Richard Rushton vs The State Of Maharashtra
2016 Latest Caselaw 6242 Bom

                                       1                 Cri. W.P. 107/2007+



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                            
                   CRIMINAL WRIT PETITION NO. 107 OF 2007




                                                    
    Richard Rushton
    Occupier, SKOL Breweries Ltd.,
    (Unit : Pals Distilleries Ltd.)
    L-5, M.I.D.C., Waluj,




                                                   
    Aurangabad (M.S.)                                 .. Petitioner
                                                    (Original Accused)

       Vs.




                                          
    The State of Maharashtra
    at the instance of 
    Shri H.M. Asalkar,
    Deputy Director,
    Industrial Safety & Health,
                                 
    57, Sindhi Colony,
                                
    Aurangabad                                       .. Respondent

                                           AND
                   CRIMINAL WRIT PETITION NO. 108 OF 2007
       


    Richard Rushton
    Occupier, SKOL Breweries Ltd.,
    



    (Unit : Pals Distilleries Ltd.)
    L-5, M.I.D.C., Waluj,
    Aurangabad (M.S.)                                 .. Petitioner
                                                    (Original Accused)





       Vs.

    The State of Maharashtra
    at the instance of 
    Shri H.M. Asalkar,





    Deputy Director,
    Industrial Safety & Health,
    57, Sindhi Colony,
    Aurangabad                                       .. Respondent

                                      ----
    Mr.  Vijay   Sharma,   Advocate   for   the   petitioner   in   both   Writ 
    Petitions
    Ms. R.P. Gour, APP for the respondent/State
                                      ----




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                                           2              Cri. W.P. 107/2007+



                                           CORAM : V.K. JADHAV, J.

DATE : 21/10/2016

ORAL JUDGMENT :

With consent of learned counsel for the

parties, both Writ Petitions are heard finally.

2. In the instant criminal writ petitions, the

petitioner has challenged the orders of issue of process

passed by the learned Chief Judicial Magistrate,

Aurangabad, dated 3/4/2016, respectively, in complaint

bearing SCC 2228 of 2006 for the offences punishable

under section 7(A)(2)(a) r/w section 92 of the Factories

Act, 1948 and in the complaint bearing SCC 2229 of 2006

for the offences punishable under section 32(c) r/w.

section 92 of the Factories Act, 1948 (for short "the

Act").

3. Brief facts giving rise to the present criminal

writ petitions are as follows :-

. The petitioner was at the relevant time, the

managing director and the occupier of SKOL Breweries

Ltd., Unit : Pals Distilleries Ltd., situated at L-5,

M.I.D.C, Waluj, Aurangabad. The said factory is engaged

3 Cri. W.P. 107/2007+

in manufacturing the beer. In the first half of the

year 2005, the said factory was to undergo expansion and

modernisation which included erection of malt silos and

bucket elevator in a part of the land covered by SKOL

Breweries Ltd. Tenders were invited by the Brewery and

consequently the contract for erection of malt silos was

given by the petitioner to a construction company namely

Briggs of Burton (I) Pvt. Ltd., Bangalore. The said

company Briggs of Burton (I) Pvt. Ltd. entered into a

contract with sub-contractor M/s Rajkamal Engineering,

Aurangabad and sub-contracted a part of its work to

them. The said construction work was supervised by one

Chourasiya Rakesh, Engineer of the Contractor, Briggs of

Burton (I) Pvt. Ltd. and also by the proprietor of the

sub-contractor M/s. Rajkamal Engineering.

. On 5/1/2006, as per the routine, the sub-

contractor's workers resumed their duties at 9.00 am and

two of the sub-contractors's workers Shri Ashok Mule and

Shri Abhiman Korde were carrying out the erection of the

bucket elevator which was at a height of 25 M. Both the

workers climbed the staircase from the backside of the

bucket elevator and reached the platform of the elevator

which was at a height of 25 M. Once the task was

4 Cri. W.P. 107/2007+

accomplished, worker Shri Abhiman Korde de-anchored his

safety belt before descending the staircase. Another

worker Shri Ashok Mule was on his way down when all of a

sudden, the bucket elevator stared bending and due to

movement of the elevator, Shri Mule lost his balance and

fell on the ground. Shri Korde somehow managed to reach

to the derric and climbed down. Shri Korde suffered

minor injuries. However, due to the said fall, Shri

Mule suffered serious injuries and was declared dead by

the doctors at the Government Hospital, Aurangabad.

