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Judgment
S. Ashok Kumar, J.—Criminal Appeal No. 951 of 1999 is directed against the judgment and conviction of the accused for the offence u/s
41, Rule 61(E), (F), (O) and (N) read with Section 92 of the Factories Act and sentence imposed to pay a fine of Rs. 40,000/=.
Criminal Appeal No : 1008 of 1999 is directed against the conviction of the accused by the same Judge u/s 41, Rule 6(1), 3(5)(A) and Section
87 Rule 95 Schedule 31, Item 6 of the Factories Act. Though the appellant has been held guilty for the above alleged offences of the Factories
Act, he has been acquitted for the reason that in the connection C.C. No. 45 of 1995, he has been convicted and following the ruling of this Court
in 1997 (2) MWN 87 that only one sentence is enough for two violations under the Factories Act. However, as against the findings of conviction,
this Criminal Appeal is filed by the accused/appellant.
The brief facts of the case are as follows:
(a) On 12.10.1994 at 12.15 p.m., in the factory of the accused, the deceased-employee A. Senthilkmar aged 19 years was operating the Agitator
Motor for mixing the rubber component with toluene. While the motor was in running condition, toluene with rubber solution splashed on his body
and surroundings including the lever type electrical starter switch box, because of the over capacity and also due to not closing of the lid of the
rubber solution vessel of the agitator machine there was a flame all around. On hearing the sounds from the workers, working in the ground floor of
the factory, the deceased went to switch off the lever type electrical starter switch box of the agitator machine which is located at 8 feet
approximately away from the agitator motor, and by that time electrical spark was produced in which he caught fire all over his body. He was
admitted in the Tamilnadu Hospital with more than 90% burn injuries on 12.10.1994.
(b) On receipt of information from the said Hospital on 12.10.1994 at 5.30 pm., a statement was obtained from the injured and recorded in the
G.D. Register. The injured died due to severe burn injuries on 14.10.1994 at 4.45 a.m., On receipt of death intimation a case was registered by
the Thorappakkam Police in Crime No. 2034 of 1994 u/s 174 Cr.P.C., Thereafter a final report was filed u/s 304(A) IPC and no one was
mentioned as accused.
(c) P.W.1, who is the Assistant Inspector of Factories of Circle-6 on receipt of a telegram on 14.10.1994 Ex.P.2 and Ex.P.3, Accident Report in
form No. 18 on 17.10.1994 visited the place of occurrence on 18.10.1994 at 10.00 a.m., along with the Inspector of Factories. They fond that
because of the non provision of flame proof agitator motor and starter switch box the fire accident occurred and thus the accused has contravened
the provisions of the Factories Act, 1948 and rules and thereby liable for punishment u/s 92 of the said Act. The also found that the accused has
contravened Section 6(1) Rule 3(5)(a) of the said Act by not getting the plans approved by the Inspector of Factories. The accused also violated
Section 87 Rule 95 Schedule XXXI item 6 by not taking measures to exclude the source of ignition from the highly inflammable materials. They
also obtained statements from the co workers, which are Exs.P4 and P.5. After pointing out the defects in the factory, they advised the accused to
get sanction of plan. Thereafter P.W.1 prepared a detailed report Ex.P.11 and sent the same to the higher authorities. Again they visited the
factory on 7.12.1994 and found that the defects have not been rectified. They also found that no fire proof materials have been provided to the
deceased at the time of accident. When questioned, the accused has simply stated that it is not necessary for him to give such fire proof equipment
to the workers employed under him.
(d) After Ex.P.11, inspection report a notice was issued to the accused under Ex.P.10 asking for explanation with 10 days. The accused sent
Exs.P.14 and P.15 letters. The accused also gave an undertaking Ex.P.16 to rectify the defects expeditiously. The Inspector of Factories had not
given permission for the factory plan and therefore, P.W.1 issued Ex.P.17 letter directing the accused to get a plan approval, which was
acknowledged by the accused under Ex.P.18. But no plan was submitted by the accused. The accused has not provided flame proof equipments
at the place where the motor and switch board were installed. The accused has not fitted the interlock system so that the motor would run only
when the lid is in closed position. He has also not provided the overload relay system so that when the mixer is overloaded the power load to the
agitator motor will automatically trip off. Not satisfied with the reply of the accused and failure to rectify the defects, P.W.1 sought permission of
the Chief Inspector of Factories under Ex.P.19 and after obtaining sanction under Ex.P.20, the accused was prosecuted by filing a complaint
before the Chief Judicial Magistrate, Chengalpattu.
(e) Before the learned Additional Sessions Judge, Chengalpattu, on behalf of the prosecution P.Ws 1, 2 namely, the Assistant Inspector of
Factories and the Head Constable of Thorappakkam Police Station were examined and Exs.P.1 to P.23 were marked. On behalf of the accused
D.W.s 1 to 4 were examined examined and Exs.D.1 and D.2 were marked. The oral and documentary evidence recorded in C.C. No. 45 of
1995 was adopted as evidence in C.C. No. 46 of 1995 as well since the occurrence was one and the same in both the cases. When the accused
was questioned u/s 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses the accused
denied the same as not correct and also stated that it is a false case foisted against him.
(f) On a consideration of the oral and documentary evidence, the learned Principal Sessions Judge came to the conclusion that the offences alleged
against the accused have been proved and convicted the accused as stated supra. Aggrieved over the same, the present appeals have been
preferred by the complainant.
