Kerala High Court

Sabu M Jacob vs State Of Kerala on 18 February, 2022

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
                        CRL.MC NO. 6040 OF 2016
  [AGAINST S.T.NO. 4719 OF 2014 PENDING ON THE FILES OF JUDICIAL
              FIRST CLASS MAGISTRATE COURT, KOLENCHERY]
PETITIONER/ACCUSED:

            SABU M. JACOB
            AGED 53 YEARS
            S/O.JACOB, AGED 53 YEARS,MECKAMKUNNEL HOUSE, VILANGU
            KARA,KIZHAKKAMBALAM VILLAGE, VILANGU.P.O.,ERNAKULAM
            DISTRICT.683 561, MANAGING DIRECTOR, KITEX GARMENTS
            LIMITED(PROCESSING), KIZHAKKAMBALAM,
            ERNAKULAM DISTRICT-683 561.
            BY
            SR.ADVOCATE SRI.GEORGE POONTHOTTAM
            ADV. SMT.NISHA GEORGE


RESPONDENTS/COMPLAINANT & STATE:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            ERNAKULAM,PIN CODE-682 031.
    2       THE INSPECTOR OF FACTORIES AND BOILERS
            GRADE-I, PERUMBAVOOR, HEAD QUARTERS ALUVA,ERNAKULAM
            DISTRICT.683 101.

            BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR
     THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   HEARING   ON
03.02.2022, THE COURT ON 18.02.2022 PASSED THE FOLLOWING:
 CRL.M.C.No.6040 of 2016                   2

                              O R D E R

The petitioner is the accused in S.T.No.4719/2014 on

the file of the Judicial First Class Magistrate Court,

Kolencherry. The aforesaid case was registered on the

basis of a complaint submitted by the 2nd respondent, who

is the Inspector of Factories and Boilers, Perumbavoor,

alleging violation of provisions under sub-section (1) of

Section 7A and clauses (b) and (d) of sub-section (2) of

Section 7A of the Factories Act, 1948. The violation of

rule 81D of the Kerala Factories Rules, 1957 was also

alleged. The aforesaid violation attracts the offence

under Section 92 of the Factories Act.

2. The sum and substance of the prosecution case is

that, the petitioner who is the Managing Director of Kitex

Garments Limited failed to ensure, health, safety and

welfare of the workers, while they were at work in the

factory by providing and maintaining arrangements for the

same. It is also alleged that, on account of the said

lapses, an accident occurred in the factory on 24.5.2014

at 3 a.m. in which one P.T.Ajeesh died.

3. On the basis of the incident, as per Annexure A-2

order, the Director of Factories and Boilers,

Thiruvananthapuram granted sanction for prosecuting the

petitioner in his capacity as the Occupier of the factory

above named. On the basis of such sanction, Annexure-A1

complaint was submitted by the 2nd respondent. This

Crl.M.C. is filed by the petitioner seeking to quash

Annexure-1 complaint and all further proceedings pursuant

thereto.

4. Heard Sri. George Poonthottam, the learned Senior

Counsel appearing for the petitioner and Sri. Sudheer

Gopalakrishnan, the learned Public Prosecutor for the

State.

5. The contention put forward by the learned Senior

Counsel is that, the prosecution initiated against the

petitioner is unsustainable. According to him, the

prosecution contemplated under Section 92 of the Factories

Act is against the 'occupier' of the premises and in the

absence of any specific documents indicating the same, the

petitioner who is the Managing Director of the Company,

cannot be treated as an occupier. It is also contended

that the concept of vicarious liability cannot be

attributed to the accused in a criminal prosecution and no

person can be implicated in an offence on the basis of the

said principle. In this case, merely because of the reason

that, he is the Managing Director of the Company, he

cannot be implicated as an accused as the same will have

an effect of applying the principles of vicarious

liability which is not supported by the principles of law

relating to the criminal prosecution. The learned counsel

places reliance upon Maksud Saiyed v. State of Gujarat and

Others [2008(5)SCC 668], Verma G.N. v. State of Jharkhand

and Another [2014(4)SCC 282].

6. On the other hand, the learned Public Prosecutor

brought my attention to the statement submitted by the 2nd

respondent wherein it was specifically stated that, going

by the definition of 'Occupier' as contained in Section

2(n) of the Factories Act, 1948, any of the directors of

the Company shall be deemed to be 'Occupier'. By placing

reliance upon the said provision, it was pointed out by

the learned Public Prosecutor that the prosecution was

rightly initiated against the petitioner as he is the

Managing Director of the Company. According to the learned

Public Prosecutor the deeming provision contemplated under

Section 2(n) of the Factories Act is attracted. In these

circumstances, he prays for dismissal of the Crl.M.C.

