JUDGMENT
Parikh, J.
1. This acquittal appeal by the State is directed against the Judgment of the learned Sessions Judge, Jamnagar, rendered on 11th August 1983 in Criminal Appeal No. 6A of 1982.
2. That Appeal was directed against the conviction of the respondents being the owner and the manager of the factory run in the name and style of “Jayant Extraction” in the town of Jamnagar, recorded by the learned J.M.F.C. Jamnagar on 22nd March 1982 in Criminal Case, bearing Nos. 2715 and 2716 of 1980. The two respondents are herein referred to as ‘the accused or accused persons’. They were sentenced to pay fine in the sum of Rs. 1,000/- each and in default to suffer simple imprisonment for a period of one month.
3. The facts of the case are really alarming. It is so happened that on 4th August 1980 two labourers viz., Pushparaj Arumukham and Natraj Kandshyama had to attend to the work of cleaning of the boiler located in the aforesaid factory, in the afternoon but they in fact at about 8-00 O’clock in the morning started attending to such work. Both of them did the drudging work of ash by means of shovels and thereafter they entered the room of boiler. They just went near the boiler fleu and they started drawing ash which had collected in the boiler fleu. That layer gave way and fell upon both the labourers. Natraj received burns on one of his hands and both his legs, whereas Pushparaj received burns on both of his hands, on his chest, waist and also on his legs. Pushparaj succumbed to his injury on 8th August 1980 at about 10-00 a.m. The factory was visited by the Inspector on 11th August 1980 and 30th August 1980. He came to know about the the incident in question and ultimately he had lodged complaint against both the accused by virtue of Section 36(5) of the Factories Act, 1948 (Act No. 63 of 1948) (hereinafter referred to as “the Act”).
4. The two complaints were filed against the aforesaid in the foregoing part of this judgment and both the complaints were tried together and disposed of by a common judgment by the learned trial Magistrate.
5. The fate of this acquittal Appeal rests upon the interpretation of Section 36(5) of the Act. The learned Sessions Judge, however, recorded a finding of fact to the effect that a contractor was in-charge of the boiler cleaning work and the two labourers were contractor’s workers. In fact the contractor was a prosecution witness who had stated that he had instructed the aforesaid labourers to go to the factory in the afternoon when the boiler would be cooled. Coupled with this there is an evidence to the effect that on the date of the accident the lower part of the boiler was definitely cool and it would not be known whether the upper part of the boiler was still hot. The Inspector-complainant did not make any grievance about the lack of safety arrangements and lack of required care on the part of the owner and the manager in restricting the entry either of the stranger or of the labourers into the boiler room at the odd hours. Under such circumstances the learned Sessions Judge came to the conclusion that the prosecution failed to bring home the guilt of the accused persons under Section 36(5) of the Act.
6. In this acquittal appeal it is the submission of Mr. M. A. Bukhari, learned A.P.P. for the State that when an accident of the nature indicated by the facts of the present case occurs in a boiler it should be presumed that there was an implied permission to the persons entering in the boiler room. According to this submission permission to enter into the boiler/boiler room should be inferred by the mere fact of the entry therein and then it would be for the accused persons to show by evidence that the entry was contrary to either express or implied permission on the part of the accused persons. He placed reliance upon a decision of this Court in the case of Manubhai D. Shah v. State of Gujarat, reported in (XIII) 1972 GLR 159.
7. For the purpose of appreciating the submission of Mr. M. A. Bukhari, it would be first necessary to reproduce some of the provisions of Section 36 of the Act. Sec 36 (1) reads as under :
“(1) In any factory, no person shall enter or be permitted to enter any chamber tank, vat, pit, pipe, flue or other confined space in which dangerous fumes are likely to be present to such an extent as to involve risk of persons being overcome thereby, unless it is provided with a manhole of adequate size or other effective means of egress.”
Sub-section (5) of Section 36 which restricts the entry particularly with reference to boiler furnace, boiler flue, chamber, tank, vat, pipe or other confined space, reads as under :
“(5) No person shall be permitted to enter in any factory any boiler furnace, boiler flue, chamber, tank, vat, pipe or other confined space for the purpose of working or making any examination therein until it has been sufficiently cooled by ventilation or otherwise to be safe for persons to enter.”
8. The learned Sessions Judge was required to consider the decision of the Honourable Supreme court in the case of Chinubhai Haridas v. State of Bombay reported in AIR 1960 SC 37. In that case the Court was concerned with a pit in the factory in which the dangerous fumes were likely to be present and it was securely covered as required by Section 33(1) of the Act, but something went wrong with the machinery inside the pit, and a labourer named Melia Dadla was asked to go down and to attend to it and he went down without wearing suitable breathing apparatus and a belt securely attached to a rope, the free end of which should have been held by a person, standing outside the confined space. The result was that Melia Dadla was soon overcame by poisonous gases and died. Consequently thereafter Fakirji Dhanjishaw, Maganlal Gordhandas, Chunilal Bechar and Chhotalal Nathabhai went down into the pit without wearing breathing apparatus and were overpowered with poisonous gases and died one after the other. In the background of such facts, the appellant was prosecuted as the occupier for the breach of Section 36(3) and (4) of the Act. The Supreme court dealing with the provisions contained in Section 36(3) of the Act held that the High Court by sending the matter for retiral to the Magistrate went too far with that saying that it was the duty of the employer to take all the precautionary measures for safeguarding the lives of his workers, prudent or imprudent, rash, or careful, against all possible danger while they are working on the premises of the factory. It was held that that would imply that there was an absolute duty cast on the employer to prevent the entry irrespective of the considerations that might arise on the fact and circumstances of the particular case. It was ruled –
“The true view of S. 36(3), in our opinion, is that the primary duty is cast on the worker or any other person prohibiting his entry into any such pit etc. At the same time the occupier is also liable if his permission to the entry, whether express or implied, can be inferred on the facts and circumstances of the case but this permission cannot in all cases be inferred by the mere fact of the entry.”
