Madras High Court
Mr.Satyam Choudhary vs Deputy Director on 8 April, 2025
Author: G.K. Ilanthiraiyan
Bench: G.K. Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08-04-2025
CORAM
THE HONOURABLE MR JUSTICE G.K. ILANTHIRAIYAN
CRL OP NO. 6418 of 2024
AND
CRL MP NO. 4732 OF 2024
Mr.Satyam Choudhary
S/o.Pooran Mal Choudary,
Director,
M/s.Instakart Services Private Limited(Grocery),
No.125, Orakkadu Village,
Thiruvallur District-600067
Petitioner(s)
Vs
Deputy Director
Industrial Safety and Health, Thiruvotriyur,
Chennai-600 019
Respondent(s)
PRAYER: Criminal Original Petition is filed under Section 482 of Cr.P.C.,
to call for the records pertaining to CC No.740 of 2023 pending on the file
of the learned Chief Judicial Magistrate, Thiruvallur and consequently
quash the same.
For Petitioner(s): Mr.B.Neelesh Sundaram for
M/s.Nathan and Associates
For Respondent(s): Mr.A.Gopinath, GA(Crl.side)
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ORDER
This Criminal Original Petition is filed under Section 482 of Cr.P.C.,
to call for the records pertaining to CC No.740 of 2023 pending on the file
of the learned Chief Judicial Magistrate, Thiruvallur and consequently
quash the same.
2.The respondent filed a complaint against the petitioner for the
offences punishable under Section 112, Section 61(1)(d)(9) and Section 62
of the Factories Act, 1948 (herein after referred to as ''the Act''). As per
Section 112 Rule 103 & Rule 77(4), ''the Manager of every factory shall
maintain a muster roll of all the workers employed in the factory in Form
no.25 and the entries shall be made at the commencement of each period of
work. When the petitioner's premise was inspected jointly by then Joint
Director of Industrial Safety and Health and Deputy Director of Industrial
Safety and Health, Thiruvottiyur, it was found that cold storage with
15,716.6 sq.feet area is used for storage and preservation of the food
products like butter, cheese, yogurt and chocolates etc., with a man power
of 282 workers and machineries. The petitioner failed to maintain muster
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roll of all the workers employed in the factory in Form no.25. Further, as
per Section 61(1)(d)(9) Rule 79, there shall be displayed and correctly
maintained in every factory in accordance with the provisions of sub-
section(2) of Section 108, a notice of periods during which adult workers
may be required to work. On inspection, it was found that the petitioner
failed to display in a conspicuous place both in English and Tamil about the
notice of periods of work for adults. Further, the petitioner also failed to
maintain a register of adult workers to be available to the Inspector at all
times during working hours, or when any work is being carried on in the
factory, showing the name of each adult worker in the factory, the nature of
his work, the group, if any, as contemplated under Section 62 Rule 80 of the
Factories Acts and Rules.
3.The learned counsel for the petitioner has raised the following
grounds to quash the complaint viz, (i) there was a delay in lodgement of
the complaint as contemplated under Section 106 of the Act; ii) the
petitioner was served with only one show cause notice for alleged
contraventions and without considering the reply filed by the petitioner, the
respondent filed the complaint.
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4.According to the petitioner, there is no cold storage, and the
petitioner is only maintaining a refrigerator for storage of perishables and
therefore, there is no manufacturing process for the purpose of bringing it
within the definition of 2(12) of the Act. In order to lodge a complaint,
there must be a prior sanction from a Superior Officer. Without obtaining
any prior sanction, the respondent initiated prosecution as against the
petitioner. Though the petitioner submitted categorical reply to the show
cause notice, the complaint does not even whisper about the explanation
submitted by the petitioner and as such the respondent mechanically lodged
a complaint and the same has been mechanically taken cognizance by the
trial Court, that too after a lapse of two years.
5.Per contra, the learned Government Advocate for the respondent
had filed a counter and submitted that due to Covid 19, there was a delay of
few days in lodgment of complaint. The said delay was already condoned by
the Hon'ble Supreme Court in the suo motu WP(Civil) No.3 of 2020 dated
23.03.2020, thereby extended the period of limitation. Section (2)(k)(VI) of
the Factories Act defines 'manufacturing process' as any process for making,
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altering, repairing, ornamenting, finishing, packing, etc., treating or
adapting any article or substance with a view to its use, sale, transport,
delivery, or disposal. Therefore, for the alleged contraventions, the
petitioner is liable to be punished under the Act.
6. Heard the learned counsel for the petitioner and the learned
Government Advocate appearing on behalf of the respondent and perused
the materials available on record.
7.Admittedly, the complaint was filed beyond the period of 3 months
from the date of show cause notice. It is relevant to extract the provision
under Section 106 of the Act, which reads as under:
“106. Limitation of prosecutions.—No Court shall take
cognizance of any offence punishable under this Act unless
complaint thereof is made within three months of the date on
which the alleged commission of the offence came to the
knowledge of an Inspector:
Provided that where the offence consists of disobeying
a written order made by an Inspector, complaint thereof may
be made within six months of the date on which the offence
is alleged to have been committed
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For the purposes of this section,— (a) in the case of a
continuing offence, the period of limitation shall be
computed with reference to every point of time during which
the offence continues; (b) where for the performance of any
act time is granted or extended on an application made by the
occupier or manager of a factory, the period of limitation
shall be computed from the date on which the time so granted
or extended expired.
