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2023 DIGILAW 676 (JHR)

Hemant Goyal v. State of Jharkhand

2023-05-11

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. N.K. Pasari, learned counsel appearing for the petitioners and Mr. V.K. Vashistha, learned Spl.P.P. appearing for the State. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 25.06.2014, by which, cognizance for the offence under Section 92 of the Factories Act has been taken against the petitioners, in connection with G.O. No. 124 of 2014, pending in the court of learned Judicial Magistrate, 1st Class, Seraikella-Kharsawan. 3. The prosecution story as has been narrated in the Complaint is that in terms of the telephonic information received from Sri Manjunath Banjatri, S.D.M, Chandil, about the accident occurred in the factory premises M/s. Narsingh Ispat Pvt. Ltd., the Factory Inspector, Bharat Bhushan Singh went to M/s. Narsingh Ispat Pvt. Ltd., on 31.03.2014 for inspection and while carrying out the inspection, it was found that on 30.03.2014 @ 9:00 P.M., when a dumper carrying the Lime Stone was moving in the reverse mode for unloading the same in the Ground Hopper, four workers who were resting near the Ground Hopper, came under the grip of the dumper, resultantly out of the four workers, three died and one was injured. After inspection, vide letter dated 01.04.2014, the O.P. No. 2, directed the petitioners to produce certain documents concerning the statutory compliances in terms of Factories Act, 1948. After the inspection was completed, the inspection report was even prepared on 02.05.2014, by the O.P. No. 2, in terms whereof, following irregularities were alleged to have been found, viz.,: (1) Security Guards/ Conductors were not deployed near the ramp violating the provisions of section 7A (b) of the Act of 1948 read with Rule 55-A (2) of the Rules, 1950. (ii) Shelter Room was not found at any place in the factory premises violating the provisions of section 47 of the Act of 1948 read with Rule 72 of the Rules, 1950. (iii) Violation of Rule 102 of the Rules, 1950, by not cooperating in inspection proceedings. The Inspection report dated 02.05.2014 was sent through Registered Post and the petitioners were asked to appear before the competent authority with the entire documents. (iii) Violation of Rule 102 of the Rules, 1950, by not cooperating in inspection proceedings. The Inspection report dated 02.05.2014 was sent through Registered Post and the petitioners were asked to appear before the competent authority with the entire documents. Since, certain documents as was sought for was produced, however, some of the documents were not produced and purported violations were not rectified, hence, the complaint was forwarded on 19.06.2014 under the signature of the Factory Inspector, Bharat Bhushan Singh (O.P. No.2). 4. Mr. Pasari, learned counsel appearing for the petitioners submits that the petitioner No. 1 is the Director and petitioner No. 2 is the Manager of M/s Narsingh Ispat Pvt. Ltd. He further submits that the accident took place within the premises, however there is clear instruction that near the ramp / ground hopper, the labourers were restricted to move or to rest, however, in spite of the said instruction, the labourers were gone there to rest and due to accident, three labourers were died at the spot and one has received grievous injuries. He further submits that for the alleged accident, the petitioners, being the Director and Manager of the said company have unnecessarily been dragged in the case. 5. 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. 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 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)” 6. The learned counsel for the respondent State submits that violation of the provisions have been found as the safety was not provided and in that background, the complaint case has been filed and the learned court has rightly been taken cognizance under section 92 of the Factories Act, 1948. 7. In view of the above submission of the learned counsel appearing for the parties the Court has gone through the materials on record and finds that admittedly the said accident has been taken place within the premises and the four labourers were resting near ground hopper, where the materials sent to the machinery and three labourers died. 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. 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 gageway, 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. On perusal of the said rule it is crystal clear 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. In the case in hand, the Inspector of Factories alleged that the occurrence took place due to fall of hot iron pig on the body of the said labourer. 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]. 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. 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. 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 Director 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 Director and 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 was passing through. No case is made out against the petitioners in terms of the Factories Act as mens rea is not the necessity in invoking the provisions of Factories Act. Further, 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 view of the above facts and the reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 25.06.2014, by which, cognizance for the offence under Section 92 of the Factories Act has been taken against the petitioners, in connection with G.O. No. 124 of 2014, pending in the court of learned Judicial Magistrate, 1st Class, Seraikella-Kharsawan, are hereby, quashed. 15. Cr.M.P. No. 2562 of 2014 stands allowed and disposed of. 16. Pending petition, if any, stands disposed of.