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2020 DIGILAW 250 (KAR)

Keshab Nandy And Another v. State Of Karnataka

2020-01-28

P.G.M.PATIL

body2020
JUDGMENT 1. This is a criminal petition filed under Section 482 of Cr.P.C. seeking to quash the proceedings initiated against the petitioners in CC No.89/2014 pending on the file of Civil Judge and JMFC Court, Kustagi, Koppal district. 2. The brief facts of the case are that the petitioners herein are the Director and Deputy General Manager respectively of Vahni Distilleries Private Limited. The factory is at Tavaragera, which is registered under the provisions of the Factories Act, 1948 and is engaged in manufacturing Indian Made Liqour (IMFL) since 2009 by employing about 100 workers on contract basis. Since the consumption of power load of the factory exceeded 65 HP, it became mandatory to convert the electrical connection from LT to HT in order to regulate the increased supply. Hence, GESCOM directed the factory to get the LT connection converted into HT connection. Accordingly, the factory issued a work order to a licenced electrical contractor M/s. Alsa Afseen Electricals, for supply, erection and commissioning of new HT transformer, as per Annexure-A. The entire civil work assigned to the said contractor was a one-time independent turnkey job to be set up outside the factory building. The terms of the said work-order are agreed between the parties, in terms of Annexure-A. On 08.01.2014, around 2.45 p.m., one Rajasab, helper-worker under the said contractor while fixing of Gang Operated Switch (GOS) to the pole in the HT Transformer Yard, lost balance after accidentally slipping and fell down from the pole. As a result of the fall, he sustained grievous injuries. Immediately he was shifted to the hospital. The doctor administered first-aid, however thereafter he was declared dead. Petitioner 2 herein promptly informed the office of the Inspector of Factories on the same day. An inspection was conducted next day on 09.01.2014 and the Deputy Director of Factories/respondent herein prepared the Accident Investigation Report as per Annexure- B. Based on the same, respondent issued show-cause notice dated 13.03.2014 to the petitioners, as per Annexure-C. The petitioners submitted their reply statement on 29.03.2014, as per Annexure-D. The petitioners were under the bonafide impression that respondent would drop the proceedings. However, without considering the averments made therein, respondent preferred a complaint on 03.04.2014 under Section 200 of Cr.P.C. before the Court of Civil Judge and JMFC at Kustagi, Koppal, in CC No.89/2014, as per Annexure-E, alleging contravention of Section 32(c) and sought punishment under Section 92 of the said Act. On the same day, the Court below purportedly took cognizance of the alleged offence and ordered issue of summons to the accused/petitioners herein. 3. The petitioners have stated that the Factory has state of art safety features and till this date there is no complaint regarding safety of its workers being compromised. The deceased helper proceeded to the spot outside the factory building without making use of safety equipment available in the premises. The entire incident is wholly on account of the negligence attributable to the said deceased, who was engaged in by the contractor. Hence, the petitioners cannot be saddled with the vicarious criminal liability for the incident. After investigation, the jurisdictional police had filed B report holding that the petitioners are not guilty of any negligence in the matter. When the allegations are taken up, their face value do not make out a prima facie case of the alleged offence, it is absolutely necessary to quash the impugned proceedings to prevent abuse of process of the Court. It is further contended that the entire incident has reflected in the security/safety lapse on the part of the factory and the petitioners. Mere accidents will not ipso-facto lead to the conclusion that the safety norms in the factory are not followed since even with complete safety features present in the workplace, accident do take place due to negligence of the workmen. The entire complaint proceeds on the basis that the offence under the said Act is established by mere occurrence of the accident. Since there was no ingredient of conspicuously absent in the complaint and the same ought to have been dismissed at the threshold itself by the Court below, therefore the initiation of the proceedings against the petitioners is liable to be quashed. 4. Heard the learned counsel for the petitioners and learned HCGP. 5. Since there was no ingredient of conspicuously absent in the complaint and the same ought to have been dismissed at the threshold itself by the Court below, therefore the initiation of the proceedings against the petitioners is liable to be quashed. 4. Heard the learned counsel for the petitioners and learned HCGP. 5. The learned counsel for the petitioners submitted that the petitioners Factory issued work order to the contractor with the terms and conditions enumerated in work order produced at Annexure-A. As per the said terms and conditions, it is for the contractor to insure the risk of his workmen and also to ensure that all the activities are performed keeping the safety and security measures and in case of any accident/injury or death of his workmen, he shall be solely responsible for the same and will be liable to pay compensation as per the Act. Learned counsel further submitted that the deceased was not a workman of the petitioner as defined under the provisions of the Act and therefore the violation of the provisions of the Act cannot be connected in the present case and that absolutely there is no violation of any of the provisions of the Act by the petitioners. The learned counsel further submitted that the Factory licence has been renewed and the officer has inspected the Factory and therefore in case of any lapses on the part of the Factory, the licence would not have been renewed. 