. On the next day, i.e. on 6/1/2006, the

respondent alongwith another Deputy Director visited the

said factory of the petitioner and made report of the

accident. The company also filed report of the accident

in Form 24 as required under the Factories Act to the

respondent. The respondent also visited the

petitioner's factory for making enquiry into the

accident. The respondent however filed two separate

complaints at Aurangabad. The learned Chief Judicial

Magistrate by order dated 3/5/2006, has issued the

process against the petitioner as aforesaid. Hence,

these Criminal Writ Petitions.

5 Cri. W.P. 107/2007+

4. Learned counsel for the petitioner submits that

the site where the construction of malt silos was being

carried out, cannot be said to be the factory, as no

manufacturing process was being carried out.

Constructions of malt silos is totally distinct and

separate from the manufacturing process of the factory.

Learned counsel submits that the construction of new

structure cannot be said to be a manufacturing process

and the site where the activity completely dis-

associated with the manufacturing process being carried

out cannot be said to be the factory as defined under

the Act. Learned counsel further submits that the

victim of the accident, who were employed by the sub-

contractor cannot be said to be a worker as defined

under the Act and thus, the employer cannot be held

liable for the death or the injuries. Learned counsel

submits that the petitioner/occupier cannot be held

liable in absence of any mens rea or connivance or

knowledge. It was the responsibility of the contractor

and the sub-contractor to look after various safety

measures as per the terms of the contract. The

petitioner has exercised all reasonable, practicable due

diligence and he cannot be held liable. It has alleged

6 Cri. W.P. 107/2007+

in the complaint that cause of the accident is that the

proper system of work was not followed by the workers.

Learned counsel submits that even the allegations made

in the complaint accepted as it is, no case is made out

against the petitioner. The learned Chief Judicial

Magistrate has not applied his mind and mechanically

issued the process.

5. Learned counsel for the petitioner in order to

substantiate his contentions, places reliance on the

following cases :-

(i) The Management of Government Soap Factory, Bangalore - 12 Vs. The Presiding Officer,

Labour Court, Bangalore and ors. AIR 1970

Mysore 225;

(ii) The Nagpur Electric Light and Power Co.

Ltd. Vs. The Regional Director, Employees' State Insurance Corporation AIR 1967 SC 1364;

(iii) Workmen of Delhi Electrict Supply Undertaking Vs. The Management of Delhi Electric Supply Undertaking (1974) 3 SCC 108;

(iv) Hari Shankar Sarma and others V/s. M/s.

Artificial Limbs Manufacturing Corporation and

others AIR 2002 SC 226;

7 Cri. W.P. 107/2007+

(v) Madhavrao Jiwaji Rao Scindia and anr. Vs.

Sambhajirao Chadrojirao Angre and others AIR

1988 SC 709.

6. Learned A.P.P. submits that at the time of the

erection of the elevator, the workers were required to

work at the height of 25 meter and there was every

possibility of falling. So as to ensure safety of those

workers, safety belts were required to be provided to

them. However, during the course of enquiry, no such

safety belts were produced before the complainant.

Learned A.P.P. submits that the place where the accident

took place, is inside of the premises of the factory

where manufacturing process is carried out and,

therefore, the provisions of the Act and Rules framed

thereunder are applicable to the premises. Learned

A.P.P. submits that the place where the accident took

place, the work of assembling silos was going on and

this work is nothing but the "manufacturing process",

within the meaning of section 2(k) of the Act. Learned

A.P.P. submits that even assuming that work of expansion

was going on, the premises where such work was going on,

would be deemed to be the manufacturing process.

Learned A.P.P. submits that prima facie case is made out

8 Cri. W.P. 107/2007+

against the petitioner and learned Chief Judicial

Magistrate has therefore rightly issued the process

against the petitioner/accused. Learned A.P.P. submits

that the petitioner's submissions, by way of defence,

can be dealt with during the course of trial. However,

at the time of issuance of process, the proposed defence

of the petitioner/accused cannot be considered.

