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2022 DIGILAW 462 (JHR)

Nigam Chander Bahl v. State of Jharkhand

2022-04-18

NAVNEET KUMAR

body2022
ORDER : 1. Heard the learned counsel for the parties. 2. This Cr. M.P. has been filed for quashing the entire criminal proceeding including the order dated 04.01.2011 passed by the learned C.J.M. Bokaro in Factory Case No. 01 of 2011 whereby and where under the learned C.J.M. Bokaro has taken the cognizance for the offence punishable under Section 92 of the Factories Act, 1948 against these petitioners. It has been pointed out that the petitioner no. 1-Nigam Chandra Bahl is the occupier and petitioner no. 2-D.P. Banerjee, is the Manager of the factory M/s Electrosteel Steels Ltd. Siyaljori, Chandankyari, district-Bokaro and the allegation against them is that on 14.10.2010 from the under constructed S.M.S of factory premises one workman Vasisht Mahatha fell down during the work from High Bay Structural Platform by which he died and after the said incident the statement of the co-workers were recorded. It was alleged that the factory premises was unsafe and dangerous and no step was taken for the railing and fencing of the same, therefore, the deceased workman fell down from the under constructed high Bay platform and he died. It has also been alleged that the said workman was not provided the safety belts by the occupier and the Manager of the factory and as such it has been alleged against this petitioner that there was a violation of section 33 (1) of the Factories Act, 1948 which is an offence punishable under Section 92 of the Factories Act, 1948 and accordingly, the detailed prosecution report was submitted before the Court of C.J.M. Bokaro by which the C.J.M. Bokaro took the cognizance against these two petitioners for the offence punishable under Section 92 of the Factories Act vide order dated 04.01.2011 which is under challenge. 3. 3. It has further been submitted on behalf of the petitioner that there is no question of any violation of section 33 (1) of the Factories Act, 1948 and as such no offence under Section 92 of the Factories Act, 1948 has been committed by the petitioners because the prosecution has failed to appreciate that the place of incident where the work was being carried out does not fall within the ambit of factory as defined under the Factories Act, because no manufacturing process was going on at the relevant point of time in the factory premises which was under construction site of SMS (Steel Melting Shop) which is an admitted fact. 4. In this view of matter, it is submitted that the place of work where the dangerous occurrence happened is not within the meaning of factory premises to invoke the provisions of Section 33 (1) of the Factories Act, 1948 and there is no question of commission of any offence under Section 92 of the Factories Act, 1948. 5. The Learned counsel appearing on behalf of the petitioners confined his contention to the fact that there is no violation of Section 33 (1) of the Factories Act, 1948 and the offence under Section 92 of the Factories Act will not apply because the place of occurrence is neither covered under the definition of the factories as defined under Section 2(m) of the Factories Act nor anything was manufacturing within the meaning of manufacturing process which is defined under Section 2 (K) of the Factories Act, 1948 and, therefore, the offence as alleged is not tenable in the eyes of law. 6. In support of the contentions, learned counsel appearing on behalf of the petitioners relied upon the ruling of the Hon’ble Supreme Court as reported in Lanco Anpara Power Limited vs. State of Uttar Pradesh and Others, (2016) 10 SCC 329 . 7. On the other hand, the learned counsel appearing on behalf of the opposite parties filed the counter and submitted that it is wrong to say that the place of occurrence is not covered within the definition of factory as said the factory in question namely M/s Electrosteel Steels Ltd. district Bokaro was a registered factory since 22.12.2009 and the accident had taken place inside the factory premises where the activities of the factories were going on. Further, it is submitted that the learned trial court has rightly taken the cognizance against these petitioners for the offence punishable under Section 92 of the Factories Act in view of the fact that the activities like welding, cutting, altering the structure, use of electricity, drilling and different activities are carried out during construction and all are covered under the definition of the ‘manufacturing process’ under Section 2(K) of the Factories Act and, therefore, this Criminal Miscellaneous petition being devoid of merit is fit to be dismissed. 