6. Per contra learned HCGP submitted that there is obligation on the part of the petitioners to provide safety measures as required under Section 32(c) of the Factories Act, which is violated in the present case and therefore the proceedings initiated against the petitioners cannot be quashed. 7. It is not disputed that the incident in question occurred within the premises of the Factory of the petitioners. It is also not disputed that the petitioners Factory issued work order at Annexure-A dated 14.01.2013, by which the subject work was entrusted to the electrical contractor- M/s.Alsa Afseen Electricals and the terms and conditions agreed under the work order shows that it was for the contractor to arrange for all the tools and tackle with the incidents. He should insure the risk of his workmen. He has to ensure that all the activities are performed under security and safety measures. He should insure the risk of his workmen. He has to ensure that all the activities are performed under security and safety measures. He has to comply all the statutory requirements concerning to his labour work force as per the Act. 8. It is also agreed that in case of any incidental injury, death of his workmen, he shall be solely responsible for the same and will be liable to pay compensation as per the Act. Therefore the work order issued by the petitioners engaging the work to the contractor is made out. It is very much clear that the work was undertaken by the contractor in terms of the said work order. It is also not disputed that the deceased was employed by the contractor and while he was engaged in the work, entrusted by the contractor, the incident occurred and the deceased sustained fatal injuries and died. Under these circumstances, the deceased cannot be termed as workman employed by the petitioners within the definition provided under Section 2(L) of the Act. It is not the case of the prosecution that the deceased was employed by the petitioners through any agent or through any member employed in any managing process or any other kind of work entrusted through or engaged with the manufacturing process or the subject of manufacturing process through the deceased, therefore he cannot be termed as workman of the petitioners as per the definition stated above. When these are the admitted facts, the contention of the State that there is violation of Section 32(c) of the Act has to be considered. Section 32(c) provides as follows: '32(c). when any person has to work at a height from where he is likely to fall , provision shall be made, so far as is reasonably practicable, by fencing or otherwise, to ensure the safety of the person so working.' 9. Therefore the said provision is applicable where the workman of the factory was engaged to work at a very high place, where he could likely to fall. Admittedly in the present case, the deceased was not employed by the petitioners, but he was engaged by the contractor. On the other hand, as per the terms and conditions of the work order, it was the responsibility of the contractor to provide safety measures to his workmen. Admittedly in the present case, the deceased was not employed by the petitioners, but he was engaged by the contractor. On the other hand, as per the terms and conditions of the work order, it was the responsibility of the contractor to provide safety measures to his workmen. Only for the reasons that the incident occurred within the Factory premises, the occupier of the factory cannot be made liable for the violation of Section 32(c) of the Act. 10. Learned counsel for the petitioners has relied on the judgment of this Court in Criminal Petition No.101021/2016 decided on 04.01.2017, wherein this Court considered the similar facts and held that in that case, death was not attributed to the negligence on the part of the petitioners/company and further the company had paid all the benefits to the family of the deceased, showing its bonafides. On such observations, the proceedings initiated against the petitioners in that case under Section 92 of the Factories Act was quashed. In the case on hand also, it is submitted that the petitioners have paid compensation to the family of the deceased on humanitarian grounds. The affidavit sworn to by the father of the deceased one Badesab is produced at Annexure-K, wherein the father of the deceased has stated that his son was engaged by the electrical contractor entrusting the work of electricals and that due to his own negligence, his son fell down and died. He has further stated that the petitioners factory have given compensation of Rs.3,75,000/- to him. Even he has stated that the petitioners are not liable for the death of his son. Therefore it is seen that though the responsibility of providing safety measures to the deceased was on the part of the contractor and he was liable to pay compensation to the family of the deceased, the petitioners have shown their bonafides by paying compensation to the family of the deceased. For the foregoing reasons, this Court is of the considered opinion that the initiation of the criminal proceedings against the petitioners is without any basis and amounts to abuse of process of law and as such the same is liable to be quashed. Accordingly, this Court proceed to pass the following: ORDER The criminal petition filed under Section 482 of Cr.P.C. is allowed. Accordingly, this Court proceed to pass the following: ORDER The criminal petition filed under Section 482 of Cr.P.C. is allowed. The proceedings against the petitioners in CC No.89/2014 pending on the file of Civil Judge and JMFC Court, Kustagi, Koppal district are hereby quashed.