. The learned A.P.P., in order to substantiate

her submissions, places reliance in the case of

Uttaranchal Forest Development Corpn. and anr. Vs. Jabar

Singh and others (2007) 2 SCC 112.

7. On careful perusal of the complaint and its

contents, it appears that the complainant visited the

factory of the petitioner/accused on 9/1/2006 and

10/1/2006. Is has stated in the complaint that work of

expansion was being carried out, which includes new

construction, installation of the new machines etc.

Part of this expansion is erection of malt silos and

bucket elevator near the building in which office is

housed. It has further stated in the complaint that

work of erection of bucket elevator is given to Briggs

of Burton (I) Pvt. Ltd., who again, gave this work to

9 Cri. W.P. 107/2007+

sub-contractor M/s. Rajkamal Engineering, Aurangabad.

This work was started around three months before the

accident and the said Rajkamal Engineering put on job 11

workers, to carry out the said work. It has further

stated in the complaint that the work was being

supervised by proprietor of M/s Rajkamal Engineering and

by the Engineers of Briggs of Burton (I) Pvt. Ltd.

Further, the details of the accident are given in the

complaint. It has alleged in the complaint that the

system of work followed while erection of the elevator,

was not safe and there was risk to the health of the

workers doing the work on 5/1/2006. It has further

alleged in the complaint that by not following the safe

system of work, while work of erection of the elevator

was going on, the occupier has contravened the

provisions of the Act.

8. It is rather an admitted position that the

expansion of erection of malt silos and bucket elevator

near the building in which the office is housed, was

going on and the said expansion work also includes the

new construction, installation of new machines etc.

Section 2(m) of the Act, defines factory. It reads as

10 Cri. W.P. 107/2007+

under:-

"factory" means any premises including the

precincts thereof-

(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried

on, or

(ii) whereon twenty or more workers are working, or were working on any day of the

proceeding twelve months, and in any part of which a manufacturing process is being carried

on without the aid of power, or is ordinarily so carried on, - but does not include a mine subject to the operation of the Mines Act, 1952

(35 of 1952) or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place or a poly house or green house engaged in the activity of floriculture of pomology or High

Value Crops.

Explanation I - For computing the number of workers for the purpose of this clause all the workers in different groups and relays in a day shall be taken into account.

Explanation II - For the purpose of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be

construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof.;

Explanation III - For the purpose of this clause, the term "High Value Crops" shall mean and include -

(i) Plantation of fruits, flowers and vegetables in a green house or shet-net house;

11 Cri. W.P. 107/2007+

(ii) Plantation of exotic fruits, flowers and vegetables;

(iii) Plantation of crops by use of bio- technology;

(iv) Plantation of medicinal and aromatic plants and processing industry;

(v) Production of mushroom and processing industry;

(vi) Production of fruits by micro-drip

irrigation by use of plastic and mulching;

(vii) Nurseries and processing industry where vegetables are produced in a green house;

(viii) Nursery of ornamental plants;

Section 2(k) of the Act defines the "manufacturing

process", which reads as under:-

"manufacturing process" means any process for--

(i) making, altering, repairing, ornamenting,

finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal,

(ii) pumping oil, water, sewage or any other substance; or]

(iii) generating, transforming or transmitting power; or

(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding;] [or]

12 Cri. W.P. 107/2007+

(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; [or]

(vi) preserving or storing any article in cold storage;

Section 2(n) of the Act defines the term "occupier",

which reads as under:-

"occupier" of a factory means the person who

has ultimate control over the affairs of the factory [Provided that--

(i) in the case of a firm or other association of individuals, any one of the individual

partners or members thereof shall be deemed to be the occupier;

(ii) in the case of a company, any one of the

directors shall be deemed to be the occupier;

(iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the

affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier: Provided further that in the case of a ship which is being repaired, or on which maintenance work is being carried out,

in a dry dock which is available for hire,--

(1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for by or under-

(a) section 6, section 7A, section 7B, section 11 or section 12;

13 Cri. W.P. 107/2007+

(b) section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;

(c) section 18, section 19, section 42, section 46, section 47 or section 49, in relation to

the workers employed on such repair or maintenance;

(2) the owner of the ship or his agent or master or other officer-in-charge of the ship

or any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes

of any matter provided for by or under section 13, section 14, section 16 or section 17 (save

as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter

VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to--

(a) the workers employed directly by him, or by or through any agency; and

(b) the machinery, plant or premises in use for

the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in-charge or person;"

9. As per the definition of term "occupier", an

occupier of a factory means a person, who has ultimate

control over the affairs of the factory. There is no

dispute that the petitioner's factory comes within the

meaning of factory, as defined in section 2(m) of the

Act and that the petitioner is the occupier, as defined

in terms of section 2(n) of the Act.

