JUDGMENT
R.A. Sharma, J.
1. On March 14, 1991 in a fatal accident in Steel Melting Shop No. 3 of the factory belonging to the petitioners a worker Sagar Singh died. The Inspector of Factories (hereinafter referred to as the Inspector) on an enquiry found that the work in the factory was being done in an unsafe manner in contravention of the provisions of the Bihar Factories Rules. He prepared an enquiry report dated April 22, 1991 and sent it to the Managing Director and the General Manager of the petitioner-company (i.e. petitioner Nos. 2 and 3), who vide letter dated May 8, 1991 submitted their explanation and requested the Inspector for personal hearing if any further proceeding is to be taken in the matter. The Inspector vide his letter dated May 15, 1991 informed the petitioners that enquiry was held in presence of the petitioners’ representative and no further opportunity of hearing is required in such matter. On the basis of the said report a complaint was filed against the petitioners under Section 92 of the Factories Act (hereinafter referred to as the Act), pursuant to which a complaint case No. C-2-663/91 has been registered in the Court of Chief Judicial Magistrate, Jamshedpur.
2. The petitioner has filed this writ petition seeking quashing of the aforesaid letter of the Inspector dated May 15, 1991. Prayer for restraining the respondents from taking any action pursuant to the said enquiry report has also been made. There is also prayer for an order staying further proceeding in Complaint Case No. C-2-663/91 pending in the Court of Chief Judicial Magistrate, Jamshedpur. On May 30, 1991 this Court granted interim order in favour of the petitioners.
3. We have heard the learned counsel for the parties.
4. The submission of the learned counsel for the petitioners is that the enquiry could not have been conducted by the Inspector without giving full opportunity of being heard to the petitioners and his letter dated May 15, 1991 saying that no such opportunity is required under the law is, therefore, liable to be quashed. The submission is devoid of merit and has to be rejected for the following two reasons:
(i) Every occupier of the factory is required by the Act and the Rules framed thereunder to ensure health, safety and welfare of the workers while they are at work in the factory. Section 9 of the Act gives power to the Inspectors to enter any place, which is used as a factory in order to examine the premises, plant and machinery and inquire into any accident or dangerous occurrence. If the inspector is satisfied that the factory is being run in contravention of the Act and the Rules framed thereunder and/or the accident resulting in death of or bodily injury to the workmen had taken place on account of negligence or non- compliance of statutory provisions and orders issued thereunder, a complaint under Section 92 of the Act can be filed against the occupier/manager for their prosecution and punishment. The Inspector by his report does not decide any person’s right or obligation. The enquiry which he makes in connection with the accident is for his own satisfaction in order to find out as to whether a case for prosecution can be launched against the occupier (sic). Such an enquiry is not required to be conducted like a full-fledged departmental proceeding against an employee. The principles of natural justice are not attracted in such an enquiry. On a mere complaint filed under Section 92 of the Act occupier or the manager of the factory cannot be punished. The offence with regard to which the complaint is filed has to be pleaded and proved on the basis of the evidence produced before the concerned Court.
(ii) Even on facts, the petitioners’ grievance in this regard cannot be justified. In the instant case the enquiry was conducted by the Inspector in presence of the authorised representative of the petitioners in which the statements of some of the persons were also recorded. The enquiry was thus not an ex-parte enquiry. That apart, a copy of the enquiry report was sent by the Inspector to petitioner Nos. 2 and 3 so that they may have an opportunity to have their say in the matter. There was thus full compliance of the principles of natural justice.
(iii) The petitioners have prayed for quashing of the letter dated May 15, 1991, by which the Inspector informed them that further opportunity of hearing is not required in the matter. It is merely a letter written by the Inspector conveying what according to him was the correct legal position. There is no prayer made in the writ petition seeking quashing of complaint or the criminal proceeding, being C-2-663/91, pending in the Court of the Chief Judicial Magistrate. Although without seeking its quashing the prayer for interim relief staying the further proceeding in the said case has been made. The prayer made in the writ petition, which is contained in its Paragraph No. 14 is quoted below:
“It is, therefore, most respectfully prayed that in the interest of justice this Hon’ble Court may be graciously pleased to issue a writ of mandamus or a writ in the nature thereof or any other appropriate writ/order or direction quashing and setting aside the impugned order dated May 15, 1991 (Annexure 3) hereto;
and
Pending the hearing and disposal of the present petition stay the operation of the impugned order dated May 15, 1991
and
Restrain the Respondents from taking any action pursuant to the said report and the order dated April 22, 1991 or on the basis thereof including stay of further proceedings in C-2-663/91 pending in the Court of the Chief Judicial Magistrate at Jamshedpur.
and
Pass such other or further order or orders or such directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and to meet the ends of justice.”
In Paragraph No. 1 of the writ petition seeks from the Court, there is no prayer for quashing the complaint filed under Section 92 of the Act and the proceeding in case No. 92 of the Act and the proceeding in case No. C-2-663/91 initiated pursuant thereto. By quashing the letter of the Inspector dated May 15, 1991, the complaint case pending in the Court of Chief Judicial Magistrate will not be affected. Even if the said letter dated May 15, 1991 is quashed the petitioner cannot get any relief.
iv) That apart, even if it is presumed that the enquiry conducted by the Inspector was vitiated in any manner it will only be a case of an error in a proceeding antecedent to the trial. In H.N. Rishbud and Anr. v. State of Delhi, AIR 1955 SC 196, relevant extracts of which is reproduced below, the Supreme Court held that the police report on the basis of which cognizance under Section 190 Cr. P.C, is taken need not be a valid and legal report:-
“(9) The question that requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon …
……..
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to congnizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr. P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance ……”
“If, therefore, cognizance in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the case in Prabhu v. Emperor, AIR 1944 PC 73 (C) and Lumbhardar Zutshi v. The King; AIR 1950 PC 26 (D).
These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly also of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.”
The Apex Court further held that taking of cognizance on the basis of illegal report “is only in the nature of error in a proceeding antecedent to the trial” and to such situation, Section 537 Cr. P.C. (old) is attracted. The same Rule was reiterated in Dindayal Sharma v. State of U.P. AIR 1959 SC 831, Bai Radha v. State of Gujarat AIR 1970 SC 1396 and State of Himachal Pradesh v. Shri Pirthi Chand and Anr. AIR 1996 SC 977.
5. This Writ petition lacks merit and it is, accordingly, dismissed. No costs.
A.K. Prasad, J. – I agree.