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2023 DIGILAW 624 (JHR)

Hridayashwar Jha v. State of Jharkhand

2023-05-04

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : 1. In both the petitions common question of law and similar complaint as well as cognizance order are under challenge that is why both the petitions are being heard together with the consent of the parties. 2. Both the petitions have been filed for quashing the entire criminal proceeding in connection with G.O. No. 190 of 2013 including order taking cognizance dated 28.09.2013, pending in the Court of learned Judicial Magistrate, Ist Class, Saraikella. 3. Heard Mr. A..K. Das, learned counsel for the petitioners and Mrs. Shweta Singh and Mr. Santosh Kr. Shukla learned counsels of the State. 4. O.P. No. 2 instituted a complaint stating therein that M/s Tayo Rolls Limited has its Factory, which is registered under the Factories Act at Large Scale Industrial Estate, Gamharia. On 4.7.2013, a natural death of a contract worker namely Mathura Mandal took place. On enquiry, it was found that late Mathura Mandal was a Supply Labour working in M/s Tayo Rolls Limited. On the date of accident i.e. on 4.7.2013 after coming to duty he started working at his work place i.e. Laddle Refining Furnace Vacuum Degassing Area. Where he was working along with another worker Shri Deva Mukhi and they were engaged in loading, unloading At about 6.15 P.M. in the evening. Deva Mukhi went from loading place to unloading place and Mathura Mandal stayed back in the loading area. During enquiry it revealed that there were three cranes established in the foundry shed one having capacity of 40 tones and in the western side of the foundry shed, there is a furnace slag dump area where the sack of lime is loaded and unloaded with the help of Crane. It further revealed that the said work was under the supervision of Nilkamal Mahto. At about 6.20 P.M. a Dumper loaded with riser cutting entered into the foundry shed for the purpose of unloading and while the Dumper was coming in the back side, late Mathura Mandal got trapped in the Dumper, due to which he suffered injury on the left part of the body and became semi unconscious. At about 6.20 P.M. a Dumper loaded with riser cutting entered into the foundry shed for the purpose of unloading and while the Dumper was coming in the back side, late Mathura Mandal got trapped in the Dumper, due to which he suffered injury on the left part of the body and became semi unconscious. He was thereafter taken to Tata Main Hospital where he was declared dead at 7.40 P.M. It has been alleged that the vehicle was running in the reverse mode and during the said operation, the said worker got trapped in the vehicle and suffered injury which resulted into the death. While the vehicle was coming in reverse direction, there was no Flag Man or Safety Watcher and there was no standard operating procedure, otherwise the accident could have been prevented and therefore it has been alleged that there is a violation of Section 7 A (2) (b) of the Factories Act, read with Section 55 A (2) of the Jharkhand Factory Rules, 1950, for which the Manager and Occupier is liable to be prosecuted. 5. A.K. Das, learned counsel appearing for the petitioners submits that the complaint has been filed in violation of Rule 55(A)(2) of the Bihar (now Jharkhand) Factories Rules, 1950. He submits that there is no casualty and only injury has taken place. He further submits that the petitioners are the Occupier and Manager of M/s Tata Steel Ltd. He also submits that he is not challenging the provisions of the Factories Act, rather he has very fairly invited the attention of this Court to the Judgment rendered by the Hon’ble Supreme Court in the case of J.K. Industries Ltd. Versus Chief Inspector of Factories and Boilers, reported in (1996) 6 SCC 665 . He submits that though, this judgment is against the petitioner, however, in this judgment the challenge was with regard to certain provisions of the Factories Act, which requires to be looked into its entirety in coming to the conclusion that the petitioners are liable for such irregularities or not. He submits that though, this judgment is against the petitioner, however, in this judgment the challenge was with regard to certain provisions of the Factories Act, which requires to be looked into its entirety in coming to the conclusion that the petitioners are liable for such irregularities or not. Learned counsel also draws the attention of this Court towards Rule 55(A)(2) of the Bihar (now Jharkhand) Factories Rules, 1950 and he also draws the attention of this Court towards Sections 97 and 111 of the Factories Act and by way of referring aforesaid sections, he submits that the liability and inquiry was required to be looked into in the light of Sections 97 and 111 of the Factories Act. Learned counsel further submits that the cognizance order dated 28.09.2013 is also without application of mind, as sections have been filled up in blank space in that order. He submits that there no application of mind by the learned Judicial Magistrate, 1st Class, Saraikella in passing the cognizance order. 6. Learned counsel appearing for the petitioners relied upon the judgments rendered in the case of Sarav Investment and Financial Consultancy (P) Ltd. Versus Lloyds Register of Shipping Indian Office Staff Provident Fund, reported in (2007) 14 SCC 753 and also in the case of Visitor AMU and Ors. Versus K.S. Misra, reported in (2007) 8 SCC 593 , wherein in para-13, the Hon’ble Supreme Court has held as follows:- “13. The problem can be looked from another angle. If the view taken by the High Court that the provision is directory is accepted as correct, it would in effect amount to making the provisions of sub- clause (c) of Statute 61(6)(iv) otiose. In such a case the consequences provided therein that if no option is exercised within the prescribed time limit, the employee shall be deemed to have opted for the retention of the benefits already received by him would never come into play. It is well settled principle of interpretation of statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intent is that every part of the statute should have effect. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intent is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the staute. (See Principles of Statutory Interpretation by Justice G.P. Singh Ninth Edition page 68)” 7. Learned counsels appearing for the State draw the attention of this Court towards the complaint, as contained in Annexure-1 and the allegations levelled against them and submits that the cognizance against the petitioners have rightly been taken. 