IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2166 OF 2014 C/W CRIMINAL PETITION NO.2168 OF 2014 CRIMINAL PETITION NO.2169 OF 2014 CRIMINAL PETITION NO.2170 OF 2014 CRIMINAL PETITION NO.2238 OF 2014 CRIMINAL PETITION NO.2261 OF 2014 CRIMINAL PETITION NO.2262 OF 2014 CRIMINAL PETITION NO.2264 OF 2014 CRIMINAL PETITION NO.2265 OF 2014 CRIMINAL PETITION NO.2421 OF 2014 IN CRIMINAL PETITION NO.2166 OF 2014 BETWEEN:
1. P.P UPADHYA S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA AGED 59 YEARS DIRECTOR (TECHNICAL) OCCUPIER PRESENTLY MANAGING DIRECTOR M/S.MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K.
2. SRI H.P.PAI S/O H.R.PAI AGE 57 YEARS G.G.M (H.R), FACTORY MANAGER M/S. MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K. ... PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA BY SRI K G NANJAPPA DEPUTY DIRECTOR OF FACTORIES DIVISION-I, MANGALORE-575 006, D.K. ... RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN THE C.C.NO.599/13 ON THE FILE OF THE JMFC-II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2168 OF 2014 BETWEEN:
1. P.P UPADHYA S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA AGED ABOUT 59 YEARS DIRECTOR (TECHNICAL) OCCUPIER, PRESENTLY MANAGING DIRECTOR M/S.MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K.
2. SRI KONDURI LAXMINARAYAN S/O LATE K B PRASADA RAO AGED ABOUT 53 YEARS G G M (H.R.), FACTORY MANAGER M/S. MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K. ... PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA DEPUTY DIRECTOR OF FACTORIES DIVISION-I, MANGALORE-575003 SRI VENKATESH COMPLEX KOTTARA, MANGALORE-560003. ... RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN C.C.NO.1693/12 ON THE FILE OF THE JMFC -II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2169 OF 2014 BETWEEN:
1. P.P UPADHYA S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA, AGE 59 YEARS DIRECTOR (TECHNICAL) OCCUPIER PRESENTLY MANAGING DIRECTOR M/S.MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K.
2. SRI. KONDURI LAXMINARAYAN S/O LATE K.B. PRASADA RAO AGE 53 YEARS, 3. G.G.M.(H.R.) FACTORY MANAGER M/S. MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K. … PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA BY M N JAKKANNAVAR DEPUTY DIRECTOR OF FACTORIES DIVISION-I, MANGALORE DEPARTMENT OF FACTORIES BOILERS INDUSTRIAL SAFETY AND HEALTH I FLOOR, VENKATESH COMPLEX, KOTTARA MANGALORE-560 003 ... RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN C.C.NO.4475/2011 ON THE FILE OF THE JMFC -II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2170 OF 2014 BETWEEN:
1. P.P UPADHYA S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA AGE 59 YEARS DIRECTOR (TECHNICAL) OCCUPIER PRESENTLY MANAGING DIRECTOR M/S.MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K.
2. SRI KONDURI LAXMINARAYAN S/O LATE K.B.PRASADA RAO AGED 53 YEARS G.G.M (H.R), FACTORY MANAGER M/S MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K. ... PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA DEPUTY DIRECTOR OF FACTORIES DIVISION-1, MANGALORE-575030. .. RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN C.C.NO.1519/12 ON THE FILE OF THE JMFC -II COURT, MANGALORE DIST.
IN CRIMINAL PETITION NO.2238 OF 2014 BETWEEN:
1. P P UPADHYA S/O. LATE PRAMPALLI YAJNANARAYANA UPADHYA AGE 59 YEARS DIRECTOR (TECHNICAL) OCCUPIER PRESENTLY MANAGING DIRECTOR M/S. MANGALORE REFINERY AND PETROCHEMCIALS LTD., KUTHETHOOR VIA, KATIPALLA MANGALORE-575 030, D.K.
2. SRI H.P. PAI S/O. H.R. PAI AGE 57 YEARS FACTORY MANAGER M/S. MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA, MANGALORE-575 030, D.K. ... PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA DEPUTY DIRECTOR OF FACTORIES DIVISION-I, MANGALORE DEPARTMENT OF FACTORIES BOILERS MANGALORE-560 003, D.K. ... RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN THE C.C.NO.1378/2013 ON THE FILE OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2261 OF 2014 BETWEEN:
1. P.P.UPADHYA S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA AGED 59 YEARS DIRECTOR (TECHNICAL) OCCUPIER AT PRESENT M/S.MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K.
