State by Public Prosecutor vs Sivavadivel Udayar

K.N. Mudaliyar, J.—This is an appeal filed by the State against the judgment of the Additional First Class Magistrate, Mayuram acquitting

Sivavadivel Udayar, of the offences of contravening of S. 52, 45 (3) read with R. 63 (2) and S. 32(a) of the Factories Act, 1948 and the Madras

Factories Rules, 1950 read with S. 92 of the Factories Act, 1948.

Principally, the case rests on the testimony of P. W. 1, Inspector of Factories at Tiruvarur. According to him, the accused is running a rice mill in

R.S. No. 153/2, Nanaganallur. Admittedly, the factory in question comes within the scope and ambit of the Factories Act, 1948. On 2nd

November, 1969 he visited the rice mill premises and found it working. 2nd November, 1969 is Sunday. The accused was not present. The son of

the accused, one Ganapathy was present. 23 workers (men and women) were found working in the rice mill P. W. 1''s complaint is that the

accused did not intimate to him in writing that he was going to convert 2nd November, 1969 into a working day. His further grievance is that the

first aid box was not kept under the possession of the trained person under the certificate issued by St. John''s-Ambulance Association. He also

complained against the accused in that he has failed to provide hand rails for the steps of the paddy-soaking tub. The learned trial Magistrate in

paragraphs 8, 9 and 10 of his judgment, has dealt with the respective offences and acquitted the accused.

The learned Public Prosecutor argued that there was no intimation sent to P. W. 1 and therefore there is contravention of S. 52 of the Factories

Act. The first aid box was not kept in possession of D. W. 1 whose certificate is not granted by the St. John''s Ambulance Association for

rendering first aid, in accordance with the requirements of R. 63 (2) which is extracted below:

Persons who are in charge of first aid boxes shall be persons who possess the certificate granted by the St. John''s Ambulance Association for

rendering first aid Provided that the Chief Inspector may exempt any factory or class of factory from the provisions of this sub-rule, subject to such

conditions as he may impose on applications received from the Managers of factories.

The third argument of the learned Public Prosecutor is that the blue print of the rice Mill approved by the Chief Inspector does not clearly

indicate that the steps leading to the paddy soaking tub are provided with hand rails.

In regard to the first argument, I notice that the trial Magistrate has observed that the accused has stated that he had intimated the above fact to

P. W. 1. He further characterised that the testimony of D. W. 2 (accused) appeared to be natural. On 2nd November, 1969 at 11 A. M., P. W, 1

the Inspector found the 23 workers working in the rice mill. S. 52(1)(b)(i) requires the delivery of a notice at the Office of the Inspector of the

accused''s intention to require the worker to work on the said day. But, the delivery of the notice must be made before the said day, namely 2nd

November, 1969. D. W. 2 stated in his evidence that he has written to P. W. 1 about his grant of leave on the following day, namely, 3rd

November, 1969.

Regarding the contravention of S. 45(3) read with R. 63 (2), the learned Counsel for the accused Respondent argued that in the light of

evidence of D. W. 1 and in view of the reasoning of the trial Magistrate in paragraph 9 of his judgment, there is no ground to interfere with the

order of acquittal. There is a first aid box maintained inside the factory. According to D. W. 1 it was in his possession. He is the Nursing Orderly.

He has got a certificate, Ex. D. 2 and that he is in charge of the first aid box. He lives at a distance of 50 feet from the factory premises. In view of

the language of R. 63 (2) D. W. 1 is not in possession of a certificate granted by St. John''s Ambulance Association. But S. 41(3) reads as

follows:-

Each first aid box or cupboard shall be kept in the charge of a separate responsible person who is trained in first aid and who shall always be

readily available during the working of the factory.

In view of Sub-section (3) of S. 45,I do not think that D. W. 2 is not a competent person to be in charge of the first aid box. Sub-section (3) of

S. 45 cannot be overridden by R. 63 (2) of the Factories Rules. The testimony of D. W. 1 would abundantly make it clear that he is a responsible

person trained in first aid treatment, in view of Ex. D. 2 and that he was in charge of the first aid box and that he was also readily available during

the working hours of the factory. In my view, there is no contravention of S. 45(3) of the Act.

The learned Public Prosecutor criticised the acquittal of the accused u/s 32(a) of the Factories Act on the ground that the learned Magistrate

solely relied on Ex. D.3. D. Ex. 3 is a blue sketch of the rice mill which provides for and rail in regard to covering the steps leading to the paddy

soaking tub. Provision in the plan is one thing; but actual construction of the substantial hand rails is a different matter. But D. W. 2 in his evidence

has stated that the provision of hand rails was therefore the last 20 years.

The learned trial Magistrate chose to accept the testimony of D. W. 2 regarding the fact of having intimated to P. W. 1 under the first charge. I

am unable to find anything to show that his evidence is unworthy of belief. I accept the evidence of D. W. 2 when he stated the provision of hand

rails has been there for the last 20 years.

I find that the order of acquittal is correct I find no ground to interfere with the order of acquittal of the accused made by the Additional First

Class Magistrate, Mayuram. The appeal is dismissed.