Madras High Court
S.V.Raja vs Deputy Director-I on 21 June, 2022
CRL.O.P.No.6640 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.6640 of 2020
and
Crl.M.P.No.3653 of 2020
S.V.Raja ... Petitioner
Vs.
Deputy Director-I,
Industrial Safety and Health,
T.S.No.47/1, Block No.6,
Thiru.Vi.Ka. Industries Estate,
Near Metro Water Tank Rountana,
Guindy, Chennai-600 032. ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records in C.C.No.1226 of 2020 now pending on the file
of the Hon'ble Chief Metropolitan Magistrate Court, Egmore, Chennai and
quash the same.
For Petitioner : Mr.P.T.Ramkumar
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
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CRL.O.P.No.6640 of 2020
ORDER
This petition has been filed to quash the proceedings in
C.C.No.1226 of 2020, on the file of the Chief Metropolitan Magistrate Court,
Egmore, Chennai, based on the complaint by the Deputy Director-I, Industrial
Safety and Health for the offences punishable under Sections 41 r/w. Rule 61 E
and 61 F of the Factories Act, 1948 and Amended Factories Act, 1987 and
Tamil Nadu Factories Rules, 1950, against the petitioner.
2. Heard both sides and perused the materials available on record.
3. The respondent filed a private complaint against the petitioner for the
alleged offences under Sections 41 r/w. Rule 61 E and 61 F of the Factories
Act, 1948 and Amended Factories Act, 1987 and Tamil Nadu Factories Rules,
1950.
4.1. On a perusal of the complaint lodged by the respondent, it revealed
that on 18.07.2018, when the Joint Director-I, Industrial Safety and Health
inspected Carriage and Wagon Works (Southern Railway), it was noticed that
the Manager has contravened the provisions of Section 41 r/w. Rule 61 E and
61 F of the Factories Act, 1948 and Amended Factories Act, 1987 and Tamil
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CRL.O.P.No.6640 of 2020
Nadu Factories Rules, 1950. On 28.05.2018, one Jayaprakash, Supervisor/IInd
line in-charge has deputed the employees, namely Mohan, Saravanan,
Ravikumarmeeena, Parameshwaran and Umashankar for floor assembly work
to repair Wagon No.WR10089814726. At 8.00 a.m, they first cleaned the
wagon and started the work. Five workers have fitted flooring sheet on the top
and welder one Parameshwaran had done welding work under the wagon till
10.15 a.m. and they had fitted five flooring sheets. Thereafter, six workers had
gone for tea and returned in 10 minutes and commenced the work again.
4.2. On noticing, tack welding was not done and the workers who were
on top had given voices, and since there was no response, one of the worker
namely Ravikumarmeena had come down to verify, where one welder
Parameshwaran was lying unconscious in sitting posture. After seeing that, the
co-workers had taken him to Perambur Railway Hospital in an ambulance. On
examining, the Doctors declared him as dead. Later Post-Mortem was done in
the Government Hospital, Kilpauk and the Post-Mortem report stated that it as
a death due to Electrocution. The alleged occurrence happened on 25.08.2018,
on which day the deceased employee was deputed to work.
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CRL.O.P.No.6640 of 2020
5. The learned counsel for the petitioner submitted that the Railway
Administration is fully aware of its responsibilities and accountabilities for the
safety of employees and all the safety precautions were taken and followed
scrupulously. After the incident, a show cause notice was issued to the
petitioner on 09.08.2018 and on receipt of the same, the petitioner had sent a
reply explanation dated 27.08.2018 and stated that, safety measures and proper
steps have been taken to protect the employees in the premises of carriage and
wagon work. The deceased employee was also provided with safety
equipments, such as Shoe, Leg Guard, Leather Gloves, Gas Masks and Shield
for Welding. However, without considering the explanation submitted by the
petitioner, the respondent had prepared an inspection report in a mechanical
manner. Consequent to the death of the employee, all welfare measures have
already been taken in accordance with Rules and Regulations of the Railway
Administration to assist his family.