8. Having gone through the submission advanced on behalf of both the parties, perused the record of this case. 9. It is found that it is admitted case of the prosecution which is evident from the prosecution report itself that the opposite party - Factory Inspector held the inquiry on 19.10.2010 and 03.11.2010 visiting the place of occurrence and found that the construction work of M/s. Electrosteel Steels Ltd. Siyaljori, district-Bokaro, was going on where steel melting shop was being constructed and during the course of the construction of structural work of the Factory, the alleged incident happened where factory was not running rather construction work of Factory was going on for the installation of the equipment and, therefore, it is evident that the manufacturing process of the company had not commenced and the construction of the factories was going on and, therefore, this does not come within the definition of ‘manufacturing process’ and there is no question of violation of Section 33 (1) of the Factories Act, 1948 because, the place of occurrence is not factory in absence of any manufacturing process by the said company and, hence, no offence under Section 92 of the Factories Act, 1948, has been committed by these petitioners. From the ruling of the Hon’ble Supreme Court, it is clear that the offence under Section 92 of Factories Act is invoked only when the manufacturing process in the factory has commenced. In this connection, it is relevant to appreciate the relevant Paras as observed by the Hon’ble Supreme Court in the Lanco Anpara Power Limited vs. State of Uttar Pradesh and Others, (2016) 10 SCC 329 as under: 36. In this connection, it is relevant to appreciate the relevant Paras as observed by the Hon’ble Supreme Court in the Lanco Anpara Power Limited vs. State of Uttar Pradesh and Others, (2016) 10 SCC 329 as under: 36. We may mention at this stage that High Court is right in observing that merely because the appellants have obtained a licence under Section 6 of the Factories Act for registration to work a factory, it would not follow therefrom that they answer the description of the “factory” within the meaning of the Factories Act. We have reproduced the definition of “factory” and a bare reading thereof makes it abundantly clear that before this stage, when construction of the project is completed and the manufacturing process starts “factory” within the meaning of Section 2(m) of the Factories Act does not come into existence so as to be covered by the said Act. 38. It is not in dispute that construction of the projects of the appellants is covered by the definition of “building or other construction work” as it satisfies first two elements of the definition pointed out above. In order to see whether exclusion clause applies, we need to interpret the words “but does not include any building or other construction work to which the provisions of the Factories Act.......apply.” The question is as to whether the provisions of the Factories Act apply to the construction of building/project of the appellants. We are of the firm opinion that they do not apply. The provisions of the Factories Act would “apply” only when the manufacturing process starts for which the building/project is being constructed and not to the activity of construction of the project. That is how the exclusion clause is to be interpreted and that would be the plain meaning of the said clause. This meaning to the exclusion clause ascribed by us is in tune with the approach adopted by this Court in Organo Chemical Industries vs. Union of India. Two separate, but concurring, opinions were given by Justice V.R. Krishna Iyer and Justice A.P. Sen and we reproduce here below some excerpts from both opinions: “Justice A.P. Sen (SCC P. 586, Para 23) “23.......Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. Two separate, but concurring, opinions were given by Justice V.R. Krishna Iyer and Justice A.P. Sen and we reproduce here below some excerpts from both opinions: “Justice A.P. Sen (SCC P. 586, Para 23) “23.......Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. A bare mechanical interpretation of the words “devoid of concept or purpose” will reduce much of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole.” Justice V.R. Krishna Iyer (SCC p. 592 Para 41) “41. A policy-oriented interpretation, when a welfare legislation falls for determination, especially in the context of a developing country, is sanctioned by principle and precedent and is implicit in Article 37 of the Constitution since the judicial branch is, in a sense, part of the State. So it is reasonable to assign to ‘damages’ a larger, fulfilling meaning.” 10. In view of the aforesaid ruling and the admitted case as emanating from the prosecution report itself that the place of occurrence where the construction work of the factory was going on, no manufacturing process has started, this Court is of the opinion that no offence under Section 92 of the Factories Act is made out. Therefore, it is found just, fair and proper to quash the entire criminal proceedings including the order dated 04.01.2011 by which the cognizance for the offence punishable under Section 92 of the Factories Act has been taken and the subsequent criminal proceedings in this case against these petitioners. 11. Accordingly, the Criminal Miscellaneous Petition is allowed and entire criminal proceeding including the order dated 04.01.2011 passed by the learned C.J.M. Bokaro in Factory case No. 01 of 2011, is set aside against these two petitioners Nigam Chandra Bahl and D.P. Banerjee.