U.K.Das,Dy.Director [Safety] vs Ardeshir Bomanji A.Dubash & Ors
2017 Latest Caselaw 2397 Bom

                                      1                    202-apeal-100-1997.doc

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO. 100 OF 1997


      U.K. Das,
      Deputy Director (Safety)
      Inspector Dock Safety, BPT OCS,
      Building, Indira Docks, 3rd Floor,
      East Wing, P.D'Mello Road,
      Bombay - 400 038,                                  ...     Appellant

                      V/s.

      1. Ardeshir Bomanji A Dubash
      Managing Director, M/s. A.B. Cursetjee
      and Sons Pvt. Ltd,
      6, K. Dubash Marg,
      Bombay - 400 023.

      2. M/s. A.B. Cursetjee and Sons Pvt. Ltd.
      6, K. Dubash Marg, Bombay 400 023.

      3. The State of Maharashtra                        ...     Respondents

                                          ------


      Mr. Deepak Thakre, APP for the State.

      Mr. Naresh Rathani, i/b Ashwin Ankhad & Associates for the
      Respondents.

                                          -----




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                                  2                      202-apeal-100-1997.doc

                                     Coram : P.N.DESHMUKH, J.

Date : 8 May 2017

ORAL JUDGMENT

1. This appeal takes exception to judgment passed by the

learned Additional Chief Metropolitan Magistrate, 38th Court,

Ballard Pier, Mumbai dated 27th April 1995 acquitting the

Respondents of the offences punishable under Sections 14(2) (a) of

the Dock Workers (Safety, Health and Welfare) Act, 1986, No.54 of

1986 for breach of Regulation 66(1), 73(1), 85(8) (a), 91(3) and 117

read with Regulation 7(4) (b) of the Dock Workers (Safety, Health

and Welfare) Regulation, 1990. The record shows that none

appeared for the Appellant since several days and on 4th April 2017

Appeal thus came to be fixed for final hearing as a last chance.

2. Even today none present for the Appellant. Heard, the

learned counsel Mr. Rathani, for both Respondents.

3. In view of ration laid down in the case of Bani Singh &

Ors Vs State of U.P.1 appeal is duly heard as in this case 1 AIR 1996 Supreme Court 2439.

3 202-apeal-100-1997.doc

considering scope of Section 386 of Code of Criminal Procedure. It

is laid down that Court is not bound to adjourn the case but should

dispose of appeal on merits and shall not dismiss the Appeal

simplicitor for non prosecution. In that case on the appointed day

neither of the Appellants or there counsel was present. In that view

of the matter heard learned counsel for the Respondent who has

contended that from the evidence on record there is nothing to

establish that Respondents were in any manner responsible for

taking safety measures of deceased worker who died on docks

accidentally in an incident involved in present case.

4. Facts in brief needed to be recorded for understanding

the controversy involved in this Appeal are as follows:-

Complaint was filed by the Inspector, Dock Safety for

the port of Bombay against present Respondents working as

Stevedores alleging that on 2nd May 1990, while the process of

loading and unloading of the container was going on the ship

berthed at 5, Victoria Docks, one person Manikam Velu met with an

4 202-apeal-100-1997.doc

accident while he was loading the container and it is alleged that the

Respondents are responsible for causing such death as they failed to

take care and safety while carrying work of loading and unloading

of containers from the ship. Perusal of evidence on record reveals

that at the material time the deceased was allowed to work on the

top of container and he was not provided with personal equipments

such as Gloves, Helmet, Safety, Shoes, etc. by his employer. The

evidence of PW No.2 further reveals that in fact no worker should

be allowed to stand on the container while the process of lifting or

lowering down of the containers was in progress. According to

Regulation no employer will do anything that will endanger his life.

Though it is come in evidence of PW No.2 Ahmed Raza Beg,

Assistant Manager of Bombay Dockyard Board, that these

Respondents have not informed about death of deceased Manikum

Vellu in writing and are therefore prosecuted. In his cross

examination it is admitted that the letter dated 20th September 1993

informing death of Vellu was received by his office. It has come on

record that the deceased was employed by the Bombay Dock

Labour Board and the Bombay Dock Labour had informed about

5 202-apeal-100-1997.doc

the death of the deceased Vellu. However PW 2 did not exactly

remember the date as to when this information was received. From

the evidence of PW No.2 it is further revealed that deceased was

employed by Bombay Dock Yard Board. Admittedly PW No.2 was

not present at the time of incident in question and has deposed on

the strength of information received from his office.

5. The evidence of PW No.2 Ahmed Raza Beg also

establish fact of deceased worker having being provided by

Bombay Dock Labour Board. He has deposed that at the time of

incident they had provided 16 workers to work on this particular

ship and they had given these 16 workers from their role and they

were their bonafide workers. He has further admitted that when

such workers are provided by the board, the board is responsible for

the safety of the workers. In view of the aforesaid evidence,

therefore, it is found that the deceased worker was provided by

Bombay Dock Labour Board with whom all these workers are

registered. The board is also required to deposit their wages, levy

and welfare fund with the board. The Assistant Manager has also

6 202-apeal-100-1997.doc

admitted that the registered employees of the board are not making

any direct payment to the registered labourer and the board is

responsible for the workers.

6. The Respondent No.1 appears to be Managing Director

of Respondent No.2 Company and as such engaged in activities of

loading and unloading ships and no way found concerned with

providing of workers for that purpose which are provided by the

Bombay Doc Labour Board.

7. The evidence of PW No.3 Riyaz Ahmed Mohd who is a

Crane Driver needs no much consideration as his evidence only

establishes fact of accidental death of deceased Vellu. Having

considered aforesaid discussed evidence, it is primarily noted that

Respondents are in no way concerned in providing safety measures

to workers since they are not provided by them. Moreover, the

crane which was being used for lifting the containers was on the

ship itself and the deceased worker was working in the Bombay

Dock Labour Board and as such no responsibility can be casted

7 202-apeal-100-1997.doc

upon the Respondents for any reason as from the above discussed

evidence it is found that Respondents are not responsible for

providing safety measures to the workers provided by board.

8. Having considered above discussion and considering the

fact that scope of interference in an Appeal against acquittal is very

limited, and unless the view taken by the Trial Judge is found to be

impossible or perverse, there can be no interference in it. The

learned Judge by well reasoned order has found that the

complainant has miserably failed to prove the charge levelled

against the Respondents.

9. In that view of the matter as there appears no reason to

interfere with the Appeal. Same is liable to be dismissed, hence

following order:-

The Appeal is dismissed.

(P.N.DESHMUKH, J.)