In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.358 of 2009
H. Dutta @ Hiramanya Dutta.............................. Petitioner
VERSUS
State of Jharkhand and another........... ....... Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr.A.R.Choudhary
For the State : Mr.Jalisur Rahman, J.C. to G.P.III
7. 8.1.10
. This writ application has been filed for quashing the entire
criminal proceeding of complaint case, bearing C-2 case no.4 of
2002 including the order dated 4.1.2002 passed by the Chief
Judicial Magistrate, Jamshedpur whereby and whereunder
cognizance of the offence was taken against the petitioner under
Section 92 of the Factories Act.
The facts giving rise this application are that for expansion
of the Jojobera cement plant, being run by M/s. Lafarge India
Limited, a cement manufacturing company registered under the
Factories Act in order to increase the production capacity of the
cement, a contractor, namely, M/s. Petron Civil Engineering Pvt.
Ltd., to which the petitioner as a Senior Manager, was assigned
with the job of civil construction whereas the other contractor,
namely, M/s. Hajee A.P.Bava and Company was assigned with the
job of erection of plant and equipments. In that course a cement
mill building was constructed by M/s. Petron Civil Engineering Pvt.
Ltd., where opening measuring 6′ x 3′ was left on each floor, i.e.
elevator floor, separator floor and bag filter floor, though those
spaces were required to be fenced or covered for the purpose of
safety. As the space had not been fenced or covered, one Pramod
Kumar Gupta, a worker, working under the contractor, namely,
M/s. Petron Civil Engineering Pvt. Ltd. when was going to Silo from
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the separator floor, fell down from a height of 21.5 meter and
died.
When the matter was informed to the Inspector of Factories,
Jamshedpur, Circle No.1, he made enquiry and came to the
conclusion that neither M/s. Lafarge India Limited nor the
contractor took any measure for covering or fencing the open
space, as a result of which Pramod Kumar Gupta, a worker fell
down and died. Thereupon a complaint was filed in the court of
Chief Judicial Magistrate, Jamshedpur which was registered as C-2
case no.4 of 2002, upon which cognizance of the offence has been
taken under Section 92 of the Factories Act.
Being aggrieved with the order taking cognizance, this writ
application has been filed by the petitioner, who is a Senior
Manager of M/s.Petron Civil Engineering Pvt. Ltd. for quashing the
entire criminal proceeding including the order taking cognizance.
Learned counsel appearing for the petitioner submitted that
the petitioner is a Senior Manager of M/s. Petron Civil Engineering
Pvt. Ltd. to which firm, job of extension of the building in the
factory premises of M/s. Lafarge India Limited had been assigned
where one worker, namely, Pramod Kumar Gupta died when he fell
down from a height but for that, the petitioner cannot be held to
be liable to be prosecuted as the petitioner cannot be said to be
occupier in terms of Section 2(n) of the Factories Act, nor can be
said to be a Manager of the factory and hence, the entire
prosecution under Section 92 of the Factories Act is misconceived
so far the petitioner is concerned.
In this respect, it was further submitted that even if the
worker, who died was an employee of the petitioner’s firm, who
was assigned with a job under a contract by M/s. Lafarge India
Limited in which premises accident took place, it is only the
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occupier and the manager of M/s. Lafarge India Limited would be
responsible to be proceeded with the prosecution, if the safety
measure required under the Act to be taken, had not been taken
on account of which allegedly the accident took place. Therefore,
the instant prosecution would be an abuse of process of law, so far
this petitioner is concerned and hence, it is fit to be set aside.
A counter affidavit has been filed on behalf of the Factory
Inspector wherein it has been stated that as the particular work
was assigned to the contractor, namely, M/s. Petron Civil
Engineering Pvt. Ltd. where on account of safety measures being
not taken, the accident took place, the petitioner can be said to
have had control over the work and as such, he is liable to be
prosecuted under Section 92 of the Factories Act.
Having heard learned counsel appearing for the parties,
admitted case appears to be that M/s. Lafarge India Limited in
order to expand its plant had given contract to M/s. Petron Civil
Engineering Pvt. Ltd for doing civil work whereas other contractor
was assigned with the job of fixation of machinery and equipments.