6. Ex-gratia amount of Rs.25 lakhs had been paid to compensate the
family of deceased employee. Apart from that, as per the Workmen
Compensation Act, Rs.5,56,620/- (Rupees Five Lakhs Fifty Six Thousand Six
Hundred and Twenty only), PF Settlement of Rs.4,63,744/- (Rupees Four
Lakhs Sixty Three Thousand Seven Hundred and Forty Four only), Gratuity
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CRL.O.P.No.6640 of 2020
Rs.13,19,310/- (Rupees Thirteen Lakhs Nineteen Thousand Three Hundred
and Ten only), Leave Salary Rs.3,52,916/- (Three Lakhs Fifty Two Thousand
Nine Hundred and Sixteen only), Group Insurance Scheme Rs.52,459/- (Fifty
Two Thousand Four Hundred and Fifty Nine only), were sanctioned and for
Premature Death, Rs.50,000/- (Rupees Fifty Thousand only) and for Funeral
Advance, Rs.15,000/- (Rupees Fifteen Thousand only) had also been
sanctioned.
7. In fact, the Family Pension of Rs.21,715/- (Rupees Twenty One
Thousand Seven Hundred and Fifteen only) has also been sanctioned and it is
duly received by the wife of the deceased employee. Further, the elder
daughter of the deceased employee has also been appointed as Train Ticket
Examiner in the Southern Railway under compassionate grounds appointment.
Though the petitioner submitted his detailed explanation to the show cause
notice issued by the respondent, the same was not considered by the
respondent and complaint was filed mechanically without any discussion with
regard to the explanation submitted by the petitioner. After the explanation
submitted by the petitioner, since the respondent has no satisfaction with the
said explanation, a complaint was lodged, wherein, the respondent did not
even whisper about the explanation submitted by the petitioner on the
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CRL.O.P.No.6640 of 2020
complaint. Therefore, the petitioner cannot be held the responsible for the
offences under Sections 41 r/w. Rule 61 E and 61 F of the Factories Act, 1948
and Amended Factories Act, 1987 and Tamil Nadu Factories Rules, 1950.
8. That apart, the petitioner is a public servant who was appointed by the
Central Government and the present complaint has been filed against the
petitioner without obtaining valid sanction under Section 197 of Cr.P.C.
9. In support of his contentions, the learned counsel for the petitioner
relied upon the judgment of the Hon'ble Apex Court in the case of State of
Maharashtra Vs. Dr.Budhikota Subbarao, reported in (1993) 3 SCC 399
wherein it has been held as follows;-
...........6. Such being the nature of the provision the
question is how should the expression,'any offence alleged to
have been committed by him while acting or purporting to act
in the discharge of his official duty', be understood? What
does it mean? 'Official' according to dictionary means
pertaining to an office. And official act or official dutymeans
an act or duty done by an officer in his official capacity. In
S.B. Saha v. M.S. Kochar MANU/SC/0075/1979 :
1979CriLJ1367 , it was held,
The words 'any offence alleged to have
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CRL.O.P.No.6640 of 2020
been committed by him while acting or
purporting to act in the discharge of his official
duty' employed in Section 197(1) of the Code,
are capable of a narrow as well as a wide
interpretation. If these words are construed too
narrowly, the Section will be rendered
altogether sterile, for, Nit is no part of an
official duty to commit an offence, and never
can be'. In the wider sense, these words will take
under their umbrella every act constituting an
offence, committed in the course of the same
transaction in which the official duty is
performed or purports to be performed. The
right approach to the import of these words lies
between these two extremes. While on the one
hand, it is not every offence committed by a
public servant while engaged in the
performance of his official duty, which is
entitled to the protection of Section 197(1), an
act constituting an offence, directly and
reasonably connected with his official duty will
require sanction for prosecution under the said
provision.
