Cases referred :
1992 Mah. L.J. 1279 [ 4 , 5 , 7 ]
Cri . App. No. 2693 to 2695/1987 [ 4 ]
1996(2) ALT 614 [ 4 ]
1974 Cr. L.J. 1330 [ 4 ]
1977(34) F.I.R. 354 [ 4 ]
(1996) 6 SCC 665 [ 6 , 7 ]
Advocates appeared :
Shri V.P. VASHI for petitioner.
Shri I.S. THAKUR, A.P.P. for State.
:- This application under section 482 of the Criminal Procedure Code is filed by the petitioner - accused, challenging the process issued against the petitioner in Criminal Case No.3410 of 1989 by the learned Judicial Magistrate, First Class, Court No.II, Thane for an offence punishable under the Factories Act.
2. The petitioner is the Managing Director of M/s. Modipon Ltd., a public limited company, registered under the Companies Act. The registered office of the company is at Modinagar, Gaziabad in U.P. It is submitted that the petitioner ordinarily residing in Delhi and in U.P. It is submitted that the petitioner ordinarily residing in Delhi and in U.P. It is further submitted that by resolution dated 22nd September, 1987. The company had nominated one Shri R. Swaroop, Works Manager of Indofil Chemicals Company, as an Occupier within the meaning of Factories Act and accordingly, he was acting as Occupier of the Factory. This fact was informed to the Inspector of Factories also and filed in Form No.3 by letter dated 5/6th October, 1987. It is submitted that by letter dated 20.9.89 being the return in Form No.27, the company has confirmed that Shri R. Swaroop was the Occupier (Exhibit A).
3. It is submitted by Mr. Vashi, learned counsel for the petitioner that on 3rd April, 1989, there was an accident in the plant of the factory in which Boiler Operator and two workmen of the contractor M/s. B.T. Engineers, were injured and they received accidental injuries while working in the plant. They were admitted in the hospital where they were treated. The company had paid for medical treatment and other expenses. It is submitted that in respect of this accident, the Factory Inspector issued show-cause notice dated 12th May, 1989 to the present applicant (Exhibit B). It was replied and pointed out that all medical expenses were defrayed by the company and the company explained how the accident accurred and that the company had taken all care and caution. However, it is submitted that the Factory Inspector filed a complaint on 30.6.90 in the Court in Judicial Magistrate, First Class, Thane for an offence punishable under section 7-A(i) read with Section 92 of the Factories Act, 1948 against the present petitioner and the petitioner was shown as accused in that complaint. It is submitted that the petitioner being the Managing Director of the company, held responsible for the offence instead of the Occupier i.e. Shri R.Swaroop. It is submitted that Respondent has denied to accept Shri R. Swaroop as Occupier of the factory within the meaning of Section 2(n) of the Factories Act. Section 2(n) to the extent relevant reads as under :-
(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;
(iii) 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.
4. It has been submitted that under the resolution (Annexure A) Shri R. Swaroop is the nominee of the factory and Occupier of the factory i.e. Modipon Ltd., situated at Thane and he ought to have been joined as Respondent-accused in the complaint. However, the Respondent-Factory Inspector herein was not in a mood to accept him as an Occupier of the factory and therefore, he insisted to prosecute the present petitioner and the learned Magistrate issued process against the present petitioner. In support of his arguments, Mr.Vashi relied on certain authorities as under :-
1. 1992 Mah. L.J. 1279
Kirloskar Pneumatic Co.Ltd.
V/s.
V.A.More & Ors.
2. Cri . Apppl. Nos.2693 to 2695/1987
K.H. Bhabha & Ors.
V/s.
The State of Maharashtra
3. 1996(2) ALT 614
Bhadrachalam Paper Boards Ltd.
V/s.
Union of India
4. 1974 Cr.L.J.1330
Supdt . and Remembrancer of Legal Affairs W.B.
V/s.
Madhablal Mehta & Ors.
5. 1977 (34) F.I.R. 354
Jyoti Switchgears Ltd.
V/s .