7. Thus, the question arises is as to whether, the

prosecution against the petitioner herein by treating him

as an 'occupier' of the factory is correct or not ? The

fact that, the petitioner is the Managing Director of the

Company is not disputed. The expression "Occupier" is

defined under Section 2(n) of the Factories Act, 1948

which reads as follows:

"2(n) '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.

The stipulation in sub-section (ii) of Section 2(n) of

the Act clearly provides that, in case of a Company, any

one of the directors of the Company shall be deemed to be

an 'Occupier'. It is true that, the 'Occupier' is defined

as the person who has ultimate control over the affairs of

the Company, but the deeming provision as mentioned above

is contained in the proviso to the said definition, which

extends the liability to one of the directors of the

company. The thrust of the argument of the learned Senior

Counsel is that, since the occupier of a factory is a

person, who has ultimate control over the affairs of the

factory, the person, who can be treated as an 'occupier'

is the only person who is having the direct control over

the affairs of the factory. The petitioner being the

Managing Director of the Company is entrusted with the

responsibility to manage the entire institution (Company)

and the specific control over the affairs relating to the

factory cannot be treated as a matter directly vested upon

him.

8. The learned Senior Counsel also places reliance

upon Annexure-A3 report of the accident submitted in Form

18 before the 2nd respondent, by the Company. Annexure A3

is submitted pursuant to the accident which is the subject

matter of the complaint and the same is dated 24.5.2014.

It is pointed out that, in Annexure A3, the name of the

occupier is shown as one Sajeev Koshy, Kitex Quarters,

Kozhakkambalam. Therefore, it is submitted that, since the

Company has already intimated the 2nd respondent that the

said Sajeev Koshy is the occupier of the factory, the

prosecution ought not to have initiated against the

petitioner by invoking the deeming provision under Section

2(n) of the Factories Act, 1948.

9. However, the crucial aspect to be noticed in this

regard is that, while considering the question as to who

is the 'occupier', Annexure A3 report of the accident

cannot be treated as a relevant document. This is

particularly because, Annexure A3 accident report which is

submitted in form 18 is intended to fulfill the obligation

of the factory as contemplated under Rule 123 of the

Kerala Factories Rules, 1957. Rule 123(1) of the said Rule

mandates that when any accident which results in the death

of any person or which results in such bodily injury to

any person as is likely to cause his death, or any

dangerous occurrence specified in the schedule takes

places in a factory, the Manager of the factory shall

forthwith send a notice thereof to the authorities

concerned. Thus it is evident that, the obligation as

contemplated under Rule 123 is upon the Manager of the

factory. The expression 'Manager' has been defined under

Rule 2(l) of the Kerala Factories Rules as per which the

'Manager' means the person responsible to the occupier for

the working of the factory for the purposes of the Act.

Thus, it is evident that the Manager is a person

responsible to the occupier for the working of the

factory. Therefore, the occupier and the manager cannot be

the same person. Moreover, the penal proceedings initiated

against the petitioner is for the offence punishable under

Section 92 of the Factories Act, 1948 for the violation of

the provisions mentioned above. Section 92 of the Act

reads as follows:

92. General Penalty for offences.- Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to [two years] or with fine which may extend to [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued.

[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than[twenty five thousand rupees] in the case of an accident causing death, and [five thousand rupees] in the case of an accident causing serious bodily injury.

Explanation:- In this section and in section 94 "serious bodily injury" means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint(not being fracture of more than one bone or joint) of any phalanges of the hand or foot.]

Thus, as per the said provision, in respect of

contravention of any of the provisions of the Factories

Act, prosecution can be initiated against both the

occupier and the manager. In this case, the prosecution

has been initiated against the occupier. There are no

documents produced by him indicating that any person was

nominated by the factory, before the authorities

concerned, as an occupier, as on the date of occurrence of

the accident, which is the cause of action for initiation

of prosecution. As far as the name of the person mentioned

as occupier in Annexure A3 is concerned, the same is a

post accident document and the contents of the same with

regard to the name of the occupier specified therein,

cannot be treated as valid for the purpose of initiation

of prosecution under Section 92 of the Act. In other

words, since Annexure A3 is submitted after the occurrence

of the accident, it could be possible to name any person

as occupier so as to create an escape route for the

person who was the real occupier as on the date of

accident.

