Hridayashwar Jha vs State Of Jharkhand
2023 Latest Caselaw 1914 Jhar

                                         1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                Cr.M.P. No. 3074 of 2014

      Hridayashwar Jha                                       .....   ...     Petitioner
                                    Versus
      1. State of Jharkhand
      2. Shri Bharat Bhushan Prasad                  .....   ...       Opposite Parties
                                  With
                            Cr.M.P. No. 2880 of 2014

      Binay Kumar Singh                                      .....   ...     Petitioner
                                    Versus
            1. State of Jharkhand
            2. Shri Bharat Bhushan Prasad             ..... ...        Opposite Parties

                             --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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      For the Petitioners                 :Mr. A.K. Das, Advocate
      For the State             :         Mrs. Shweta Singh, A.P.P.
                                          (in Cr.M.P. No. 3074/2014)
                                            Mr. Santosh Kr. Shukla,
                                         (in Cr.M.P. No. 2880/2014)

                                ------

10/ 04..05.2023     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. 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. 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 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. 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 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.

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. 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.

(Sanjay Kumar Dwivedi, J.) satyarthi/-