14 Cri. W.P. 107/2007+

10. Learned counsel for the petitioner, by

referring the aforesaid definition, submits that the

site where the construction of malt silos was being

carried out, cannot be said to be a factory, as no

manufacturing process was being carried out there.

Admittedly, the expansion work was being carried out in

the factory premises, which was totally distinct and

separate from the manufacturing process of the factory.

Construction of such expansion, cannot be said to be a

manufacturing process as defined under the Act.

11. In the case of The Management of Government

Soap Factory, Bangalore, referred supra and relied on by

learned counsel for the petitioner, the Mysore High

Court has observed that dismantling of the machinery and

plant in the existing premises of the factory and

transporting the same for being shifted to the new

premises, cannot be said to be any part of the process

of manufacturing. Such shifting of plant and machinery

to a new premises, is not a normal activity of a

factory. It is an extraordinary activity which is de-

hors the ordinary manufacturing process. In paragraph

no.54, the Mysore High Court has made the following

observations :-

15 Cri. W.P. 107/2007+

"54. The activities of altering, breaking up, demolishing and adapting, referred to in sub-

clause (I) of Section 2(k) of the Act, are all those done in the course of manufacture, that

is, in the process of transformation of raw materials into the finished product. In our opinion, dismantling of machinery and plant in

the existing premises of a factory and transporting the same for being shifted to new premises, cannot be said to be any part of the

process of manufacturing. Such shifting of

plant and machinery to new premises, is not a normal activity of a factory. It is an

extraordinary activity which is de hors the ordinary manufacturing process. In the present case, dismantling and transport of plant and

machinery of the Factory were not for the

purpose of normal activity of repair or replacement, but were for the unusual purpose of shifting of the Factory itself from old

premises to new premises."

. In the case of The Nagpur Electric Light and

Power Co. Ltd. referred supra and relied on by learned

counsel for the petitioner, the Supreme Court has

observed that inside the same compound wall, there may

be two or more premises; the premises used in connection

with manufacturing process may constitute a factory, and

16 Cri. W.P. 107/2007+

the other premises within the same compound wall may be

used for purpose unconnected with any manufacturing

process and may form no part of the factory.

Dis-agreeing with the observations made by the High

Court to the effect that the manufacturing process is

carried on by the Company not only in the building

called the workshop or the receiving station but over

the whole area over which the process of transmission is

carried on including the sub-stations where electricity

is stored and supplied to the consumers by further

transmission lines and every part over which this

process is carried on will be a factory within the

meaning of the Employees' State Insurance Act, the

Supreme Court observed that this line of reasoning

cannot be accepted and it seems to be startling

proposition that every inch of the wide area over which

the transmission lines were spread, is a factory within

the meaning of the definition of "factory" in the

Employees' State Insurance Act.

12. In the case of Uttaranchal Forest Development

Corpn. (cited supra), relied upon by the learned A.P.P.,

the Supreme Court has almost referred all the previous

judgments on this point, including the cases relied upon

17 Cri. W.P. 107/2007+

by the learned counsel for the petitioner. In this

cited case, learned counsel appearing for the petitioner

did not press the question of premises and confined his

arguments to the issue that cutting of the tress on the

wide area of the forest does not amount to manufacturing

process and, therefore, the arguments were considered

and confined to the manufacturing process alone.

