884, which clearly defines compressed gas, cylinder as well as liquefied petroleum gas. Rules 19, 20 and 21 of the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 provided for storage of liquefied gas. The said Rules 19, 20 and 21 are as under: "19. Periodic testing of pressure vessels in service-- (1) All vessels shall be hydraulically tested by a competent person at a pressure marked on the vessel at intervals of not more than five years after the date of first test, provided that in the case of vessels, containing corrosive or toxic gases, the periodic test shall be done at an interval of two years. In case of vessels which are so designed, constructed or supported that they cannot be safety filled with water or liquids for hydraulic testing or which are used in services where traces or water cannot be tolerated, the Chief Controller may permit pneumatic testing alongwith non-destructive tests instead of hydraulic testing, as per procedure laid down in vessel fabrication code; after satisfying himself about the adequacy of the safety precautions undertaken; (2) the competent person carrying out the test as required under sub-rule (1) shall issue a certificate of test in prescribed proforma. 20. Precautions to be observed in carrying out hydraulic test.-- In carrying out the hydraulic test referred to in Rule 19, the following precautions shall be observed, namely:- (i) before the test is carried out, each pressure vessel shall be thoroughly cleaned and examined externally, and as far as practicable, internally also for surface defects, corrosion and foreign matter. During the process of cleaning and removal of sludge, if any, all due precautions shall be taken against fire or explosion, if such sludge is of pyropheric nature or contains spontaneously combustible chemicals; (ii) as soon as the test is completed, the vessel shall be thoroughly dried internally and shall be clearly stamped with the marks and figures indicating the person by whom the test has been carried out and the date of test and a record shall be kept of all such tests; (iii) any vessel which fails to pass the hydraulic test or which for any other reason is found to be unsafe for use shall be destroyed or rendered unsuitable under intimation to the Chief Controller. CHAPTER III STORAGE 21. GENERAL: (1) All vessels meant for storage of compressed gas shall be installed entirely above-ground, that is to say, no part of the vessel shall be buried below the ground level. (2) Vessels and first stage regulating equipment shall be located in the open. (3) Vessels shall not be installed one above the other. (4) Vessels within a group shall be so located that their longitudinal axes are parallel to each other. (5) No vessel shall be located within the bonded area of petroleum or other flammable liquid storages. (6) Sufficient space shall be provided between two vessels to permit fire-fighting operations. (3) Vessels shall not be installed one above the other. (4) Vessels within a group shall be so located that their longitudinal axes are parallel to each other. (5) No vessel shall be located within the bonded area of petroleum or other flammable liquid storages. (6) Sufficient space shall be provided between two vessels to permit fire-fighting operations. (7) Two or more vessels installed in batteries shall be so installed that the top surface of the vessels are on the same plane. (8) Vessels with their dished ends facing each other shall have screen walls in between them. (9) Notwithstanding anything contained in sub-rules(1) to (8) above, vessels for storage of liquefied petroleum gas can be placed underground or covered by earth in such manner and subject to such conditions as may be specified by a notifications by the Central Government. (9.1) The underground vessels shall be placed within concrete or brick masonry pit with a gap of 1.0 metre between the walls of the pit and the vessel as well as in between the vessels. (9.2) The underground vessels shall be installed on a firm foundation and firmly secured to the foundation so as to prevent movement of floatation. (9.3) The underground vessels or above ground vessels covered by earth (Mound) shall be:- 9(3) a designed to withstand external pressure due to load of the earth cover. (b) provided with external anti-corrosive coating or cathodic protection to prevent corrosion; (c) covered by earth, sand or any other non-corrosive material free from abrasive particles likely to damage the anti-corrosive coating of the vessel-the thickness of the covering material above the top surface of the vessel shall not be less than 0.5 metre; (d) having the discharge level of the safety relief valves at least 2 meters above the top surface of the vessel, but in any case not less than 3 meters from the ground level; (c) fitted with the necessary pipings, fittings, valves and other mounting on top of vessel in such a manner that they can be operated and maintained without disturbing the earth cover. In case of above ground vessel with earth cover (mound), liquid outlet pipe at the bottom may be allowed provided the control valve and emergency valve of this line is just outside the earth cover for the purpose of operation and maintenance from outside. In case of above ground vessel with earth cover (mound), liquid outlet pipe at the bottom may be allowed provided the control valve and emergency