10. Thus it is evident that, as on the date of

accident, no documents were submitted before the

authorities concerned nominating any person as occupier or

intimating the statutory authorities, as the person who is

in ultimate control over the affairs of the factory. In

the absence of any such specific nomination or intimation

in this regard, in my view, the deeming provision

contemplated under Section 2(n) of the Factories Act would

come into play. As per the aforesaid provision, any one of

the directors of the company can be the occupier of the

Company.

11. However, I am conscious of the fact that, a

Company can have several directors and it need not

necessarily be the Managing Director who can be held

responsible as an occupier of the factory. It is a

question of fact, which has to be substantiated during the

course of trial. The said question cannot be considered in

a proceeding of this nature.

12. The learned Senior Counsel by placing reliance

upon the judgments referred above, contended that the

principles of vicarious liability cannot be imported to

criminal jurisprudence and in this case, the petitioner

was implicated as an accused, by applying the aforesaid

principles on the ground that he is the Managing Director

of the Company. However, I am not inclined to accept the

said contention. It is true that, the principle of

vicarious liability is alien to the criminal jurisprudence

under normal circumstances. However, when the statute

prescribes culpability upon a specific person on the basis

of the position he is holding in the institution, there is

no illegality in implicating such person for the offence

alleged. In this case, by virtue of the deeming provision

as contained under Section 2(n) of the Act, any of the

directors of the Company can be treated as occupier of the

Company and in the absence of any other materials

indicating nomination or intimation of any person as

occupier, the petitioner can be prosecuted by treating him

as the occupier of the Company on the strength of the

deeming provision mentioned above.

13. The decisions relied upon by the learned counsel

for the petitioner cannot be made applicable to the facts

and circumstances of the case. The judgment in Maksud

Saiyed's case (supra) was rendered by the Hon'ble Supreme

Court in respect of the offences punishable under various

provisions of the Indian Penal Code where the provision

similar to the one contemplated under Section 2(n) of the

Factories Act was not there. Therefore, the aforesaid

principles cannot be made applicable to this case. The

judgment in Verma G.N's case (supra) was rendered by the

Hon'ble Supreme Court in Mines Act, 1952 and the Hon'ble

Supreme Court was pleased to consider the prosecution

against an agent as defined under Section 18(5) of the

Act. The aforesaid provision stipulated criminal liability

upon certain specific officers who can be treated as

deemed agent and the said persons mentioned therein were:

"i) the official or officials appointed to perform duties of supervision in respect of the provisions contravened;

ii) the manager of the mine;

iii) The owner and agent of the mine;

iv) The person appointed, if any, to carry out the responsibility under sub- section (2):

Provided that any of the persons aforesaid may not be proceeded against if it appears on inquiry and investigation, that he is not prima facie liable."

The Hon'ble Supreme Court noticed that, the petitioner

therein who was the Chief General Manager, was not

appointed as the officer to perform the duties of

supervision in respect of the provisions contravened. The

aforesaid conclusion was arrived at by the Hon'ble Supreme

Court in view of the fact that the stipulation in the

relevant provision necessitated appointment of an officer

to perform the relevant duties and therefore in the

absence of any document indicating such appointment, the

prosecution is bad as against him. However, the

stipulation in Section 92 of the Act is relating to

prosecution against the manager and occupier. The term

'occupier' as defined under Section 2(n) of the Act

contemplates a provision where any one of the directors of

the company can be deemed to be the occupier. The

requirement for an appointment as an agent as contemplated

under the Mines Act, is not there in the provisions of

Factories Act, for treating the director as an occupier,

for the purpose of the Act. Therefore, In the absence of

any nomination or intimation to the contrary, any of the

directors can be prosecuted for the offences. Thus the

principles laid down in Verma G.N's case (supra) cannot be

made applicable in this case.

14. In such circumstances, I do not find any merit in

the contentions put forward by the petitioner, mainly

because of the reason that, the question as to whether the

petitioner was the occupier even in terms of deeming

provision, is a matter to be adjudicated at the time of

trial and after evaluating the evidence adduced. This is

because, the deeming provision as contemplated under

Section 2(n) of the Act is confined to only one of the

directors, which would indicate that, the director who is

in control of the factory shall be held responsible as an

occupier. In the result, this Crl.M.C. is dismissed,

leaving open the said question, as it is to be decided

during the course of trial.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

pkk

APPENDIX OF CRL.MC 6040/2016

PETITIONER'S ANNEXURES :

ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT DATED 23.08.2014 UNDER SECTION 105(1) OF THE FACTORIES ACT, 1948. ANNEXURE A2 CERTIFIED COPY OF THE ORDER BEARING NO.G2-