2. SRI KONDURI LAXMINARAYAN S/O LATE K.B.PRASADA RAO AGED 53 YEARS G.G.M (H.R), FACTORY MANAGER M/S MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K. .. PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA BY M.N.JAKKANNAVAR DEPUTY DIRECTOR OF FACTORIES DIVISION-1 MANGALORE-560006, D.K. .. RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN THE C.C.NO.428/2012 ON THE FILE OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2262 OF 2014 BETWEEN:
1. SRI.V.G.JOSHI S/O GOPAL APPAN BHAT AGE 59 YEARS OCCUPIER DIRECTOR (TECHNICAL) OCCUPIER M/S.MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K.
2. SRI.H.P. PAI S/O LATE H.R.PAI AGED 57 YEARS FACTORY MANAGER M/S. MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K. ... PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA BY SRI. K.G. NANJAPPA DEPUTY DIRECTOR OF FACTORIES DIVISION-1, MANGALORE-560 006. ... RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN THE C.C.NO.3243/2013 ON THE FILE OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2264 OF 2014 BETWEEN:
1. P.P.UPADHYA S/O LATE PARAMPALLI YAJNANARAYANA UPADHYA AGED ABOUT 59 YEARS DIRECTOR (TECHNICAL) OCCUPIER AT PRESENT M/S. MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K.
2. SRI.H.P.PAI S/O H.R.PAI AGED ABOUT 57 YEARS G.G.M(H.R.), FACTORY MANAGER M/S. MANGALORE REFINERY AND PETROCHEMICAL LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575 030, D.K. .. PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA BY K.G.NANJAPPA DEPUTY DIRECTOR OF FACTORIES DIVISION-I MANGALORE-560 006, D.K. .. RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN THE C.C.NO.2814/12 ON THE FILE OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2265 OF 2014 BETWEEN:
1. SRI.V.G.JOSHI S/O GOPAL APPAN BHAT AGED 59 YEARS OCCUPIER, DIRECTOR (TECHNICAL) OCCUPIER M/S.MANGALORE REFINERY AND PETROCHEMICLS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K.
2. SRI H P PAI S/O LATE H R PAI AGED 57 YEARS FACTORY MANAGER M/S.MANGALORE REFINERY AND PETROCHEMICLS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE-575030, D.K. ... PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA BY SRI K G NANJAPPA DEPUTY DIRECTOR OF FACTORIES DIVISION-I MANGALORE-560006, D.K. ... RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN THE C.C.NO.3692/2013 ON THE FILE OF THE JMFC-II COURT, MANGALORE DISTRICT.
IN CRIMINAL PETITION NO.2421 OF 2014 BETWEEN:
1. P P UPADHYA S/O LATE PRAMPALLI YAJNANARAYANA UPADHYA AGE 59 YEARS, DIRECTOR (TECHNICAL) OCCUPIER PRESENTLY MANAGING DIRECTOR M/S. MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA MANGALORE -575030, D.K.
2. SRI H.P.PAI S/O LATE H.R.PAI AGED ABOUT 57 YEARS G.G.M (H.R), FACTORY MANAGER M/S. MANGALORE REFINERY AND PETROCHEMICALS LTD., KUTHETHOOR VIA KATIPALLA, MANGALORE-575030, D.K. ... PETITIONERS (BY SRI.ASHOK HARANAHALLI, SR.ADV. FOR SRI.S.B.PAVIN, ADV.) AND:
THE STATE OF KARNATAKA BY SRI M.N JAKKANNAVAR DEPUTY DIRECTOR OF FACTORIES DIVISION-I, MANGALORE -560006, D.K. .. RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN C.C.NO.429/2012 ON THE FILE OF J.M.F.C. (II COURT), MANGALORE DIST.
THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Since common questions of law and facts are involved in these petitions, they are heard and disposed of by this common order.
