Mrs. Harjot Kaur vs The State Of Jharkhand
2022 Latest Caselaw 565 Jhar

                                                    1                          Cr.M.P. No. 1913 of 2015


                         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    Cr.M.P. No. 1913 of 2015
                  Mrs. Harjot Kaur, W/o Shri Dipak Kumar Singh, presently working as
                  Secretary, Department of Tourism, Government of Bihar, Old
                  Secretariat, P.O. & P.S. Sachivalaya, Patna, State: Bihar, Pin-800015
                                                                     ... Petitioner
                                           -Versus-
             1.   The State of Jharkhand
             2.   The Factory Inspector, Saraikela-Kharsawan, Circle No.2, P.O., P.S.
                  Town & District- Saraikela Kharsawan, State: Jharkhand
                                                                     ... Opposite Parties
                                            -----

             CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----
             For the Petitioner             : Ms. Surabhi, Advocate

For the Opposite Party-State : Mr. Veervijay Pradhan, A.P.P.

-----

09/21.02.2022. Heard Ms. Surabhi, learned counsel for the petitioner and

Mr. Veervijay Pradhan, learned A.P.P. for the State.

2. This petition has been taken through Video Conferencing in view of

the guidelines of the High Court taking into account the situation arising due

to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been

heard.

3. This petition has been filed for quashing of entire criminal prosecution

including the order taking cognizance dated 18.05.2015 arising out of and in

connection with G.O. No.100/12 filed under Section 92 of the Factories Act,

1948, pending in the court of the learned Chief Judicial Magistrate,

Saraikela.

4. The complaint was filed by the Factory Inspector, Saraikela-

Kharsawan, Circle-2, Saraikela alleging therein that the accused persons

have contravened the provisions of sub-section 2(a) and 2(c) of Section 7-A

of the Factories Act, 1948 read with Rule 55(A)(2) of the Jharkhand

Factories Rules, 1950:

(i) By allowing the owner of the van to drive the van in reverse

direction on a narrow approach road, who was not a regular driver

and who was in a hurry to finish the job as soon as possible, so that

he can go to his house and drop his daughter to the examination

centre that also without any helper or signal man, and without a

mirror especially on the left side of the van;

      (ii)    By not imparting proper training to the contractor workers and

      by      not   supervising   the       jobs   done   by   them       or    their

agencies/contractors, and by not making strict and smart supervision

of the work which was going inside the factory premises; and

(iii) By allowing Shri Shrawan Kumar Sharma to give direction to

the driver in an unsafe manner while unsafe condition was prevailing

there, as a result of which, Sri Shrawan, contract labour met with an

accident on 13.03.2012.

The complaint was forwarded by the Factory Inspector to the Court of

the learned Chief Judicial Magistrate, Saraikela with a request to take

cognizance under Section 105 of the Factories Act, 1948 for contravention

of sub-section 2(a) and 2(c) of Section 7-A of the Factories Act, 1948 read

with Rule 55(A)(2) of the Jharkhand Factories Rules, 1950 punishable under

Section 92 of the Factories Act, 1948.

5. Ms. Surabhi, learned counsel for the petitioner submits that the

petitioner was not an occupier and she was working as Managing Director

of the Bihar State Co-operative Milk Producers' Federation Limited. She

further submits that the word occupier is defined under Section 2(n) of the

Factories Act, 1948, which provides that occupier of a factory means the

person who has ultimate control over the affairs of the factory provided that

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.