valve of this line is just outside the earth cover for the purpose of operation and maintenance from outside. (4) The above ground vessels to be covered by earth (mound) shall be installed on concrete foundation or compacted sand. (5) Unless inherently resistant to erosion, the earth cover (mound) of above ground vessel shall be provided with mechanisms to prevent erosion of covering soil (mound) (10) Aboveground vessel for storage of corrosive, flammable or toxic gas in liquefied state shall be provided with enclosure wall all around the ground. The minimum distance between vessel and enclosure wall shall be the diameter of the vessel or five meters, whichever is less. The ground shall be graded to form a slope away from pumps, compressors or other equipments. The height of the enclosure wall shall be thirty centimeters on the upper side and gradually increasing to maximum sixty centimeters on the lower side, at the end of which a shallow sump for collection of the spilled liquid, if any, shall be provided. The minimum separation distance between the vessel and the sump shall be- (a) diameter of the vessel, in case of vessels with water capacity not exceeding forty thousand litres, (b) fifteen metres, if the water capacity of the vessels exceeds forty thousand litres." 15. Similarly, on perusal of Rule 61, as it existed, clearly provides under sub-rule (12) that the metal bottles of cylinders used for storage or transport of compressed gases or liquefied or dissolved gases under pressure are taken out from the purview of the provisions of the Gujarat Factories Rules. Sub-rule (1) therefore cannot be read in isolation otherwise sub-rule (12) of Rule 61 would become redundant. Even in the affidavit filed by the respondent No. 1, the main contention used by the petitioner is not answered and there is no reference about sub-rule (12) of Rule 61. Therefore, the contention raised by Mr. Bhatt, learned counsel senior counsel for the petitioner that the Rules shall have no application as the petitioner in a way are dealing in liquefied petroleum gas are taken out from the purview of the applicability of Gujarat Factories Rules. 16. Therefore, the contention raised by Mr. Bhatt, learned counsel senior counsel for the petitioner that the Rules shall have no application as the petitioner in a way are dealing in liquefied petroleum gas are taken out from the purview of the applicability of Gujarat Factories Rules. 16. Having come to the aforesaid conclusion, respondent No. 1 as a Factory Inspector therefore cannot insist for compliance of Rule 61(1)(d) and Rule 61(6) of the Gujarat Factories Rules. Therefore, the very initiation of the proceedings under Gujarat Factories Rules, 1963 by respondent No. 1 is without jurisdiction. 17. In light of the specific exclusion found in sub-rule (12) of Rule 61 of the Gujarat Factories Rules, the contention raised by the applicant deserves to be accepted as the cylinders which are used for storage of liquefied gas are governed by the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 framed by the Central Government under sections 5 & 7 of the of the Indian Explosives Act, 1884 and the respondent No. 1-the complainant has no jurisdiction under the said Rules. 18. In light of the aforesaid discussions therefore, the Gujarat Factory Rules will have no application in the instant case. Even considering the definition of "cylinder" or "gas cylinder" as defined under the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 and considering the provisions of sub-rule (12) of Rule 61 of the Gujarat Factories Rules, the same shall have no application. Therefore, the very initiation of the criminal proceedings are without jurisdiction. 19. As laid down by the Apex Court in the case of State of Hariyana & Ors. vs. Ch. Bhajan Lal & Ors., reported in AIR 1992 SC 604 , wherein in para 108, the Apex Court has observed thus- "108. Therefore, the very initiation of the criminal proceedings are without jurisdiction. 19. As laid down by the Apex Court in the case of State of Hariyana & Ors. vs. Ch. Bhajan Lal & Ors., reported in AIR 1992 SC 604 , wherein in para 108, the Apex Court has observed thus- "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and take out a case against the accused. 4. Where, the allegations in the FIR do constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code" or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where; the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 20. Applying the aforesaid ratio laid down by the Apex Court, any further continuation of the criminal proceeding in pursuance to the criminal complaint would be an abuse of process of law as the same is without jurisdiction and authority and prima facie, no offence under section 92 of the Factories Act, 1948 for the alleged contravention of Rule 61(1)(d) read with Rule 61(6) of the Gujarat Factories Rules, is made out as the same is not applicable to the present case. Therefore, the complaint filed by the Inspector of Factories Rajkot and the order of even date, i.e., dated 12.01.1994, passed by the learned Judicial Magistrate First Class, Rajkot below application Exh. 6 in Criminal Case No.3312/90, Criminal Case No. 3313/90 and in Criminal Case No. 3311/90 respectively are hereby quashed and set aside. 21. Petitions are allowed to the aforesaid extent. Rule made absolute accordingly.