Mr. Perumbulavil Radhakrishnan, learned Counsel appearing for the appellant/accused would contend that P.W.1, Assistant Inspector of
Factories, is not the person designated u/s 8(1) of the Factories Act 1948 to inspect the factory and to file prosecution. According to him u/s 8(1)
of the Factories Act, only the Inspector of Factories is authorised to file prosecution for offences mentioned in this case. Section 8(1) of the
Factories Act, 1948 read as follows:
8.Inspectors-(1) The State Government may, by notification in the Official Gazette, appoint such persons as possess the prescribed qualification to
be Inspectors for the purposes of this Act and may assign to them such local limits as it may think fit.
Section 8(1) of the Act, enables the State Government to confer authority to the Inspectors appointed for the purpose of the Act of the assigned
local limits. The contention of the learned Counsel for the appellant is that u/s 9A of the Act, the Assistant Inspector of Factories can enter along
with the Inspector of Factories for the purpose of inspection and they do not have the power to initiate prosecution. The learned Counsel also
contended that the Government cannot delegate the powers of the Inspector of Factories to the Assistant Inspector of Factories by executive
orders.
Per contra, Mr. N. Kumanan, learned Government Advocate contended that by G.O.Ms. No : 16, Labour and Employment (M2), dated
5.2.1993 which reads as follows:
No. 11(2)/LE/1232/93- In exercise of the powers conferred by Sub-section (1) of Section 8 of the Factories Act, 1948 (Central Act LXIII of
1948) and in supersession of the Labour and Employment Department Notification No. 11(2)/LE/2149/89, dated the 14th March 1989,
published at pages 295-298, of Part II Section 2 of the T.N. Government Gazette, dated the 12th April 1989, as subsequently amended, the
Governor of Tamil Nadu hereby appoints the persons specified in Column (1) of the Schedule below to be Inspectors for the purpose of the said
Act and assigns the local limits to each of them within which such persons shall exercise the powers of the Inspectors under the said Act as
specified in the corresponding entries in Column (2) thereof:
SCHEDULE
PERSONS LOCAL LIMITS
(1) (2)
1xx xx
2xx xx
3xx xx
4xx xx
Inspector of Factories, V. Circle, Madras and Assistant Inspector of Factories, VI and VII Circles, Madras.
Villivakkam, Panchayat Union exclusive of Ambattur Township, Oragadam, Puthagaram Town Panchayats of Saidapet Taluk of Chengalpattu
District.
Sriperumpudur, Tiruttani, Pallipattu, Tiruvelore and Uthukottai Taluks of Chengalpattu District-Madras City Corporation Divisions 93 to 145, 149
and 150.
The above said G.O. has got two limbs. The first limp is that the Government has appointed under Column-I of the Schedule the persons to be
the Inspectors for the purpose of the Act ie., the Inspector of Factories and the Assistant Inspector of Factories. The second limp is that it
assigned the local limits for each of the Inspector/Assistant Inspector of Factories within such jurisdiction the powers under the said Act have to be
enforced.
Learned Counsel for the appellant contends that the Government has no power to delegate the powers of the Inspector of Factories to the
Assistant Inspector of Factories. The above said Government Order would show that throughout Tamil Nadu Assistant Inspector of Factories
have been conferred with the powers of Inspector of Factories for certain local limits under their control, because among various other reasons.
The main reason is that it is impossible for the Inspector of Factories of a particular local limit alone to visit all the Factories within his jurisdiction,
because the jurisdiction is very wide. For example, as per this Government Order, the 6th Circle consist of all other areas of Saidapet Taluk
exclusive of Madhavaram Panchayat Union area, Tiruvottiur Municipality, Ambattur Township, Villivakkam Panchayat Union area of Chengalpattu
MGR District, Kancheepuram, Madhuranthakam, Uthiramerur and Chengalpattu Taluks of Chengalpattu MGR District Madras City Corporation
Divisions 146 to 148. Within this jurisdiction there are thousands of factories are situated. The Inspector of Factories alone cannot physically visit
and inspect all the factories within a reasonable time. Further one person alone cannot attend all the courts by filing prosecutions and give evidence.
Considering the wide jurisdiction and enormous number of factories in certain limits, the State Government has delegated the powers of the
Inspector of Factories to the Assistant Inspector of Factories to inspect the factories independently and also to initiate prosecution against the
offenders of the Factories Act and Rules. Therefore the first contention raised by the learned Counsel for the appellant that the Assistant Inspector
of Factories are not empowered with the power to prosecute the offenders under the Factories Act and Rules is not sustainable.
The next contention of the learned Counsel for the appellant is that as far as Crime No. 2034 of 1994 is concerned, there is no evidence that the
Inspector of Police, Thorappakkam Police Station, conducted any investigation and only the FIR has been filed before the Court and marked as
Ex.P.23. The reason for the accident and consequent injuries on the deceased A.Senthilkumar were enquired into by P.W.1, Assistant Inspector
of Factories, who investigated the matter. The Assistant Inspector of Factories, P.W.1 found out several defects in the factory. Even after giving an
undertaking to rectify the defects the accused has not rectified the defects when P.W.1 again visited the factory and therefore she has lodged the
prosecution after getting permission of the Chief Inspector of Factories. Therefore, the Inspector of Police has no role to play in this matter and
hence non examination of the Inspector of Police has no bearing on this case. Therefore, this ground raised by the learned Counsel for the
appellant is also not sustainable.
In the above circumstances, I do not find any merit in these appeals. Accordingly, both the Criminal Appeals are dismissed.