Madras High Court
Sathish Hebber. R vs The State on 23 June, 2023
Crl OP No. 17189 / 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.O.P.No.17189 of 2021
and Crl.M.P.Nos.9419 and 9420 of 2021
1. Sathish Hebber. R
Director – Operations
Global Calcium Private Limited
Unit – I, [KNG – 00058]
No. 126, SIPCOT Industrial Complex
Hosur Taluk, Krishnagiri District – 635 126.
...1st Petitioner/Accused
2. M. Naveen ...2nd Petitioner/Accused
Versus
The State
Rep. by Deputy Director,
Industrial Safety and Health
Hosur
Krishnagiri. ...Respondent/Complainant
https://www.mhc.tn.gov.in/judis
1/17
Crl OP No. 17189 / 2021
PRAYER : Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code seeking to call for the records and quash the
complaint dated 08.02.2021 in STC.No.120 of 2021 on the file of the
Hon'ble Chief Judicial Magistrate, Krishnagiri.
For Petitioners : M/s. Gupta and Ravi
For Respondent : Mr. A.Damodaran
Additional Public Prosecutor
ORDER
Criminal Original Petition has been filed for quashing the
impugned complaint in S.T.C.No.120 of 2021, filed for the alleged
contravention of the Provisions of the Factories Act, 1948,
(hereafter referred to as ''Factories Act'' for the sake of convenience) and
the Tamil Nadu Factories Rules, 1950, (hereafter referred to as
''Factories Rules'' for the sake of convenience) punishable under Sections
92 r/w 96 of the Factories Act, pending on the file of the learned Chief
Judicial Magistrate, Krishnagiri.
2. It is alleged in the complaint that an inspection was made on
07.09.2020 in the factory premises of the petitioners; that the reason for
the inspection was that on 05.09.2020 at about 10:30 AM, an employee
died due to a burning sensation in the skin caused by a chemical spillage;
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
that when the factory premises was inspected,
the respondent found seven violations under the Factories Rules; that a
Show Cause Notice was issued to the petitioners; and that the violations
are punishable under the Factories Act. Hence, the complaint.
3. (a) Mr. Ravi, the learned Senior Counsel for the petitioners,
submitted that in respect of the death of an employee, a First Information
Report was registered against the petitioners and others, and the same is
pending investigation; that the allegations in the impugned complaint are
with regard to the violations under the Factories Act, found during the
inspection on 07.09.2020.
3. (b) The learned Senior Counsel submitted that after the
inspection, the respondent had issued a Show Cause Notice on
22.09.2020 informing the petitioners about the violations and calling
upon them to Show Cause as to why the prosecution should not be
launched against them for the violation of the Factories Act and the
Factories Rules.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
3. (c) The learned Senior counsel for the petitioners further
submitted that the petitioners sent a detailed reply on 04.11.2020 to the
Show Cause Notice explaining their stand in respect of certain violations
and also stating that they had rectified the defects/violations pointed out
in the Show Cause Notice; and that they had attached the proof in the
form of photographs to substantiate their reply. However, without
considering the reply to the Show Cause Notice sent by the petitioners,
the impugned complaint was lodged on 08.02.2021. Since the respondent
had filed the impunged complaint without considering the reply, the
complaint is liable to be quashed in view of the settled position of law.
3. (d) The learned Senior Counsel relied upon the following
Judgments of this Court and that of the Karnataka High Court.
(i) C. Ramakrishna and others vs. The Chief
Inspector of Factories, Madras and others reported in
1982 – L.W. [Crl.] 146.
(ii) V.P.Ponnusami Vs. State reported in 1996 – 2
L.W. [Crl.] 493.
(iii) Inspector of Factories Vs. Showa
Engineering Ltd. Sholinghur reported in 2007 (4)
L.L.N. 828.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
(iv) K. Masthan Rao vs. State reported in 2015 –
1 – L.W. [Crl.] 254.
(v) A. Goutam Datta & Another Vs. State by
Inspector of Factories in Crl.O.P.Nos. 1287 to 1293 of
2012 dated 04.04.2017.
(vi) L. Ganesh and another vs. State of Tamil
Nadu in Crl.O.P.Nos. 23034 & 23035 of 2015 dated
19.08.2019.
(vii) P.P. Upadhya & Another Vs. The State of
Karnataka in Crl.O.P.No.2167 of 2014 dated
28.01.2020.
(viii) R.Kishore Kumar Vs. The Chief Inspector
of Factories, Chepauk and others reported in 2021-1-
L.W.[Crl.] 946.
