IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1996 of 2009()
1. SMT.T.K.SAVITHRI, OCCUPIER,
... Petitioner
Vs
1. THE INSPECTOR OF FACTORIES AND BOILERS,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/02/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
CRL.M.C.No. 1996 OF 2009
===========================
Dated this the 16th day of February,2010
ORDER
Petitioner is the accused in C.C.198/2009
taken cognizance for the offence under section
92 of the Factories Act on Annexure I complaint
filed by the Inspector of Factories and
Boilers, Kozhikode under section 105(1) of
Factories Act. This petition is filed under
section 482 of the Code of Criminal Procedure
to quash Annexure I complaint as well as the
cognizance taken.
2. Learned counsel appearing for the
petitioner and learned Public Prosecutor were
heard.
3. The argument of the learned counsel is
that the allegations in Annexure I complaint is
that the licence issued to the petitioner to
run the factory M/s.Super Pencil Industries,
Crl.M.C.1996/2009 2
Feroke expired on 31.12.2006 and was not renewed
thereafter and therefore there is violation of
Rule 7 of Kerala Factories Rules, 1957 as
prescribed under section 6(d) of the Factories Act
and punishable under section 92 of the Factories
Act. It is also the case that by failing to
maintain first aid box equipped with the prescribed
contents as provided under Rule 89A of Kerala
Factories Rules, 1957, as provided under section
45(1) of Factories Act 1948, petitioner is liable
for punishment under section 92 of the Factories
Act. It is also contended that by failure to
provide and maintain adequate number of fire
extinguishers, petitioner violated the provisions
of sub section (1) of Section 38 of Factories Act
which is punishable under section 92 of the
Factories Act. The argument of the learned counsel
is that though petitioner did not file an
application for renewal of the licence, within the
statutory period sub rule (3) of Rule 7 enables
Crl.M.C.1996/2009 3
the petitioner to file an application for renewal
after expiry of the period of licence and as an
application for renewal was subsequently submitted
and it is even now pending, there is no violation
of Rule 7 and therefore prosecution for violation
of rule 7 is only an abuse of process of the
court. The argument of the learned counsel is
that proviso to sub rule (3) makes it absolutely
clear that an application for renewal could be
filed even after the period provided under sub rule
(2), by paying an additional fee of 25% and even
after expiry of the period of licence, an
application could be filed with an excess fee of
50% and as petitioner filed an application for
renewal, there cannot be a prosecution for
violation of Rule 7, as violation could only be if
petitioner did not apply for renewal of licence
and still run the factory without a valid licence.
Learned counsel also argued that if ultimately the
application for renewal is allowed, it would relate
Crl.M.C.1996/2009 4
back to 1.1.2007, in which case there cannot be a
violation of Rule 7 and on that ground also, the
prosecution for violation of Rule 7 is an abuse of
process of the court.
4. Learned counsel then argued that though it
is alleged that there is violation of Rule 89A of
the Kerala Factories Rules 1957, the complaint does
not disclose whether the failure is to maintain
first aid box with all the prescribed contents as
provided under the Rules or though first aid box
is maintained, it is without all the prescribed
contents and the material produced do not
establish what is the violation and hence
prosecution for violation of Rule 89A is also
unsustainable. Learned counsel then argued that
Annexure I complaint does not disclose whether the
failure of the petitioner is to provide any fire
extinguisher or adequate number of fire
extinguisher and if it is failure to maintain
adequate number of fire extinguisher, what was the
Crl.M.C.1996/2009 5
shortage, and hence learned Magistrate should not
have taken cognizance for violation of Section 38
(1) of the Factories Act.
5. Learned Public Prosecutor pointed out that
under sub rule (2) of Rule 7, an application for
renewal of licence is to be filed in the prescribed
form, not less than two months before the date on
which the licence expires and though the proviso to
sub rule (3) enables her to file an application
belatedly, the deeming provision under sub rule (2)
is not available in that case and if that be so,
as the licence expired on 31.12.2006 and when
petitioner did not file an application for renewal
even on 19.2.2009, when the complaint was filed,
there was violation of the provisions of Rule 7
and hence the complaint cannot be quashed. Learned
Public Prosecutor also argued that complaint makes
it absolutely clear that petitioner failed to
provide first aid box equipped with prescribed
contents and also maintain adequate number of fire
Crl.M.C.1996/2009 6
extinguishers and prosecution cannot be quashed as
sought for.
6. Rule 7 of the Factories Rules provides for
renewal of licence. Under sub -rule (1), a licence
is to be renewed by the competent authority. Under
sub- rule (2) an application for renewal of licence
is to be filed in the prescribed form in triplicate
and it shall be made to the competent authority.