2. M/s.Mangalore Refinery & Petro Chemicals (MRPL) is the petitioner in all these petitions. It undertook expansion of the Refinery in Phase III project and the work of construction of the factory building was entrusted to M/s.Gannon Dunkerley & Company Ltd. The construction workers engaged by the Contractor namely, M/s. Gannon Dunkerley Ganon met with accidents at the site on different dates and sustained grievous injuries and casualties. The details of the accidents are given herein below :-
Sl Case No. Allegation Contraventions/Offences No 1 Crl.P No.2166/ 2014 In CC No.599/2013 A1- PP Upadyaya A2- HP Pai 2 Crl.P No.2168/2014 In CC No.1693/2012 The alleged accident has occurred in unit under construction at Phase 3 site wherein a construction worker fell from Level +113 while returning from welding job after removing the hook/bracket of the safety belt which resulted in the death of the worker The alleged accident occurred wherein the driver and cleaner of a tanker truck Sec 32(b) & (c). Sec 7A(2)(c) & (d) of the Factories Act. Offence punishable under section 92 of the Factories Act.
Sec.36(1)(2)(a) & (b) Sec.7A(2)(c) of the Factories A1-PP Upadyaya A2-Konduri Laxminarayan 3 Crl.P.No.2169/2014 In CC No. 4475/2011 A1-PP Upadyaya A2-Konduri Laxminarayan 4 Crl.P.No.2170/2014 In CC No. 1519/2012 A1-PP Upadyaya A2-Konduri Laxminarayan 5 Crl.P.No.2238/2014 In CC No.1378/2013 A1-PP Upadyaya A2-HP Pai 6 Crl.P.No.2261/2014 In CC No.428/2012 A1-PP Upadyaya A2-Konduri Laxminarayan 7 Crl.P.No.2262/2014 In CC No.3243/2013 A1-VG Joshi A2-HP Pai 8 Crl.P.No.2264/2014 In CC No.2814/2012 A1-PP Upadyaya A2-HP Pai bearing number TN-41-AA-7535 parked inside the Factory Premises for filling BITUMEN, fell inside the tanker when the lid of tanker was open The alleged accident has occurred at the construction site at Phase 3 site when a contract worker of M/s Punjlloyd was sevearly injured due to the malfunctioning of a crane operated by a sub contractor at Phase 3.
The alleged accident has occurred in PFCCU Unit in Phase 3 of the Factory wherein a construction worker while returning from a welding job fell from a scaffolding platform at 60.7 meters and succumbed to his injuries The alleged accident has occurred at Phase 3 site where the contract welder employed by M/s Powermech Projects Ltd. Who was doing TAC Welding at Level+12600 fell from 12.6 Meters and succumbed to his injuries Accident occurred while uploading reinforced steel from a lorry causing the death of the site engineer employed by M/s Nityananda Infrastructure Pvt. Ltd. for the construction of Phase 3.
The alleged accident has occurred at a unit under pre-commissioning at Phase 3 of the Factory resulting in burn injuries Accident occurred inside utility boiler 2 of Phase 3 which was under erection stage resulting in death of one of the construction workers Act. Offence punishable under Section 92 of the Factories Act.
Sec.29(1) (a)(i), Sec 29(1)(a)(ii) & Rule 130(3) of the Factories Act and Rules. Offence punishable under Section 92 of the Factories Act.
Sec.32(b) & (c), Sec 7A(2)(c) & (d) and Rule 130(1), 130(3) of the Factories Act and Rules. Offence punishable under Section 92 of the Factories Act.
Sec 32(b) & (c) & Sec. 7A(2)(c) & (d), and Rule 80, 130(3) of the Factories Act and Rules.
Offence punishable under section 92 of the Factories Act.
Sec.7A(2)(b) & Rule 83, 130(1) & 130(3) of the Factories Act and Rules.
Offence punishable under section 92 of the Factories Act. Sec.7A(2)(b) & Rule 84 of the Factories Act and Rules.
Offence punishable under section 92 of the Factories Act. Sec 32(b) & (c) Sec. 7A(2)(c) & (d), and Rule 84, 130(1) & 130(3) of the Factories Act and Rules.
Offence punishable under section 92 of the Factories Act.
9 Crl.P.No.2265/2014 In CC No.3692/2013 A1-VG Joshi A2-HP Pai The alleged accident has occurred inside utility boiler 1 in captive power plant at Phase 3 which was under erection stage when the contract workers of different independent contractors who were engaged in providing scaffolding and insulation for boiler feed water line wherein the welded cut end of the temporary steam line gave away resulting in steam of 250 degree Celsius, causing Sec.7A(2)(b) & Rule 84 of the Factories Act and Rules.
Offence punishable under section 92 of the Factories Act.