8. Rule 55(A(2) of the Bihar (now Jharkhand) Factories Rules, 1950 reads as follows:- 55A. General safety of buildings, structures, plants, machinery, etc. – (1) No building, wall, chimney, bridge, tunnel, drain, road gallery, passage, walkway or gage-way, ladder, stair-case, ramp floor, platform, staging, scaffolding or any other structure of bricks, masonary, cement, concrete, steel or any other material whether of a permanent or temporary character shall be constructed, situated, maintained or allowed to remain or be used in a factory and no machine, plant, equipment including electric lines, wiring, fitting and apparatus [apparatus as defined in clause (c) of rule 2 of the Indian Electricity Rules, 1956 made under the Indian Electricity Act, 1910], shall be constructed, provided, situated, maintained or allowed to be used or operated in a factory, in such manner as may, or is likely to, cause any accident or any bodily injury. (2) No process or work shall be carried on in any factory and no person shall be allowed to work on any process or any machinery, plant or equipment or in any part of a factory or in any other work in such manner as may, or is likely to cause any accident or any bodily injury. (3) No materials, articles or equipments shall be kept stacked or stored in such manner as may or is likely to cause any accident or any bodily injury. 9. (3) No materials, articles or equipments shall be kept stacked or stored in such manner as may or is likely to cause any accident or any bodily injury. 9. There is no doubt on perusal of the said Rule that the process of any work, which was permitted to be carried out in a manner as may, or is likely to, cause any accident or any bodily injury. The duty of the Inspector has been disclosed in sub-Section- 9 read with Section 88 of the Factories Act. 10. Sections 97 and 111 of the Factories Act also provides about the offence by the workers and obligations of the workers, which are quoted hereunder:- 97. Offences by workers.— (1) Subject to the provisions of section 111, if any worker employed in a factory contravenes any provision of this Act or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine which may extend to [five hundred rupees]. (2) Where a worker is convicted of an offence punishable under sub-section (1) the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention. 111. Obligations of workers.—(1) No worker in a factory— (a) shall wilfully interfere with or misuse any appliance, convenience or other thing provided in a factory for the purposes of securing the health, safety or welfare of the workers therein; (b) shall wilfully and without reasonable cause do anything likely to endanger himself or others; and (c) shall wilfully neglect to make use of any appliance or other thing provided in the factory for the purposes of securing the health or safety of the workers therein. (2) If any worker employed in a factory contravenes any of the provisions of this section or of any rule or order made thereunder, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both. 11. (2) If any worker employed in a factory contravenes any of the provisions of this section or of any rule or order made thereunder, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both. 11. From a bare reading of these two provisions of the Factories Act, it is crystal clear that the scheme of the Factories Act is there, at the first instance the occupier and Manager must be prosecuted in terms of Section 92 of the Act, however, they may seek exemption under Section 101 of the said Act. Such interpretation would render the provisions of Sections 97 and 111 of the Act invalid. It is well settled principle of interpretation of the statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application, which has been considered by the Hon’ble Supreme Court in the case of Visitors AMU and Ors. (Supra). 12. There is no specific violation of any provision of the Act or the Rules in the complaint and in absence of such illegal act or omission to fasten the Occupier and Manager on the strength of the alleged contravention of the general duties would be a dangerous proposition of law. 13. On perusal of the complaint, it transpires that there is no material on record to prima facie suggest that the Occupier or Manager are in any manner responsible for the unfortunate accident. Sections 97 and 111 was not looked into by the Inspector, as admitted in the complaint itself that the workman concern has gone up upon the machine. No case is made out against the petitioners in terms of the Factories Act in view of the judgment rendered in the case of J.K. Industries Ltd. (Supra), wherein the Hon’ble Supreme Court has rightly come to the conclusion that mens rea is not the necessity in invoking the provisions of Factories Act. In that case the Hon’ble Supreme Court was examining the certain Sections of the Factories Act, which are not under challenge in this case. Sections 97 and 111 have been ignored by the Inspector of the Factories while submitting the report and at the time of filing the complaint. 14. In that case the Hon’ble Supreme Court was examining the certain Sections of the Factories Act, which are not under challenge in this case. Sections 97 and 111 have been ignored by the Inspector of the Factories while submitting the report and at the time of filing the complaint. 14. From perusal of cognizance order, it transpires that the cognizance has been taken in a format, in which, the learned Magistrate has filled up only the sections and names of the persons and cognizance has been taken. It suggest that the learned Magistrate has not considered the facts and in a mechanical way cognizance has been taken vide order dated 28.09.2013 by way of filling up vacant lines. 15. In view of the aforesaid discussions, the entire criminal proceedings initiated against the petitioners in connection with G.O. No. 190 of 2013 including order taking cognizance dated 28.09.2013, pending in the Court of learned Judicial Magistrate, Ist Class, Saraikella, are hereby quashed. 16. Interim order granted earlier stands vacated. 17. Both these criminal miscellaneous petitions are allowed and disposed of. Pending interlocutory application also stands disposed of.