The application shall be filed not less than two
months before the date on which the licence
expires. Sub-rule (2) further provides that if the
application is so made, the premises shall be held
to be duly licenced until such date as the
competent authority under sub rule (1) renews the
licence or till the competent authority intimates
the applicant in writing his refusal to renew
licence as the case may be. Sub- rule (3) provides
that the fee for renewal of a licence shall be the
same as that for grant of a licence. The proviso
to sub rule (3) provides that if the application
Crl.M.C.1996/2009 7
for renewal is not received by the competent
authority within the time specified in sub-rule
(2), the licence shall be renewed only on payment
of an additional fee. Under clause (i), if the
application is received before the expiry of the
licence, 25% of the fee ordinarily payable is to be
paid. Under clause (ii) if the application is
received after the expiry of the licence, 50% of
the fee ordinarily payable is to be paid. Second
proviso mandates that the State Government or
subject to the control of the State Government, the
Chief Inspector may waive the payment of additional
fee by a written order for valid reasons.
7. Sub-rule (4) provides for an application
for renewal of licence. Sub-rule (5) provides that
every licence renewed under the rule shall remain
in force upto 31st December of the years for which
the licence is renewed. The proviso to sub-rule
(5) makes it clear that the Chief Inspector or the
competent authority may renew the licence for more
Crl.M.C.1996/2009 8
than one year but not exceeding 5 years at a
stretch, if an application is so made along with
the chalan receipt towards the payment of the
required fee in lumpsum.
8. Sub-rule (2) of Rule 7 makes it clear that
an application for renewal shall be filed in the
prescribed form not less than two months before the
date on which the licence expires. The consequence
of such an application is also provided under sub
rule(2). It reads:-
“(2) Every application for the
renewal of licence shall be in
the prescribed Form No.2 in
triplicate, and shall be made
to the Competent Authority not
less than two months before the
date on which the licence
expires and if the application
is so made the premises shall
be held to be duly licenced
Crl.M.C.1996/2009 9
until such date as the
Competent Authority under sub-
rule (1) renews the licence or
till the Competent Authority
intimates the applicant in
writing his refusal to renew
the licence as the case may
be."
Though proviso to sub-rule (3) provides that an
application for renewal, if not received within
time provided under sub rule (2) the licence could
be renewed on payment of additional fee, it does
not provide that if an application for renewal is
made after the expiry of the period provided under
sub rule (2) the premises shall be held to be duly
licenced until a decision is taken in that
application, as is the case of an application filed
within the period as provided under sub-rule (2).
Therefore eventhough a licence which expired could
be renewed later, by filing an application for
Crl.M.C.1996/2009 10
renewal, the licensee cannot claim that there is a
deemed licence as provided under sub-rule (2). If
that be so, the argument of the learned counsel
appearing for the petitioner that in view of the
application subsequently filed on 28.5.2009, there
is no violation of Rule 7 of the Factories Rules
cannot be accepted. It is more so, when the
application for renewal was filed only on
28.5.2009 and the complaint was filed earlier
even the cognizance on Annexure I complaint was
taken on 24.2.2009. When cognizance was taken on
24.2.2009, there was no licence as the licence
expired on 31.12.2006. There was not even an
application for renewal of the licence. Therefore
the complaint or the cognizance taken cannot be
quashed on that ground.
9. The complaint makes it clear that
petitioner failed to maintain first aid box
equipped with the prescribed contents as provided
under Rule 89A of Factories Rules, 1957. The case
Crl.M.C.1996/2009 11
is not that petitioner maintained the first aid
box, but failed to provide the prescribed contents
in the first aid box. The allegation is that
petitioner failed to maintain first aid box
equipped with the prescribed contents. Therefore I
find no justifiable reason to quash the prosecution
for violation of Rule 89A also. Similar is the
case with the violation to maintain adequate number
of fire extinguishers as provided under section 38
(1) of the Factories Act. Therefore Annexure I
complaint or the cognizance taken cannot be quashed
as sought for by the petitioner.
10. Learned counsel then submitted that as
Annexure VI application is pending before the
competent authority, a direction be issued to
dispose the application without further delay. As
the application is pending from 27.5.2009, the
competent authority may dispose the application
expeditiously.
11. Learned counsel appearing for the
Crl.M.C.1996/2009 12
petitioner then submitted that petitioner is aged
about 68 years and her presence may not be insisted
for the purpose of trial and she be permitted to
appear through a counsel. It is up to the
petitioner to file an application, before the
Magistrate seeking permission to appear through a
counsel and to dispense with her presence as
provided under section 205 of Code of Criminal
Procedure. If an application is filed, learned
Magistrate to consider it and pass appropriate
orders in accordance with law. Petitioner is
entitled to take up all defence before the learned
Magistrate even based on the order to be passed in
the application for renewal.
Petition is disposed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006