Use of the expression, 'official duty' implies that act
or omission must have been done by the public servant in
course of his service and that it should have been in
discharge of his duty. The section does not extend its
protective cover to every act or omission done by a public
servant in service but restricts its scope of operation to only
those acts or omissions which are done by a public servant
in discharge of official duty. In P.Arulswami v. State of
Madras MANU/SC/0092/1966 : 1967CriL J665 this Court
after reviewing the authorities right from the days of
Federal Court any Privy Council held, It is not therefore
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CRL.O.P.No.6640 of 2020
every offence committed by a public servant that requires
sanction for prosecution under Section 197(1) of the
Criminal Procedure Code; nor even every act done by him
while he is actually engaged in the performance of his
official duties; but if the act complained of is directly
concerned with his official duties so that, if questioned, it
could be claimed to have been done by virtue of the office,
then sanction would be necessary. It is the quality of the act
that is important and if it falls within the scope and range
of his official duties the protection contemplated by Section
197 of the Criminal Procedure Code will be attracted. An
offence may be entirely unconnected with the official duty
as such or it may be committed within the scope of the
official duty. Where it is unconnected-with the official duty
there can be no protection. It is only when it is either within
the scope of the official duty or in excess of it that the
protection is claimable.
It has been widened further by extending protection to
even those acts or omissions which are done in purported
exercise of official duty. That is under the colour of office.
Official duty therefore implies that the act or omission must
have been done by the public servant in course of his service
and such act or omission must have been performed as part of
duty which further must have been official in nature. The section
has, thus, to be construed, strictly while determining its
applicability to any act or omission in course of service. Its
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CRL.O.P.No.6640 of 2020
operation has to be limited to those duties which are discharged
in course of duty. But once any act or omission has been found
to have been committed by a public servant in discharge of his
duty then it must be given liberal and wide construction, so far
its official nature is concerned: For instance a public servant is
not entitled to indulge in criminal activities. To that extent the
section has to be construed narrowly and in restricted manner.
But once it is established that act or omission was done by the
public servant while discharging his duty then the scope of its
being official should be construed so as to advance the objective
of the section in favour of the public servant. Otherwise the
entire purpose of affording protection to a public servant
without sanction shall stand frustrated. For instance a police
officer in discharge of duty may have to use force which may be
an offence for the prosecution of which the sanction may be
necessary.
But if the same officer commits an act in course of service
but not in discharge of his duty then the bar under Section 197
of the Code is not attracted. To what extent an act or omission
performed by a public servant in discharge of his duty can be
deemed to be official was explained by this Court in Baijnath v.
State of Madhya Pradesh MANU/SC/0081/1965 : 1966CriLJ179
thus, the offence alleged to have been committed by the accused
must have something to do, or must be related in some manner
with the discharge of official duty...there must be a reasonable
connection between the act and the discharge of official duty the
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CRL.O.P.No.6640 of 2020
act must bear such relation to the duty that the accused could
lay a reasonable claim, but not a pretended or fanciful claim,
that he did it in the course of the performance of his duty.
If on facts, therefore, it is prima facie found that the act
or omission for which the accused was charged had
reasonable connection with discharge of his duty then it must
be held to be official to which applicability of Section 197 of
the Code cannot be disputed.
7. On the law, thus, settled two questions arise for
consideration one if the offence for which the accused was
charged and of which cognizance was taken was committed by
him during the period he was in Naval service and if it be so
then whether the violations were in discharge of official duty
or they were beyond it. For this purpose it may be mentioned
that five charges were framed against the accused. First two
related to Section 3(1) and 3(1)(c).of the O.S. Act. Third and
fifth related to Sections 6(2)(a) and 5 of the O.S. Act and
fourth related to violation of Section 18(2) and 19 of A.E. Act.