It was observed that the burden was on the prosecution to prove that the occupant or the manager had not taken all reasonable steps for preventing the entry and not on the occupier or the manager to prove that he had taken all the reasonable steps. The Court, would, therefore have to consider all the facts and circumstances in a particular case to see if the burden has been discharged by he prosecution. It was in this background that the meaning to be given to the words “be permitted to enter” appearing in Section 36(3) of the Act was required to be considered. In that light what was ruled by the Apex Court in the above case was as excerpted hereinabove.
9. The learned Sessions Judge placed reliance upon the aforesaid decision and on the facts of the case as appearing from the evidence he set aside the Judgment of conviction rendered by the learned trial Magistrate and directed the acquittal of the two accused.
10. Now if the interpretation as is sought by Mr. M. A. Bukhari, learned A.P.P. for the State is placed upon the provision contained in Section 36(5) of the Act, it would mean that no sooner the accident occurs the criminal responsibility would fasten upon the occupier and/or the manager of the factory in which a boiler is located. Bearing in mind what the Supreme Court has said with regard to sub-section (3) of Section 36, sub-section (5) quoted above should read. This is for the simple reason that the obligation cast under sub-section (5) is qualified by the words until it has become sufficiently cooled by ventilation or otherwise to be safe for persons to enter”. Before the presumption as is sought to be canvassed is drawn from the incident it is clear from the aforesaid words that the prosecution has to establish that the boiler was not sufficiently cooled by ventilation or otherwise so as to be safe for the persons to enter and that the authorised labourers were without instructions to enter into boiler roon on a specified points of time. In the present case, there is no material placed on record of the case to show that necessary instructions and/or safety measures were lacking in so far as occupier and/or the manager were concerned. Even the contractor has not said so. It is admitted that the workers who had met with the accident in question were specifically instructed to enter the boiler room in the after-noon and yet they violated such instruction and entered in the boiler room in the morning time. It is also admitted position that neither of the accused was present during the morning hours when the labourers violated the instructions of the contractor. Thus, it is apparent on the face of the record that there was not sufficient material for inferring that there was a permission to the entry into the boiler room, either express or implied, from the occupier and/or the manager of the factory during morning hours. Necessary facts or material so as to draw such an inference ought to have been placed by the Inspector complainant on the record of the case so as to hold them responsible for violation of Section 36(5) of the Act. The interpretation which has been placed upon Section 36(3) of the Act by the Apex Court as per the excerpted portion would also hold good in so far as Section 36(5) of the Act is concerned, by virtue of the qualifying words reproduced from sub-section (5) of Section 36 of the Act hereinabove.
11. The learned sessions Judge has, therefore, rightly distinguished the decision in the case of Manubhai D. Shah v. State of Gujarat, reported in (XIII) 1972 GLR 159 rendered by this Court interpreting the provision contained in Section 63 of the Act even with regard to which this Court observed in para 4 as under :
“It is sufficient if it is shown that the manager did not take sufficient steps to prevent the workers from working during the recess time.”
Even in this case the prosecution has not shown that the owner and/or the manager of the factory did not take sufficient steps to prevent the worker from entering into the boiler room at a particular point of time.
12. In view of the aforesaid position of law the decision of the learned Sessions Judge can hardly be faulted. However, bearing in mind the observations of the Supreme Court in the case of Chinubhai Haridas (supra) it becomes necessary for this court to observe as under, in respect of Section 36(5) of the Act :
(i) The Inspector under the Act should work out the risk and/or danger factors with regard to the timing when the person may or may not enter into a boiler room bearing in mind the cooling process of every part of the boiler.
(ii) The owner and/or manager of the factory wherein boiler(s) is/are located should take such care as would restrict the entry of a worker or a person into a boiler room by displaying the appropriate notice regarding restrictive timings, outside the boiler room after consulting the Inspector in this respect.
(iii) It should be borne in mind both by the Inspector and the owner and/or the manager of a factory that the carelessness, indolence, inadvertence or even disobedience of the workman are things which might result in ill-fated accidents and the occupier/manager of the factory should, therefore, provide against such things.
(iv) Whenever an accident with regard to a boiler room/boiler occurs the concerned Inspector should inquire into the matter bearing in mind all the factors – including the provisions made or measures for safety taken by the owner/occupier/manager of the factory.
13. With the aforesaid observations the Appeal is dismissed. It is hereby directed that a copy of this judgment shall be sent to the concerned Secretary of Labour & Employment Department, Sachivalaya, Gandhinagar, so that necessary action is taken to earmark the required safeguards against the possible accident that might occur with regard to cleaning operations that are required to be carried out in the boilers.