8.Thus it is clear that no Court shall take cognizance of any offence
punishable under this Act unless complaint thereof is made within three
months of the date on which the alleged commission of the offence came to
the knowledge of the Inspector. It is mandatory on the part of the
respondent to lodge the complaint within three months from the date of
any such contravention alleged to have been committed by the petitioner.
Admittedly, the respondent and the other officers concerned made an
inspection of the petitioner's factory on 26.06.2021. In pursuant to the said
inspection, the petitioner was issued with a show cause notice on
14.07.2021 alleging irregularities in the occupational standards of the
Company. Therefore, the respondent had knowledge about the
contraventions as early as on 26.06.2021 since on the very same date, an
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inspection report was submitted and accordingly, the petitioner was issued
with a show cause notice dated 14.07.2021. Therefore, in compliance to
Section 106 of the Act, the respondent ought to have filed the complaint for
the alleged contraventions, within a period of 3 months from the date of
inspection, namely, on or before 26.09.2021. But the respondent filed the
complaint only on 01.10.2021. When the respondent was able to conduct
the inspection and issue show cause notice, the respondent cannot take
shelter under the order passed by the Hon'ble Supreme Court, to extend the
period of limitation. Therefore, the present complaint is hopelessly barred
by limitation under Section 106 of the Act.
9.Further, on receipt of the show cause notice, the petitioner
submitted a detailed reply on 26.06.2021. It was also duly received by the
respondent. However, before initiation of prosecution, the respondent did
not even whisper about the explanation submitted by the petitioner in the
complaint. In this regard, it is relevant to rely upon the judgment of a
Division Bench of this Court in the case of the “Inspector of Factories,
Vellore Vs. Showa Engineering Ltd, Sholinghur'' reported in 2007 (4)
L.L.N.828. The relevant portion is extracted herein under:
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''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
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''
10.The above cited judgment is squarely applicable to the case on
hand and as such the prosecution launched by the respondent beyond three
months period 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.
Further, on receipt of the show cause notice, the petitioner filed a reply on
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26.06.2021, but unfortunately, it was not even considered and discussed in
the complaint lodged by the respondent and it is settled that non-
consideration of the reply would provide occasion for filing an appeal under
Section 107 of the Act and any prosecution launched in denial of such right
would have to be nipped in the bud.
11.The learned counsel for the petitioner vehemently contended that
the petitioner's Company is not coming under the meaning of 'Factory' since
the petitioner company is not involved in any manufacturing of food
products like butter, cheese, yogurt and chocolates etc. The term “Factory”
has been defined under Section 2(m) of the Act which reads as follows:
“2(m) “factory” means any premises including the
precincts thereof— (i) whereon ten or more workers
are working, or were working on any day of the
preceding twelve months, and in any part of which a
manufacturing process is being carried on with the aid
of power, or is ordinarily so carried on, or (ii)
whereon twenty or more workers are working, or were
working on any day of the preceding twelve months,
and in any part of which a manufacturing process is
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being carried on without the aid of power, or is
ordinarily so carried on,— but does not include a
mine subject to the operation of the Mines Act, 1952
(35 of 1952)], or a mobile mobile unit belonging to
the armed forces of the Union, railway running shed
or a hotel, restaurant or eating place.
Explanation I—For computing the number of
workers for the purposes of this clause all the workers
in different groups and relays] in a day shall be taken
into account;
Explanation II.—For the purposes of this
clause, the mere fact that an Electronic Data
Processing Unit or a Computer Unit is installed in any
premises or part thereof, shall not be construed to
make it a factory if no manufacturing process is being
carried on in such premises or part thereof;”
12.Admittedly, the petitioner's Company is not engaged in the
business of manufacturing or processing of eatables. The petitioner's
premises is used only to store perishables since it is primarily a logistics
company which delivers groceries to the customers through e-commerce
application with the help of delivery partners. However, on inspection, the
respondent considered the petitioner's premises as a 'Factory' since the
petitioner's premises had 'cold storage facilities' and as such it requires
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registration as 'Factory' under the Act. On perusal of the reply submitted by
the petitioner, it is revealed that all the products are stored in the premises
of the petitioner by using a refrigerator and not a cold storage. Therefore,
there is no manufacturing process in respect of the products, which are kept
in the cold storage. Preservation of such special commodities is no way
connected with any manufacturing process. The premises of the petitioner's
Company cannot be treated as 'Factory' within the meaning of Section 2(m)
r/w Section 2(k)(6) of the Act and in view of the above, the question of
duties of the petitioner and the default of the same does not arise.
13.Therefore, the entire prosecution launched as against the petitioner
cannot be sustained and is liable to be quashed. Accordingly, this
Criminal Original Petition is allowed and the complaint in CC No.740 of
2023 pending on the file of the learned Chief Judicial Magistrate,
Thiruvallur is hereby quashed. Consequently, connected miscellaneous
petition is closed.
08.04.2025
dn
Index:yes/no
Neutral citation:yes/no
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G.K. ILANTHIRAIYAN.J.,
dn
To
The Chief Judicial Magistrate,
Tiruvallur
2.Deputy Director
Industrial Safety and Health, Thiruvotriyur,
Chennai-600 019
3.The Public Prosecutor,
High Court,
Madras
CRL OP NO. 6418 of 2024
AND
CRL MP NO. 4732 OF 2024
08.04.2025
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