In the very first charge after narrating the period when the
accused was employed and when he opted for voluntary
retirement it is stated that it was during the course of this
period that he was in communication with foreign agents,
within or without India and for purpose prejudicial to the
safety or interest of the State he obtained and collected top
secret and secret official documents. The High court and the
Trial Judge, both, found that it was clear that the documents
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CRL.O.P.No.6640 of 2020
which were seized from possession of the accused and were
subject matters of indictment were obtained by him when he
was in service prior to his retirement in 1987. Even the
reference to the documents in the charge because of which the
Government was of opinion that the accused had violated
provisions of O.S. Act are mentioned to have been procured by
the accused during course of his employment In view of these
averments, in the charge itself, it is very difficult to say that
the offence for which the accused had been charge-sheeted
were not committed when he was in service. In respect of
charge 2, the High Court found and in our opinion rightly that
the use of words, 'during the said time and place' related back
to what was stated in charge No. 1, namely, to the period when
the accused was in service. The High Court further found and
again in our opinion rightly, that ambiguity, if any, in charges
1 to 4 stood completely removed by charge No. 5 which left no
doubt that the intention and purpose of framing the charge
against the accused was to indict him for whatever he had
done during the period when he was employed in the Navy as
the alternative charge clearly states that during his deputation
between 1976 and 1987 with B.A.R.C. he had access to secret
documents which he communicated to the persons other than
those who were authorised to receive such information.
Charge No. 3 relied to retention of Identity Card during
service and charge No. 4 is in respect of taking out
information in form of books pertaining to atomic energy the
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CRL.O.P.No.6640 of 2020
information of which had been obtained illegally, obviously,
when the accused was in service. Therefore, the act or
omission which furnished foundation for indicating the
accused either under Q.S. Act or A.E. Act were related to the
period when he was in service. The narrow or the stricter test
to determine if the sanction for prosecuting the accused was
necessary was thus satisfied..............
10. Further, as per Sections 41 r/w., Rule 61 E and 61 F of the Factories
Act, 1948, the Act is applicable for all the factories, which belongs to the
Central Government or any State Government and it does not have any specific
provision providing any sanction to be secured for initiation of the proceedings
against a public servant under the Factories Act, 1948. It is also confirmed by
the Hon'ble Supreme Court of India in the above case.
11. Per contra, the learned Government Advocate (Crl. Side) appearing
for the respondent submitted that, now the issue has been clarified by the
Hon'ble Supreme Court of India in the case of Noorulla Khan Vs. Karnataka
State Pollution Control Board & Another, in Crl.A.No.599 of 2021, by
judgment dated 13.07.2021 arising under the provisions of Sections 43 and 44
of the Water (Prevention and Control of Pollution), Act, 1974. (in short “the
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CRL.O.P.No.6640 of 2020
water act”). The relevant portion of the said judgment reads as follows;-
....... What emerges from these decisions of this Court
is:
a. If the violation of the provisions of the
Water Act was at the hands of a Department, subject
to the satisfaction of the requirements under Section
48 of the Water Act, “the Head of the Department”
would be deemed to be guilty. This would of course
be subject to the defences which are available to him
to establish whether the offence in question was
committed without his knowledge or that he had
exercised all due diligence to prevent the commission
of such offence.
b. By virtue of the decision of this Court in
V.C. Chinnappa Goudar (Supra), because of
deeming fiction under Section 48 of the Water Act,
the protection under Section 197 of the Code would
not be available and the matter ought to be
considered de hors such protection.
c. If the concerned public servant happens to
be a Chief Officer or Commissioner of a Municipal
Council or Town Panchayat, he cannot strictly be
called “the Head of the Department of the
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CRL.O.P.No.6640 of 2020
Government”. Therefore, in terms of decision of this
Court in B. Heera Naik (Supra), the matter would
not come under Section 48 of the Water Act. But the
matter would come directly under Section 47 of the
Water Act. According to said decision, even in such
cases, the deeming fiction available under Section 47
of the Water Act would dis-entitle the public servant
from the protection under Section 197 of the Code.
d. If the offenders are other than public
servants or where the principal offenders are
corporate entities in private sectors, the question of
protection under Section 197 would not arise..........
12. In view of the above, the question of sanction as required under
Section 197 of Cr.P.C does not arise in this case.
13. Insofar as the explanation submitted by the petitioner to the show
cause notice issued by the respondent is concerned. The respondent, though
annexed the explanation by way of reply submitted by the petitioner as
Document No.9, there is no whisper about the explanation submitted by the
petitioner, and whether it is satisfactory or not and if satisfactory, to prosecute
the petitioner. However, in the counter affidavit, the respondent stated that the
show cause notice was issued to the petitioner on 09.08.2018 after getting
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CRL.O.P.No.6640 of 2020
sanction from the Deputy Director-I, Industrial Safety and Health, Chennai-
600 032. Since the reply/explanation received from the petitioner, was not
satisfactory, the prosecution proposal was sent to the Director of Industrial
Safety and Health, Chennai-32.
