The accused in C.C.No.11 of 2009 pending on the file of the Chief Judicial Magistrate, Vellore is the petitioner herein. The prosecution has been launched against the petitioner herein, for an offence punishable under Section 92 of the Factories Act 1948 for the violation of the following provisions:
i)
Section 6(1) of the Factories Act r/w 4(1) (2)(3) and Rule 12-B (5) of the Factories Rules,
ii) And
Section 7(1) of the Factories Act r/w Rule 12 of the Factories Rules.
2. At the time of inspection by the Inspector of Factories on 02.12.2008, he found that manufacturing process using power was going on with the engagement of 22 workers. The following violations were noted by the Inspector of Factories at the time of his inspection:
(i) Approval for the topo sketch cite plan and detailed plan had not been obtained,
(ii) Approval had not been obtained by submitting Form No.I and Form No.II,
(iii) And the documents required to be exhibited in the Factory were also not exhibited at the time of inspection by the Inspector of Factories.
3. After the notice issued by the Inspector of Facotries, Circle-II, Vellore, the petitioner herein gave a reply stating that he was neither a manager nor the owner of the factory premises and he was doing job work there in the factory premises which was inspected by the Inspector of Factories on 02.12.2008. Not satisfied with the reply, the Inspector of Factories, Circle-II, Vellore submitted a complaint as per
Section 105(1) of the Factories Act on the file of the Chief Judicial Magistrate, Vellore. The same was taken on file as C.C.No.11 of 2009 and process was issued to the petitioner herein, who was arrayed as the sole accused in the said case. As against the issue of process and seeking an order quashing the criminal proceedings initiated against the petitioner in C.C.No.11 of 2009 on the file of the Chief Judicial Magistrate, Vellore. The petitioner has come forward with the present petition under
Section 482 CrPc.
4. The submissions made by Mr.C.P.Sivamohan, learned counsel for the petitioner and also by Mr.Paul Nobel Devakumar, learned Government Advocate (Crl Side) were heard. The affidavit filed in support of the petition and materials produced were also perused by this Court.
5. It is the contention of the petitioner that the very initiation of the criminal proceedings against the petitioner is obnoxious and against law as he is neither the manager nor the owner of the premises which was inspected by the complainant viz., Inspector of Factories, Circle-II, Vellore on 01.12.2008. It is also his contention that he was doing job work viz., tanning in the said premises and hence, he could not be expected to get the approval of the documents pointed out supra. Learned counsel for the petitioner would also contend that the owner of the premises had leased out the factory premises to a third party and it was the third party M/s.Sarfaraz Niaz & Co. who was running the factory on lease; that all those documents with the necessary approval would be available only with them or the owner of the premises and that prosecuting the petitioner for his inability to produce those documents would not be proper in law. Though there is no such clear stand taken by the petitioner in his reply to the notice of the Inspector of Factories and in the affidavit filed in support of this petition, the learned counsel for the petitioner would contend that the petitioner was not even an occupier of the factory and hence, he could not be prosecuted for any of the offences cited in the complaint.
6. Per contra, the learned Government Advocate (Crl side) representing the respondent would submit that the ownership of the premises used as factory or even the ownership of the machineries is quite irrelevant as the respondent herein has given complaint for the irregularities found by him at the time of inspection against the petitioner herein as the proprietor of Hermen Tanning Company which was using the said premises for manufacturing purposes with more than 22 workers and thus, the petitioner happened to be the occupier of the factory. The petitioner herein has simply stated that he is neither a manager nor a owner of the premises used as factory. He has not denied that the premises inspected by the respondent on 02.12.2008 was used as a factory and that the Factories Act was applicable to the said premises. On the other hand conceding that the premises inspected by the respondent conformed to the definition of factories, the petitioner had taken a stand that he was not responsible for producing the documents required by the Inspector of Factories at the time of his inspection. The stand taken by the petitioner as pointed out supra is rather nebulous. No clear cut averment has been made by the petitioner to the effect that he was not doing any manufacturing business using the above said premises. On the other hand he has simply stated that he was doing job work in the said premises i.e., he was using the factory to manufacture his own product with the consent of the owner of the premises or the lessee of the premises. It is not his clear case that he simply entrusted the raw materials to the owner of the premises or the lessee of the premises to process and give it back as a finished material and that he was there only to help the person who was doing the tanning work in the said premises. 7. Therefore, this Court is not in a position to accept the contention of the learned counsel for the petitioner that the petitioner will not come under the definition of occupier.
Section 6(1) of the Factories Act 1948 deals with the grant of approval, permission and licence and also renewal of such licence.
Section 7(1) of the Factories Act mandates the occupier of the factory to send a written notice to the Chief Inspector of Factories atleast 15 days before the date he begins to occupy or use any premises as a factory, containing the particulars of name of the factory, name and address of the occupier etc. Rule 4 (1), (2) and (3) deal with the grant of licence, registration of the factory and the fees to be levied. Rule 12-B (5) mandates that an occupier shall not use any premises as a factory or carry on any manufacturing process in a factory, unless a licence has been issued in respect of such premises and the same is in force for the time being. Similarly Rule 12 says that notice of occupation shall be given to the Chief Inspector of Factories in Form No.II. At the time of inspection of the premises by the respondent, Inspector of Factories, no such document to show compliance with the above said provisions was produced. That is why the respondent has chosen to file a complaint against the petitioner herein under
Section 105(1) of the Factories Act. Even now, the petitioner has not chosen to produce any of the documents showing that such approval/ licence had been obtained and intimation regarding the occupation of the premises as factory by the petitioner was given to the Chief Inspector of Factories. Without producing any such material, the petitioner has chosen to challenge the initiation of criminal proceedings by invoking the jurisdiction of this Court under
Section 482 CrPc, to get the same quashed. Materials so far produced are not enough to come to a conclusion that the prosecution cannot result in conviction. That being so, this Court sees no substance in the contention raised by the petitioner in this petition. There is no merit in this petition and the same deserves to be dismissed.
Accordingly, petition is dismissed. Connected M.P.Nos.1 & 2/09 are closed.
kua To
1. The State, Rep., by Inspector of Factories, Division-II, Vellore
2. The Public Prosecutor,High Court, Chennai