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2023 DIGILAW 1147 (RAJ)

Krishna Kumar Srinivasan v. State Of Rajasthan

2023-05-19

BIRENDRA KUMAR

body2023
JUDGMENT : Mr. Birendra Kumar, J. - The petitioners are accused in Criminal Complaint No.946/2022. The petitioners have challenged the entire criminal proceedings including the order of cognizance dated 29.9.2022 whereby the learned court below has taken cognizance against the petitioners for offence under section 7A, 21 and 41 of the Factories Act, 1948 read with Rule 65(E) and 65(F) of the Rajasthan Factories Rules, 1951 (in short "the Rules of 1951"). 2. The challenge is on the ground that the offences whereunder cognizance has been taken are not made out as well as on the ground that the mandates of the Factories Act were not followed before recommending for and filing complaint case. 3. The uncontroverted facts of the case are that Shriram Pistons and Rings Limited is a manufacturer and trader of pistons and rings etc. One of its Unit is running in the RIICO Industrial Area, Pathredi, Near Chopanki/Bhiwadi, District Alwar. In February, 2022, Mr. Rajnish Chauhan was appointed as Senior Associate Engineer-III in the maintenance department considering his educational qualification and experiences. On 30.5.2022, Mr. Chauhan was on his duty. He was informed that there is a breakdown of DCT Machine-17 and requires repair. Mr. Chauhan in presence of factory supervisor Krishan Kumar was engaged in carrying out the gap adjustment on the said machine with an Allen Key. As a matter of chance, Allen Key slipped off and fell down. Mr. Chauhan tried to take the key out. In doing so, the hand of Mr. Chauhan got trapped between the conveyor body and moving parts. Mr. Chauhan sustained permanent damage to the fingers. It was negligence on the part of Mr. Chauhan that without turning off the motion belt, he attempted to take out the key. Though there were warning instructions "do not put hands into the machine during operation". After due treatment, cost whereof was borne by the company, Mr. Chauhan reported to his duty on 25.8.2022. On 3.6.2022 respondent No.2, the Chief Inspector of Factories, was informed about the accident in view of provision of Rule 101 of the Rules of 1951. On 30.6.2022, respondent No.2 inspected the factory and recorded that there was no security cover on the front side of the said machine covering the area of 6 inch height x 2 feet 3 inch length and 1.5 width. On 30.6.2022, respondent No.2 inspected the factory and recorded that there was no security cover on the front side of the said machine covering the area of 6 inch height x 2 feet 3 inch length and 1.5 width. However, respondent No.2 recorded in the inspection note that on the date of inspection, the same was already covered. The inspection report aforesaid is the basis of the impugned complaint. 4. Mr. A.K. Bhandari, learned Sr. Advocate for the petitioners submits that section 9 of the Factories Act, 1948 requires that an Inspector may enter, with such assistants, being persons in the service of the Government, or any local or other public authority, or with an expert as he thinks fit, any place which is used, or which he has reason to believe is used, as a factory. The inspector may inquire into any accident or dangerous occurrence, whether resulting in bodily injury, disability or not, and take on the spot or otherwise statements of any person which he may consider necessary for such inquiry. Learned Sr. Advocate contends that the Senior Inspector inspected the factory and the machine concerned without taking assistance of the referred persons, especially the expert who is competent to say whether safety measures were taken by the management or not. Learned Sr. Advocate has placed reliance on judgment of the Madhya Pradesh High Court in Shiv Singh Mehta & Anr. v. State of M.P., reported in (2016) SCCOnlineMP 7522. In Mehta's case (supra), compliance of requirement of Section 9 of the Act was considered and the Hon'ble M.P. High Court noticed that since assistance of the expert or other referred authority was not taken by the Inspector while making inspection, rather the Senior Inspector all alone went inside the factory and submitted report, in the circumstance, the provision of Section 9 of the said Act was found violated and for aforesaid lapses, the court held that no useful purpose would be served for taking action on the complaint against the occupier of the factory. 5. Petitioner No. 1 is the Managing Director and C.E.O of the company and petitioner No.2 is factory manager at the aforesaid unit. 6. Learned Public Prosecutor does not seriously dispute the aforesaid non compliance nor the inspection report of respondent No.2 reveals that any such assistance was taken while making inspection. 5. Petitioner No. 1 is the Managing Director and C.E.O of the company and petitioner No.2 is factory manager at the aforesaid unit. 6. Learned Public Prosecutor does not seriously dispute the aforesaid non compliance nor the inspection report of respondent No.2 reveals that any such assistance was taken while making inspection. Therefore, the criminal prosecution based on a defective report would be an abuse of the process of law. 7. Learned Sr. Advocate for the petitioners contends that section 7A of the Factories Act prescribes general duties of the occupier of the factory and requires every occupier to ensure so far as is reasonably practicable, the health safety and welfare of all workers while they are at work in the factory. Section 7A reads as under: "[7A. General duties of the occupier.