IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3265/2015 BETWEEN:
1. Mr. Mallikarjuna, Aged 32 years, S/o. Sri. Venkatarayappa, H.R. Manager, M/s. Global Garments – I, R/at No.62, 4th Cross, Kirloskar Colony, Basaveshwaranagara, Bengaluru.
2. Sri. Vinod Kumar, Aged 39 years, S/o. Sahayanathan, Factory Manager, M/s. Global Garments – I, R/at No.152, 4th Block, Near Byrappa Garden, Ramachandrapura, Jalahalli Post, Bengaluru – 560 013. ... Petitioners (By Sri. Joseph Kanikaraj, Advocate) AND:
1. State of Karnataka, Through RMC Yard Police Station, By Station House Officer, Bengaluru.
Represented by Senior Public Prosecutor, Attached to High Court of Karnataka, Bengaluru – 560 001.
2. Sri. Arase Gowda D.E., Aged Major, S/o. Eeregowda, No.123/A, 1st Main, Krishnanandanagar, Nandini Layout, Bengaluru – 560 096. … Respondents (By Sri. Vijaya Kumar Majage, Addl. SPP for R1; Sri. Harish A.S., Advocate for R2 – absent) This Criminal Petition is filed u/s.482 of Cr.P.C praying to quash the orders dated 05.11.2014 passed by the IX A.C.M.M., Bengaluru in C.C.No.29050/2014 taking cognizance of the offence p/u/s 338 of IPC and issuing summons to the petitioners and to quash the proceedings in C.C.No.29050/2014 pending on the file of IX A.C.M.M., Bengaluru and discharge the petitioners herein.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R A charge sheet is laid against the petitioners for the offence punishable under Section 338 of IPC.
2. Petitioner No.1 was the HR Manager and petitioner No.2 was the Factory Manager of M/s. Global Garments – I situated at Yeshwanthpura, Bengaluru.
3. On 11.09.2013, respondent No.2 who was then working in the Dispatch Section of the factory, was moving certain garment pieces from the 2nd floor in a trolley. When the lift reached the 1st floor, the lift suddenly started moving down fast because of worn off teeth in the pinion in the gearbox of the said lift, as a result the lift fell in the basement floor from a height of 20 feet. Due to the impact, respondent No.2 sustained injuries on both his legs. Since the accident had taken place in the factory premises, the Assistant Director of Factories filed a complaint under Section 200 Cr.P.C. seeking prosecution of the Occupier-cum-Manager for the alleged violations punishable under Section 92 of the Factories Act, 1948.
4. It is not in dispute that the said complaint was registered in C.C.No.2535/2014. The Occupier-cum-
Manager pleaded guilty and was convicted for the contravention of Rule 83 of the Factories Rules, 1969 and Section 7(A)(1) of the Factories Rules, 1948, punishable under Section 92 of the Factories Act, 1948 and acting under Section 252 of Cr.P.C. he was sentenced to suffer one day imprisonment till rising of the Court and a fine of Rs.30,000/- for the contravention of Rule 83 of Factories Rules, 1969 and Rs.5,000/- for contravention of Section 7A(1) of Factories Act, 1948. Out of the fine amount of Rs.35,000/-, a sum of Rs.25,000/- was directed to be paid as compensation to the victim Sri. Arase Gowda D.E./respondent No.2. The certified copy of the order passed in C.C.No.2535/2014 is produced by the learned counsel for the petitioners and the same is placed on record. That being the case, respondent No.2 filed a separate complaint before the RMC Yard police on 11.09.2013, based on which Crime No.190/2013 was registered against the Company Owner, HR Manager and Company Manager, under Section 337 r/w 34 of IPC.
After investigation, charge sheet is laid against the petitioners under Section 338 of IPC.
5. Learned counsel for the petitioners’ placing reliance on the order passed by this Court in Crl.P.No.6042/2014 dated 10.11.2014 submitted that the alleged incident having taken place in the factory premises, primarily the Occupier of the factory is liable for the violations of the Factories Act as well as for the alleged negligence in the maintenance of the equipments in the factory premises. The occupier-cum-Manager having already been convicted for the alleged offence, petitioners herein cannot be prosecuted for the same offence on the same set of evidence. Further, the petitioners herein were not responsible for maintenance of the lift. Petitioner No.1 was the HR Manager and petitioner No.2 was the Factory Manager. There are no allegations whatsoever in the complaint or in the charge sheet that at any relevant point of time, on account of negligence of the petitioners, the alleged incident had taken place. Under the said circumstances, prosecution of the petitioners is wholly without jurisdiction and the material on record also does not justify the prosecution of the petitioners for the alleged offence.
6. The learned Addl. SPP does not dispute the fact that the occupier of the factory premises is already convicted by the competent court. However, he contends that petitioner No.2 being the factory manager is vicariously liable for the alleged act which has resulted in physical injury to the workman.
7. On going through the charge sheet, it is noticed that the case of the prosecution as spelt out therein that the lift in question was old and that it was not being maintained properly, as a result, on 11.09.2013, one of the workman of the Factory namely CW1 (Respondent No.2) sustained injuries. Thus, it is clear that the alleged mishap took place due to non- maintenance of the lift. But from the charge sheet, it cannot be gathered as to who was responsible for the maintenance of the lift in the Factory premises.
8. Under Section 7A of the Factories Act, 1948 the primary responsibility of maintenance of the place of work, is essentially on the occupier of the factory.
Section 7A reads as under:
7A.General duties of the occupier.-
(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include-
(a) the provision and maintenance of plant and systems of work in the factory that are safe and without risks to health;
(b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work;
(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;
(e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.
(3) Except in such cases as may be prescribed, every occupier shall prepare and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organization and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.”
9. Reading of this provision, makes it clear that only the occupier could be made liable for the untoward incidents or any accidents that take place in the factory premises either on account of failure of maintenance of the place of work or failure to monitor the working environment in the factory or ensuring the safety of the workman.
10. Learned Additional SPP has placed reliance on Section 92 of the Factories Act. Section 92 deals with the penalties. It reads as under:
“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 manager 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 contravention is so continued:
[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under Section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than [twenty five thousand rupees] in the case of an accident causing death, and [five thousand rupees] in the case of an accident causing serious bodily injury.”
11. The said provision is applicable when the occupier and the Manager are prosecuted for the offences under the provisions of the Factories Act, but not under Section 338 of IPC. In the instant case, undisputedly the occupier has been prosecuted for the alleged contravention of the Factories Act and is convicted by the Trial Court. The charge under Section 338 of IPC would be sustained only when the grievous hurt is caused by the accused by doing any act so rashly and endangering human life, either on account of failure to maintain the lifts or in ensuring the safety of the workmen in the premises.
12. The facts of the case do not attract the ingredients of the offence punishable under Section 338 of IPC insofar as the petitioners are concerned. There are no allegations of rash and dangerous act by the petitioners. Therefore, on both these grounds, the prosecution of the petitioners being legally untenable, to secure the ends of justice and to prevent abuse of process of Court, the impugned proceedings are liable to be quashed.
As a result, the petition is allowed. The proceedings initiated under Section 200 Cr.P.C on the file of 9th Additional Chief Metropolitan Magistrate Court at Bengaluru in CC No.29050/2014 dated: 05.11.2014 are quashed.
Sd/- JUDGE SV/GH