10 Crl.P.No.2421/2014 In CC No.429/2012 A1-PP Upadyaya A2-Konduri Laxminarayan injuries to the workers out of whom one Babu Singh died The alleged accident has occurred in Phase 3 of the project where the construction was going on and MRPL had given a turnkey project contract to Engineers India Pvt. Ltd. Wherein Zinc Phosphate work was undertaken and at the same time gasketing work was also going on in the same area, resulting in the paint catching fire which injured workers of which 4 workers succumbed to their injuries.
Section 37(1) and Rules 130(1) & 130(3) of the Factories Act and Rules.
Offence punishable under Section 92 of the Factories Act.
The Deputy Director of Factories Division-1 Mangalore filed different complaints before the II Additional JMFC I Class, Mangalore seeking prosecution of the petitioners under Sections 32(b)&(c),7A(2)(c)&(d)[Crl.P.2166/14]; 36(1)(2)(a) & (b), 7A(2)(c) [Crl.P.2168/14]; 29(1)(a)(i),29(1)(a)(ii) & Rule 130(3) [Crl.P.2169/14);
32(b)&(c),7A(2)(c)&(d) & Rule 130(1), 130(3) [Crl.P.2170/14]; 32(b)&(c) 7A(2)(c)&(d) & Rule 80, 130(3) [Crl.P.2238/14); 7A(2)(b) & Rule 83, 130(1) & 130(3)[Crl.P.2261/14]; 7A(2)(c) & Rule 84 [Crl.P.2262/14];
32(b)&(c) 7A(2)(c)&(d) & Rule 84, 130(1)&130(3)[Crl.P.2264/14];
7A(2)(b) & Rule 84 [Crl.P.2265/14); 37(1) & Rule130(1) &130(3)[Crl.P.2421/14] of the Karnataka Factories Act 1948 and Karnataka Factories Rules, 1969. In all the petitions, it was alleged that the mandatory safety measures were not provided at the construction site which resulted in fatal accidents and thus the Company and its Chairman and the Factory Manager were sought to be prosecuted for the above violations.
3. Learned Senior Counsel appearing for petitioners placing reliance on the decision of the Hon’ble Supreme Court in Lanco Anpara Power Limited v. State of Uttar Pradesh and Others reported in (2016) 10 SCC 329 would contend that the establishment of the petitioners does not fall within the ambit of Factories Act, 1948 and the Rules framed thereunder. Victims who suffered injuries at the construction site were employed by the Contractor- M/s.Gannon Dunkerley & Company Ltd. None of these victims answer the definition of ‘worker’ as defined under the Factories Act. None of the alleged accidents had taken place at the site where manufacturing process or manufacturing activities or any other activities connected or incidental thereto were being carried on at the relevant time. Under the said circumstance, the proposed prosecution of the petitioners under the provisions of the Factories Act and the Rules is wholly illegal and cannot be sustained under law. Referring to the above decision, the learned counsel highlighted that the petitioners herein are sought to be prosecuted solely on the basis that the petitioners herein obtained a licence for construction drawings as mandated under Section 6 of the Factories Act. Dealing with the said provision, the Hon’ble Supreme court in the above decision has held that mere obtaining a licence under Section 6 of the Factories Act for registration of factory, would not make the establishment a ‘factory’ within the meaning of Factories Act. With these contentions the learned Senior Counsel sought to quash the action initiated against the petitioners in the above proceedings.
4. Learned Addl. SPP however, has staunchly defended the impugned proceedings contending that the petitioners themselves submitted to the jurisdiction of the Factories Act by obtaining licence under the provisions of the Act. The documents submitted by the petitioners before the Director of Factories and Boilers would clearly indicate that petitioners were involved in construction of a building to enable the refinery complex which is a “manufacturing process” within the meaning of Section 2(1) (c) of the Factories Act. As per Section 2(l) of the Act, a worker whether employed directly or through a contractor in any manufacturing process or cleaning any part of the machinery or premises used for the manufacturing process is covered under the provisions of the said Act. In the instant case, accidents having taken place while the victims were engaged in construction of a building meant for expansion of manufacturing process, respondent was justified in initiating proceedings under the provisions of the Factories Act and thus sought to dismiss the petitions.
5. I have bestowed my careful thought to the rival submissions made at the Bar and carefully scrutinized the material on record as well as the decision relied upon by the learned Senior Counsel for the petitioner.