Chief Inspector of Factories
5. Mr.Vashi , learned counsel for the petitioner submitted that this court has in clear terms held in the case of Kirloskar Pneumatiic Co. Ltd. v/s. V.A. More & Ors. reported in 1992 Mh.L.J. 1279 as follows:-
In our judgment, the amended provisions of the factories act do not make any departure from the settled position prior to the amendment that the occupier need not necessarily be a Director of the Company.
6. Mr.Vashi , learned counsel for the petitioner has also pointed out the recent ruling of the Supreme Court in the case of J.K. Industries Ltd. and ors. v/s. Chief Inspector of Factories and Boilers and ors., reported in (1996) 6 S.C.C. 665, wherein the Supreme Court has observed as follows :-
Labour Law-Factories Act, 1948 Ss.2(n) proviso (ii) (as amended in 1987), 6(1)(a), 7, 7-A and 100(2) (omitted in 1987) - Occupier - Who can be nominated as, by a company owning the factory - Only one of its directors and none of its employees or officers, held, can be nominated as occupier of the factory by such a company - Hence, the direction of the Chief Inspector of Factories that an employee other than a director, even if nominated by the company as an occupier, could not file an application for renewal or grant of factory licence , held, valid Word person occurring in S.2(n) cannot in case of a company, firm or association, be interpreted to mean an individual - Legislative history of the 1987 amendment and SOR of the Amending Act of 1987 taken into consideration and mischief rule applied for interpreting the amended provision-Factories (Amendment) Act, 1987, SOR and Ss.2(iii), 4 and 38 - General Clauses Act, 1897, S.3(42) - Words and phrases - Person - Words and phrases - Ultimate, Ultimate control and immediate or day-to-day control - Interpretation of Statute Mischief Director of company Status, position and responsibilities of Interpretation of Statutes - Subsidiary rules - legal fiction - Interpretation of Statutes - External aids - Statement of objects and reasons.
7. It is submitted by Mr.Vashi that in the aforesaid recent judgment delivered by the Supreme Court, it is held that the Occupier must be the Director of the company. The said judgment has been considered by the different courts by expressing different views under the amended definition of Occupier and of the Act and made the position clear that the occupier must be the Director of the company. Mr.Vashi submitted that in the instant case, the incident occurred in 1989 and the judgment was delivered by this court in 1992. It was a good law that the occupier as the nominee of the company need not to be the Director. That was the law prevailed at the time of the incident and filing of the complaint and therefore, the present petitioner is entitled for the protection. I do find much force in the arguments of Mr.Vashi. The law laid down by this court in 1992 Mah.L.J.1279, in clear terms held that the occupier need not to be the Director. The interpretation and meaning given by the Supreme Court in the recent judgment in (1996) 6 S.C.C. 665 that occupier must be a director is a subsequent judgment. Therefore, the objection taken by the respondent by filing an affidavit-in-reply for not accepting other than the Director as an Occupier is an arrogant attitude of the respondent. The provisions under the Factories Act safeguard the interest of the worker and the responsibilities or the liability of anything wrong done by the company evolving on the responsible officer or the director of that company. The challenge of the petitioner is that the complainant has lodged complaint against not a proper person and therefore, the complaint required to be quashed and set aside. Obviously, at the time of complaint, petitioner was not the occupier within the mean of section 2(n) of the Act and one R. Swaroop was the Occupier and complaint ought to have been filed and his name was known to the factory inspector but they have not chosen to file complaint against him for the purpose of prosecuting under the Act. Otherwise, for all the other purposes, he was accepted as an Occupier as stated above.
8. Mr.Thakur , learned A.P.P. vehemently submitted that the effect of the aforesaid ruling of the Supreme Court that the controversial views of the different High Courts are now settled and the point raised in this application is squarely covered by the said ruling and therefore, the application deserves to be rejected. In view of my above observations, it is not possible for me to accept the submission of the learned A.P.P. Hence the same is rejected.
9. Having regard to the facts and circumstances of this case, this is a fit case where this court should exercise inherent power u/s.482 of the Criminal Procedure Code as it would be the misuse or abuse of process and miscarriage of justice will be carried out and the purpose of giving interest of justice.
10. In the result, this application is allowed. Rule is made absolute. Stay shall stands vacated.
Application allowed.