(ix) Mr.Mohammed Azeez & Another Vs. State of
Karnataka in Crl.O.P.Nos.2570 & 2594 of 2021 dated
10.08.2021.
(x) Sri Sachin B Rathod & Another Vs. The State
of Karnataka in Crl.O.P.No.103875 of 2022 dated
02.12.2022.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
(xi) Ajay Sanghi Vs. State of Tamil Nadu in
Crl.O.P.No.7972 of 2022 dated 06.07.2022.
4. (a) Per Contra, Mr. A. Damodaran, the learned Additional
Public Prosecutor, submitted that the petitioners had violated the
Factories Act; that due to one of the violations, a chemical by the name
“Mebeverine Hydrochloride Acid’’ was splashed over the skin of the
deceased employee, who later succumbed due to that; and that they had
also committed the violations of Sections 41 r/w Rule 61 D, 61 E and
61 F of the Factories Act, and Factories Rules, Section 41 r/w Rule 62 -
O (1) (C) (i) (2) (4) of Factories Rules, 1950, Section 88 (1) Rule 96 (1)
(2) of the Factories Rules, 1950 and Section 6 of the Factories Act.
4. (b) The learned Additional Public Prosecutor submitted that a
learned Judge of this Court, in Manali Petrochemicals Limited Vs. The
Joint Director, Industrial Safety & Health in W.P.Nos.25810, 25815
and 25816 of 2019, held that since a prosecution under the Factories
Act, and the Factories Rules, need not be preceded by a Show Cause
Notice the non-consideration of reply to a notice sent would not render
the complaint unsustainable in law.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
4. (c) The learned Additional Public Prosecutor, also referred to the
Counter filed by the respondent, wherein the violations have been
reiterated. The learned Additional Public Prosecutor, therefore,
submitted that the impugned complaint, which discloses the offences
committed by the petitioners, cannot be quashed. Hence, he prayed for
the dismissal of the quash petition.
5. This Court, on perusal of the impugned complaint, finds that the
inspection was made pursuant to the death of an employee. The instant
complaint does not pertain to the negligence of the petitioners in causing
the death of the employee. This is the subject matter of an investigation
by the Jurisdictional Police. The instant complaint relates to violations
under the Factories Act and the Factories Rules, out of which, one
violation had allegedly caused the death of the employee. The violations,
according to the respondent broadly, are that a proper pipe was not fixed
to allow the outlet of the acid; that the roads, pathways and platforms in
the factory premises were not found to be safe; that the occupational
health centre was not available in the factory; that the migrant labourers
were employed without license etc.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
6. It is the admitted case of the respondent that they had issued a
Show Cause Notice on 22.09.2020. The respondent in their Counter has
not denied the receipt of the reply to the Show Cause Notice. In the
complaint, however, there is no reference either to the Show Cause Notice
issued to the petitioners or their reply, though, it is seen that the Show
Cause Notice and the reply are part of the list of documents filed along
with the complaint. Therefore, the question is whether the filing of the
complaint without considering the reply to the Show Cause notice is
sustainable. This Court had consistently taken the view that
non-consideration of the reply either at the time of granting sanction or at
the time of filing the complaint would render the complaint unsustainable.
7. In K.Masthan Rao Vs. State reported in 2015 – 1 – LWC (Crl.)
254, a learned Single Judge of this Court, Justice Mr.T.S.Sivagnanam as
His lordship then was had held as follows.
“27. As pointed out earlier, the form 3A
intimating notice of change of Deputy Chief
Engineer, minutes of the Canteen Advisory
Committee meeting, minutes of Safety
Committee meeting, the report of examination
of cranes, ropes, etc., building stability
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
certificate were all forwarded to the
respondent/complainant as well as the head of
department. Thereafter, on 28.09.2012, another
representation was made enclosing copy of the
building stability certificate issued by the
competent person and simultaneously
requesting the Chief Inspector of Factories to
nominate recognised persons for signing them
stability certificate. Despite all these factual
submissions, the complaints have been filed by
the respondent verbatim repeating the
allegations made in the show cause notice.
Surprisingly, there is no reference to the
explanations submitted by the petitioners and
as to how the petitioners have not complied with
the deficiencies pointed out, as to how the same
stand rectified and such other matters. In the
show cause notice dated 09.04.2012, it has been
stated that on 22.03.2012, an inspection was
conducted in the factory and the deficiencies,
which were noticed in the course of inspection,
were listed out as serial nos. 1 to 16 and the
petitioners were called upon to explain as to
why, prosecution should not be initiated against
them by giving them seven days time to submit
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
their explanation in writing, failure to avail the
opportunity would be considered that there is
no explanation to offer and without further
notice, action would be taken. Therefore, the
respondent/complainant being a statutory
authority having provided for an opportunity to
the petitioner to show cause ought to have
considered the correctness of the proprietary of
the explanations offered.