6. The basic facts are not in dispute. The alleged accidents had taken place while the victims were involved in the construction of Phase III project. All the victims were the contract labourers engaged by the respective contractors. It is not the case of the complainant/respondent that any manufacturing activity was being carried on at the locations where the alleged accidents had taken place. On the other hand, the very document relied on by the complainant reveals that approval was sought by the petitioners for expansion of the project. In the said communication dated 8.5.2008 the petitioner-company has specifically stated that MRPL, a subsidiary of ONGC has embarked on a Refinery Upgradation and Expansion project (phase-3 Project) adjacent to the existing Refinery Complex with the following objectives :
1) To Eliminate/Reduce Fuel oil Production 2) To upgrade the production facilities to enable the Refinery complex to produce Euro-III and Euro Iv grade distillates 3) To build a new 3 MMTPA crude unit with suitable metalury to process high acid crudes. By this the Refinery Complex processing capacity will be enhanced to 15 MMTPA.
4) To produce High Value products Vis Polymer grade Propylene 7. These facts clearly indicate that the alleged construction was intended to be set up near the existing refinery complex and no manufacturing process had commenced or was being carried on at the relevant time. In this regard, the averments made in the respective complaints go to show that at the time of the alleged accidents, the contract workers were attending to the work assigned to them by the respective contractors in the “unit under construction of phase-III site”. It is specifically stated in all the complaints that the alleged accidents had taken place at the unit under construction of phase III site. There is nothing in the entire complaint or in the material produced by the respondent as well as the petitioners to show that any manufacturing process was being carried on at the unit under construction. In this back drop if the term ‘worker’ as defined in Section 2(l) of the Factories Act. 1948 is analysed, it reads as under :-
2(l) “worker” means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing, or the subject of the manufacturing process but does not include any member of the armed forces of the Union”.
What is ‘manufacturing process’ is defined in Section 2(k) of the Act as under :-
“2(k) “manufacturing process” means any process for – (i)making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or (ii) pumping oil, water, sewage or any other substance, or (iii) generating, transforming or transmitting power, or (iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding, or (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels, or (vi) preserving or storing any article in cold storage”
8. Dealing with identical situation, the Hon’ble Supreme Court in Lanco Anpara referred supra negatived the contentions urged by the complainant therein that since the factories stood registered under the Factories Act, they were not covered under the provisions of Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 (hereinafter referred to as ‘the BOCW Act’).
In Paragraph 36 of the above decision it is held as under :-
“We may mention at this stage that the High Court is right in observing that merely because the appellants have obtained a licence under Section 6 of the Factories Act for registration to work a factory, it would not follow therefrom that they answer the description of the “factory” within the meaning of the Factories Act. We have reproduced the definition of “factory” and a bare reading thereof makes it abundantly clear that before this stage, when construction of the project is completed and the manufacturing process starts, “factory” within the meaning of Section 2(m) of the Factories Act does not come into existence so as to be covered by the said Act.”
10. Further, an analysis of the definition ‘worker’ as defined in Section 2(l) of the Factories Act would also make it clear that only when a worker is engaged in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with the manufacturing process, or the subject of the manufacturing process, he would fall within the definition of ‘worker’ as defined in Section 2(l) of the Factories Act.
11. In the instant case, as already stated above, respondent-complainant has invoked the provisions of the Factories Act solely on the premise that approval has been accorded to the petitioner under Section 6 of the Factories Act and therefore, every person engaged by the Contractor answers the description of “worker” within the meaning of Factories Act. This plea is misconceived and is contrary to the provisions of the Act. The facts and circumstances of the case clearly point out that accidents had taken place at the respective units under construction where no manufacturing process or manufacturing activity was being carried on. In that view of the matter, prosecution launched against the petitioners under the provisions of the Factories Act is legally not tenable and cannot be sustained.
13. The facts and circumstances discussed above clearly indicate that the victims are covered under the provisions of the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996. For all these reasons, the proceedings initiated against the petitioners being illegal and abuse of process of court are liable to be quashed.
Accordingly, the petitions are allowed. The proceedings initiated against the petitioners in C.C.Nos.599/2013, 1693/2012, 4475/2011, 1519/2012, 1378/2013, 428/2012, 3243/2013, 2814/2012, 3692/2013, 429/2012 pending on the file of JMFC (II Court) Mangalore, D.K. are quashed. Liberty is reserved to the respondents to proceed against the concerned under any other provisions of law including Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996. It is made clear that this order shall not come in the way of the respondent from taking recourse to any other remedies available under law for appropriate reliefs.
Sd/- JUDGE rs