By way of referring page 60 of the petition, which is Form No.17-A by which

it is required to disclose the name of occupier, she submits that in Form

No.17-A, the name of occupier is disclosed as Dilip Kumar Sarkhel and the

cognizance has been taken against the petitioner, who was the Managing

Director of the said Federation. She also submits that the accident was not

taken place in the premises of the Factory or Federation. The accident took

place due to laches on the part of the deceased. She further submits that

the petitioner is a Government official and the protection in terms of Section

197 Cr.P.C. is there and without obtaining any sanction under Section 197

Cr.P.C., the case has been instituted against the petitioner. She also submits

that as per the judgment in case of J.K. Industries Ltd. v. Chief

Inspector of Factories and Boilers , reported in (1996) 6 SCC 665,

certain provisions of the Factories Act are required to be looked into in its

entirety in coming to the conclusion that the petitioner is liable for such

irregularity or not. She draws attention of the Court towards Sections 97

and 111 of the Factories Act and submits that in the cognizance order, it has

not been disclosed how the petitioner is involved in such accident. She

relied upon the judgment rendered by the Hon'ble Supreme Court in the

case of Sarav Investment and Financial Consultancy (P) Ltd. v.

Lloyds Register of Shipping Indian Office Staff Provident Fund ,

reported in (2007) 14 SCC 753.

6. Mr. Veervijay Pradhan, learned A.P.P. for the State submits that there

is no illegality in filing of the complaint as the accident has occurred and

that is why the case under the provisions of the Factories Act has been

rightly filed.

7. It has been held by the Hon'ble Supreme Court in the case of Visitor

AMU and Ors. v. K.S. Misra, reported in (2007) 8 SCC 593 in paragraph

13, which is quoted herein below:

"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 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)"

8. It transpires from Form No.17-A that the deceased was an employee

of contractor D. Construction and the accident took place by the vehicle of

the milk dealer Ram Deo Mahato in vehicle no. BR 16G-0340. The accident

took place while reversing the covered Tata 407 Van. The deceased was

giving direction to the driver on the rear side of the vehicle dangerous

protruding his head out of the vehicle towards right side of the vehicle so

that he could give proper direction to driver. It appears that this is a case of

motor vehicle accident, which has not happened within the premises of the

Factory or Federation.

9. 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."

10. On perusal of the said Rule, it transpires 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.

11. In the case in hand, the Factory Inspector alleged that the occurrence

took place because the owner of the van allowed to drive the van in reverse

direction on a narrow approach road without a mirror especially on the left

side of the van, but how the petitioner was held responsible for the such

occurrence, has not been disclosed in the complaint and enquiry as no

proper enquiry was conducted.

12. 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 1[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."

13. 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).

14. 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 that too when the

petitioner was not occupier, as disclosed in Form No.17-A under the Act.

15. On perusal of the complaint, it transpires that there is no material on

record to prima facie suggest that the petitioner was Occupier or Manager

and in any manner she was held responsible for the unfortunate accident.

Sections 97 and 111 of the Factories Act was not looked into by the

Inspector, as it was admitted in the complaint itself that the workman

concerned was in a hurry to finish the job as soon as possible so that he

can go to his house and drop his daughter to the examination centre and he

was giving direction to the driver on the rear side of the vehicle dangerous

protruding his head out of the vehicle. Thus, it is an admitted fact that the

deceased on his own acted casually. No case is made out against the

petitioner in terms of the Factories Act and 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 the 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 Factory Inspector while submitting the report and at

the time of filing the complaint.

16. Earlier the petitioner has moved before this Court in Cr.M.P. No.1723

of 2013, which was allowed vide order dated 20.08.2014 and the

cognizance order was quashed and the court below was directed to pass the

order afresh, in accordance with law and after application of judicial mind.

Pursuant thereto impugned cognizance order has been passed. In the fresh

cognizance order also, it has not been disclosed how the petitioner is the

Occupier. Sections 97 and 111 of the Factories Act have also not been

discussed.

17. In view of the above reasons and analysis, entire criminal prosecution

including the order taking cognizance dated 18.05.2015 in connection with

G.O. No.100/12 pending in the court of the learned Chief Judicial

Magistrate, Saraikela is, hereby, set aside.

18. Accordingly, this petition stands allowed and disposed of.

19. Pending interlocutory application, if any, also stands disposed of.

20. Interim order dated 26.07.2017 stands vacated.

(Sanjay Kumar Dwivedi, J.) Ajay/