14. Therefore, admittedly there are no reasons stated to prosecute the
petitioner for being not satisfied with the explanation submitted by the
petitioner herein. In this regard, this Court held in the case of K.Mastan Rao,
Deputy Chief Engineer, Engineering Workshop, Southern Railway,
Arakkonam, Vellore Vs. The State Rep. by its Inspector of Factories, First
Cricle, Vellore, reported in (2014) 3 MLJ (Crl.) 523. and the relevant portion
of the aforesaid judgement is extracted hereunder;-
.....28. In terms of Rule 102 of the Tamil Nadu
Factory Rules, 1950, the Occupier, Owner or
Manager of a factory shall furnish information to an
inspector for the purpose of satisfying himself whether
any of the provisions of the Act have been complied
with or whether any order of the Inspector has been
carried out and any demand of such information, if
made during the course of an inspection, shall be
complied with forthwith or if made in writing, shall be
complied with within seven days of receipt thereof.
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Thus, the rule contemplates an opportunity for
compliance. If the respondent/complainant has
pointed out certain contraventions and if the
contraventions exist, the contravener is bound to
comply with within seven days. The case on hand is
slightly different in the sense that the petitioners have
submitted their explanations showing cause in respect
of the allegations made in the show cause notice. In
such circumstances, the respondent/complainant
cannot ignore the reply to the show cause notice and
proceed to lodge the complaint, as if he has not
received any reply.
29. As noticed above, there is no reference to
the reply submitted by the petitioner. The complaint
was signed by the respondent on 20.06.2012 and filed
before the Court on 21.06.2012, presumably not in
full form and appears to have been returned and re-
presented on 30.09.2013. In the interregnum, the
petitioner has been given the replies dated 16.04.2012
and 31.05.2012. That apart, the further explanations
dated 12.07.2012 and 28.09.2012, were submitted
much prior to the date on which, the complaint was
re-presented i.e., on 30.09.2013. There is no
explanation forth coming as to why the complaint
which was presented on 21.07.2012 was returned and
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as to why the complaint was re-presented after more
than one year. Therefore, this Court has no hesitation
to hold that the complaint is vitiated on account of
total non-application of mind. ........
15. In the case on hand also, as stated supra, there are no reasons in the
explanation submitted by the petitioner. Hence, this Court has no hesitation to
hold that the complaint lodged by the respondent is vitiated, on account of
non-application of mind. In view of the above, the impugned complaint is
nothing but clear abuse of process of law and no useful purpose would be
served by directing the petitioner to undergo the ordeal trial before the trial
Court.
16. That apart, as already discussed supra the deceased employee's
family was properly compensated and all the terminal benefits were duly paid
to them. In fact, the elder daughter of the deceased employee was given
employment as Train Ticket Examiner in Souther Railway under the
compassionates ground appointment.
17. In view of the above discussion, this Criminal Original Petition
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CRL.O.P.No.6640 of 2020
stands allowed and the proceedings in C.C.No.1226 of 2020, on the file of the
Chief Metropolitan Magistrate Court, Egmore, Chennai, is hereby quashed.
Consequently, connected miscellaneous petition is closed.
21.06.2022
Index : Yes / No
Speaking / Non Speaking order
ata/nti
To
1.Deputy Director-I,
Industrial Safety and Health,
T.S.No.47/1, Block No.6,
Thiru.Vi.Ka. Industries Estate,
Near Metro Water Tank Rountana,
Guindy, Chennai-600 032.
2. The Public Prosecutor
Madras High Court,
Chennai.
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CRL.O.P.No.6640 of 2020
G.K.ILANTHIRAIYAN, J.
ata/nti
CRL.O.P.No.6640 of 2020
and
Crl.M.P.No.3653 of 2020
21.06.2022
https://www.mhc.tn.gov.in/judis