--(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory. (2) Without prejudice to the generality of the provisions of sub section (1), the matters to which such duty extends, shall include-- (a) the provision and maintenance of plant and systems of work in the factory that are safe and without risks to health; (b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work; (d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks; (e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work. (3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.]" 8. The petitioners were issuing, from time to time, safety instructions to be followed by the management as well as the employees. One of such instruction dated 24.1.2006 has been brought on record which contains different guidelines to be adhered to, by everyone on duty in the factory. A bare perusal of the aforesaid provision of Section 7A of the Act does not reveal that any deliberate act or negligence on the part of petitioners was there which was responsible for the accident. 9. Section 21 of the Act requires fencing of the machinery. The proviso to the said Section would not be attracted in the facts and circumstances of the case. Section 21 is being reproduced below: "21. 9. Section 21 of the Act requires fencing of the machinery. The proviso to the said Section would not be attracted in the facts and circumstances of the case. Section 21 is being reproduced below: "21. Fencing of machinery.-(1) In every factory the following, namely:-- (i) every moving part of a prime mover and every flywheel connected to a prime mover, whether the prime mover or flywheel is in the engine house or not; (ii) the headrace and tailrace of every water-wheel and water turbine: (iii) any part of a stock-bar which projects beyond the head stock of a lathe; and (iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely:-- (a) every part of an electric generator, a motor or rotary converter; (b) every part of transmission machinery; and (c) every dangerous part of any other machinery; shall be securely fenced by safeguards of substantial construction which 1[shall be constantly maintained and kept in position] while the parts of machinery they are fencing are in motion or in use: 2[Provided that for the purpose of determining whether any part of machinery is in such position or is of such construction as to be safe as aforesaid, account shall not be taken of any occasion when-- (i) it is necessary to make an examination of any part of the machinery aforesaid while it is in motion or, as a result of such examination, to carry out lubrication or other adjusting operation while the machinery is in motion, being an examination or operation which it is necessary to be carried out while that part of the machinery is in motion, or (ii) in the case of any part of a transmission machinery used in such process as may be prescribed (being a process of a continuous nature the carrying on of which shall be, or is likely to be, substantially interfered with by the stoppage of that part of the machinery), it is necessary to make an examination of such part of the machinery while it is in motion or, as a result of such examination, to carry out any mounting or shipping of belts or lubrication or other adjusting operation while the machinery is in motion, and such examination or operation is made or carried out in accordance with the provisions of sub-section (1) of section 22.] (2) The State Government may by rules prescribe such further precautions as it may consider necessary in respect of any particular machinery or part thereof, or exempt, subject to such condition as may be prescribed, for securing the safety of the workers, any particular machinery or part thereof from the provisions of this section." 10. Evidently, since repairing was going on in the machinery, which was necessary, due to break down, it was obvious that even small and local fences or covers would be required to be removed to complete the repair work. Moreover, the injured in his oath dated 12.9.2022 has clearly stated that a wire mesh guard, protecting the coolant conveyor belt was already there and due to fall of the Allen Key some space was made thereon wherein he had put his hand to take out the Allen Key. The injured further stated that the employer has borne the cost of his treatment done at the best of the available hospital. 11. Section 41 of the Act contains power to make Rules. This makes evident that cognizance under Section 41 of the Act suffers from non application of mind. Section 92 contains general penalty for offences. If the offences are not made out due to violation of any of the mandates of Section 7A and 21 of the Act, Section 92 would not apply as it only provides for punishment. 12. Rule 65(E) of the Rules says that no machinery or plant or equipment shall be constructed, situated operated or maintained in any factory in such a manner as to cause risk of bodily injury. Rule 65(F) of the Rules says that no process or work shall be carried on in such a manner as to cause risk of bodily injury. 13. Evidently, from the narration of facts of this case, it is not the prosecution case that the machinery was so installed as to expose possible risk of bodily injury. Moreover, the provisions are directory in nature, which was to be followed for the safety of the workers. In fact, no negligence on the part of the petitioners in ensuring safety to the workers at factory is made out even if the entire allegation is assumed to be correct. Therefore, the criminal prosecution is fit to be quashed for these reasons also. 14. Accordingly, the impugned complaint as well as entire criminal prosecution arising out of the said complaint stands hereby quashed and this petition is allowed.