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. Thus, the rule contemplates an
opportunity for compliance. If the
respondent/complainant has pointed out certain
contraventions and if the contraventions exist,
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
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
represented 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 represented
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 as
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
to why the complaint was represented 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?.''
Following the aforesaid Judgment, two other learned Judges
Justice N.Anand Venkatesh and Justice N.Sathish Kumar of this Court in
L.Ganesh and another vs. The State of Tamil Nadu in
Crl.O.P.Nos.23034 & 23035 of 2015, dated 19.08.2019 and
Ajay Sanghi vs. State of Tamil Nadu Rep.by Deputy Director in
Crl.O.P.No.7972 of 2022 dated 06.07.2022, had held that the
non-consideration of the reply to the Show Casue Notice in the complaint
would render the complaint liable to be quashed.
8. Further, it is seen that a Division Bench of this Court in
Inspector of Factories, Vellore vs. Showa Engineering, Ltd.
Sholinghur reported in 2007 (4) L.L.N.828 had held as follows:
''2....Therefore, in view of not
considering the explanation submitted by the
Manager and the writ-petitioner, dated 8
January 2003 and 22 January 2003.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
respectively, launching the prosecution mainly
on the ground that they have to launch the
prosecution within a period of three months
from the date of knowledge of the accident is
illegal, contrary to the provisions of the
Factories Act and detrimental to the interest of
the petitioner as they have lost the right of
appeal provided under the statute and they
also have a right to seek time to comply with
the lapses pointed out during the inspection by
the Inspector and the limitation starts date
instead of 90 days from the date of knowledge
of the accident. Therefore, the order is set
aside''
Following the Judgment of the Division Bench of this Court, another
learned Single Judge of this Court, Justice C. T. Selvam, in
Crl.O.P.Nos 1287 to 1293 of 2012 dated 04.04.2017 had held as
follows:
''9. This Court is in respectful agreement
with the observations of the Division Bench of
this Court in Inspector of Factories, Vellore v.
Showa Engineering Ltd., Sholinghur [2007 (4)
LLN 828] which is to the effect that non-
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
acceptance of reply/explanation by a
factory/company would provide occasion for
filing an appeal u/s. 107 of the Factories Act,
1948. Any prosecution launched in denial of such
right would have to be nipped in the bud.''
9. It is pertinent to point out, based on the abovesaid
Division Bench Judgment, the Karnataka High Court in
P.P. Upadhya & Another Vs. The State of Karnataka in
Crl.O.P.No.2167 of 2014 dated 28.01.2020 and Mr.Mohammed Azeez
& Another Vs. State of Karnataka in Crl.O.P.Nos.2570 & 2594 of
2021 dated 10.08.2021 held that initiating the prosecution without
considering the reply would render the prosecution liable to be quashed.
10. However, this Court finds that Dr. Justice G. Jayachandran in
Manali Petrochemicals Limited Vs. The Joint Director, Industrial
Safety & Health in W.P.Nos.25810, 25815 and 25816 of 2019 dated
09.09.2022 had taken the view that there is no necessity for considering
the reply since the Factories Act does not contemplate sending of Show
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
Cause Notice prior to initiation of the complaint. In view of the consistent
view taken by the Division Bench of this Court and at least four learned
Judges of this Court besides the Karnataka High Court contrary to the
view taken by Honourable Dr. Justice G.Jayachandran, this Court is
inclined to follow the Judgments which reiterate the proposition that the
reply to the Show Cause notice has to be considered before filing the
complaint under the Factories Act. Since admittedly in the instant case,
the reply to the Show Cause Notice had not been considered, the
impugned complaint is liable to be quashed.
11. For the foregoing reasons, the Criminal Original Petition is
allowed. Consequently, the connected Miscellaneous Petitions are closed.
23.06.2023
dk
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1.The Deputy Director,
Industrial Safety and Health,
Hosur,
Krishnagiri.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
2. The Public Prosecutor,
High Court of Madras,
Chennai – 600 104.
https://www.mhc.tn.gov.in/judis
Crl OP No. 17189 / 2021
SUNDER MOHAN, J
dk
Crl.O.P.No.17189 of 2021
and Crl.M.P.Nos.9419 and 9420 of 2021
Dated: 23.06.2023
https://www.mhc.tn.gov.in/judis