However, both the sides admitted that the work of the

respondent consist of cutting of the trees by axe and

changing the shape of timber into logs by saw. In the

backdrop of the said admission, the Supreme Court has

observed that the process of cutting of trees by axe and

changing the shape by saw, both squarely fall within the

definition of the first part of the manufacturing

process as cutting would be included into the process of

"making" and "breaking up" included in the said

definition. Further, the changing of shape by saw would

be included in the process "altering" "adapting" of the

trees. Further, admittedly, the trees and logs both

fall within the meaning of "any article or substance",

the second part of the definition. Lastly, it is

observed that the conversion of trees into logs is

admittedly for the purpose of sale, disposal, use and

last but not the least for transport, all of which fall

18 Cri. W.P. 107/2007+

within the third part of the definition.

. In order to explain the above observations,

"manufacturing process", as defined in the Act under

section 2(k) can be divided into three parts, namely:

(i) the process - "making, altering, repairing,

ornamenting, finishing, packing, oiling, washing,

cleaning, breaking up, demolishing or otherwise treating

or adapting"; (ii) the object - "any article or

substance" and (iii) the purpose - "with a view to its

use, sale, transport, delivery or disposal".

. In paragraph no.38 of the judgment, while

considering the submissions made on behalf of the

petitioner with regard to the definition of

"manufacturing process", the Supreme Court has observed

that the above submission is untenable in law and cannot

be sustained for more than one reason. The Supreme

Court further observed that before dealing with the

definition of "manufacturing process", as defined in

section 2(k), it is necessary to briefly refer to the

functions and powers of the Corporation as mentioned in

Sections 14 and 15 of the U.P. Forest Corporation Act,

1974. The functions and powers of the Corporations are

inter-alia to undertake removal and disposal of trees

19 Cri. W.P. 107/2007+

and exploitation of forests and resources. The

Corporation has also the power to set up workshops or

factories for processing raw materials.

13. In the instant case, however, no such

manufacturing process was going on at the relevant time

and admittedly the work of expansion of the factory was

going on. The said expansion work includes a new

construction, installation of new machines and a part of

the expansion is also erection of malt silos and bucket

elevator near the building in which the office is

housed.

14. Learned A.P.P. submits that after completion of

the said work, in future, the malt silos and the other

completed work would be used for the manufacturing

process and as such, it shall be deemed to have been

used for carrying out the manufacturing process

activity.

15. I do not think that the aforesaid activities,

as stated in the complaint, itself satisfy the

ingredients of the definition of "manufacturing

process", as defined in section 2 (k) of the Act. In

the case of Uttaranchal Forest Development Corpn. and

20 Cri. W.P. 107/2007+

anr. Vs. Jabar Singh and others (cited supra), the

entire area of the region wherein the standing trees

which were allotted to the forest corporation, were

admitted by both the sides as factory premises for the

reason that functions and powers of the corporation are

inter alia to undertake removal and disposal of the

trees and exploitation of the forest and resources.

. In the extreme opposite manner, it could be

stated that inside the compound wall, there may be two

or more premises and the premises used in connection

with the manufacturing process may constitute factory

and the other premises within the same compound wall may

be used for the purpose un-connected with any

manufacturing process. Only because the place where the

accident took place, is a place inside of the premises

of the factory, such penal provisions cannot stand

attracted against the petitioner.

. In the case of Madhavrao Jiwaji Rao Scindia and

anr. (cited supra) and relied on by learned counsel for

the petitioner, in paragraph no.7 of the judgment, the

Supreme Court has made following observations :-

"7. The legal position is well-settled that

21 Cri. W.P. 107/2007+

when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted

allegations as made prima facie establish the

offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is

expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised

for any oblique purpose and where in the opinion of the Court chances of an ultimate

conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a

criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even

though it may be at a preliminary stage."

In the instant case, uncontroverted allegations even

prima facie, did not establish the offence against the

petitioner. It is thus not expedient and in the

interest of justice to permit the prosecution to

continue.

16. In view of above discussion and the law laid

down by the Supreme Court in the various cases, as

discussed above in detail, Writ Petitions No. 107 of

2007 is allowed in terms of prayer clause 7(i) and Writ

22 Cri. W.P. 107/2007+

Petition No. 108 of 2007 is allowed in terms of prayer

clause 9(i) thereof.

17. Rule is made absolute in the aforesaid terms.

18. Both the Writ Petitions are accordingly

disposed of.

                                                    
                                             
                                                     [V.K. JADHAV]
                                    ig                   JUDGE
    arp/