In course of the construction of a building, one of the workers,
namely, Pramod Kumar Gupta employed by the contactor’s firm,
namely, M/s. Petron Civil Engineering Pvt. Ltd. died after falling
from a height as safety measure had not been taken for covering
or fencing the space from where the deceased fell down. In that
event, the said Pramod Kumar Gupta would assume the status of
worker of the factory, namely, M/s. Lafarge India Limited where
the accident took place in term of Section 2(l) of the Factories Act
which defines the ‘worker’ as follows:
2(l) “worker” means a person [employed, directly
or by or through any agency (including a contractor)
with or without the knowledge of the principal
employer, whether for remuneration or not], in any
4manufacturing process or in cleaning any part of the
machinery or premises used for a manufacturing
process, or in any other kind of work incidental to, or
connected with the manufacturing process, or the
subject of the manufacturing process [but does not
include any member of the armed forces of the
Union];
As the said worker, namely, Pramod Kumar Gupta in course
of employment died after falling from a height from a space which
had been left uncovered/unfenced though under the provision of
Section 21 of the Factories Act should have been securely fenced or
covered, prosecution was launched not only against the occupier
and the manager of M/s. Lafarge India Limited but also against this
petitioner, who is a Senior Manager of a firm, namely, M/s. Petron
Civil Engineering Pvt. Ltd., who had been assigned with the job in
the premises of M/s.Lafarge India Limited. But the question would
be as to whether the petitioner can be prosecuted under Section 92
of the Factories Act which reads as follows:
92. General Penalty for offences – Save as is
otherwise expressly provided in this Act and subject
to the provisions of section 93, if in, or in respect of,
any factory there is any contravention of any of the
provisions of this Act or of any rules made thereunder
or of any order in writing given thereunder, the
occupier and manger of the factory shall each be
guilty of an offence and punishable with
imprisonment for a term which may extend to (two
years) or with fine which may extend to (one lakh
rupees) or with both, and if the contravention is
continued after conviction, with a further fine which
may extend to (one thousand rupees) for each day on
which the contravention is so continued.
The provision mentioned above clearly stipulates that for
contravention of any of the provision of this Act or Rule made
thereunder only the occupier and the manager of the factory shall
be guilty of an offence.
The occupier has been defined in Section 2 (n) of the
Factories Act which reads as follows:
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(n) “occupier” of a factory means the person who has
ultimate control over the affairs of the factory.
Provided that –
(i) in the case of a firm or other association of
individuals, any one of the individual partners or
members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors
shall be deemed to be the occupier;
(ii) in the case of a factory owned or controlled by the
Central Government or any State Government, or any
local authority, the person or persons appointed to
manage the affairs of the factory by the Central
Government, the State Government or the local
authority, as the case may be, shall be deemed to be
the occupier.
On going through the definition of occupier, the petitioner,
who is a Senior Manager of a firm, namely, M/s. Petron Civil
Engineering Pvt. Ltd. can never be said tobe an occupier of the
factory, i.e. M/s. Lafarge India Limited, still the petitioner is being
prosecuted as, according to the statement made in the counter
affidavit, the petitioner was in ultimate control of the ‘work’ but this
assumption would not bring the petitioner within the definition of
occupier as it speaks about the person, who has ultimate control
over the affairs of the factory and not the work. Admittedly, the
petitioner is not the person, who has ultimate control over the
affairs of the cement factory. Of course, a person other than
occupier of the factory can come within the definition of occupier in
terms of Section 93 of the Act, if any premises or building of the
factory is leased out to different occupiers for use as separate
factories as in that event, the owner of the premises shall be
responsible for maintenance of the common facilities and services
but that is not the situation here as it is never a case of the
prosecution that any building was leased out to the firm of the
petitioner for running a separate factory.
Thus, in the facts and circumstances as stated above, the
petitioner never comes within the ambit of Section 92 of the
Factories Act and, therefore, any prosecution under Section 92
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would be an abuse of the process of law. Hence, the entire criminal
proceeding of C-2 case no.4 of 2002, pending in the court of Sub-
divisional Judicial Magistrate, Jamshedpur including the order
taking cognizance is hereby quashed so far as the petitioner is
concerned.
In the result, this application is allowed.
(R.R.Prasad, J.)
ND/