IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6603 OF 2016 BETWEEN:
1. SRI ARISTIDES PROTONOTARIOS (MAJOR), OCCUPIER, 2. SMT. NIRMALA SHAHAPURKAR (MAJOR) MANAGER BOTH WORKING AT M/S NESTLE INDIA LIMITED, PLOT NO.24, KIADB INDUSTRIAL AREA, NANJANGUD, MYSORE DISTRICT. ... PETITIONERS (BY SRI: K.KASTURI, SENIOR ADVOCATE A/W SRI: PRADEEP KUMAR J, ADVOCATE) AND STATE OF KARNATAKA AT THE INSTANCE OF SRI. D.C. JAGADEESH, DEPUTY DIRECTOR OF FACTORIES, MYSORE DIVISION-1, MYSORE, (AN INSPECTOR APPOINTED UNDER SECTION 8(1) OF THE FACTORIES ACT, 1948) ... RESPONDENT (BY SRI: VIJAYAKUMAR MAJAGE ADDL. SPP) THIS CRL.P. IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT ON THE FILE OF I/C PRL. CIVIL JUDGE AND JMFC, NANJANAGUDU IN C.C.NO.622/2016 VIDE ANNEXURE-P AND SET ASIDE THE ORDER DATED 21.05.2016 IN C.C.NO.622/2016 TAKING COGNIZANCE OF OFFENCE BY I/C PRL. CIVIL JUDGE AND JMFC, NANAJANAGUDU.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned Senior Counsel appearing for petitioners and learned Addl. SPP for respondent. Perused the records.
Petitioner No.1 was occupier and Petitioner No.2 was the Manager of M/s. Nestle India Ltd. On 22.2.2016, at about 3.00 hours, one of the factory workers by name K.B.Anand was assigned with the work to fill coffee powder from big bags to tote bins. He moved stacker No.1 near pallet on which sizeable numbers of emptied big bags were kept to press it for easy transportation to the scrap yard. After raising the forks of the stacker atop, the worker locating himself at left side of the equipment (operator side), descended the forks by ooperating hydraulic control lever with an intention to press the empty bags kept on a pallet to reduce its size. In the process, the inner mast hit the right hand index finger which was on the top edge of the drive unit (protruding beyond the edge of the sheet metal cover towards fork side) resulting in cut injury of distal 2 phalanges.
2. The Deputy Director of Factories lodged a complaint under section 200 Cr.P.C., alleging contravention of provision of section 21(1)(iv)(c) of the Factories Act, 1948 which is punishable under section 92 of the Factories Act, 1948. Learned Magistrate took cognizance of the offences and issued summons to petitioners to answer the charge. Petitioners have approached this court seeking to quash the impugned proceedings.
3(i) Learned Senior Counsel appearing for petitioners, referring to the statement of injured employee, would submit that the alleged accident has taken place wholly on account of the negligence of employee. He has unequivocally admitted in his deposition that by oversight, he left his index finger below the fork and sustained injury. He has even given an undertaking to be careful in future while operating the machinery. Further, learned Senior Counsel referred to Annexure-‘E’ and emphasized that all the employees, including the injured employee, were given necessary training before operating the machinery. The said machine by itself, did not require any safeguards. However, solely on account of the advice given by the Inspector of Factories, necessary mesh was provided to the stacker. These facts, therefore, would clearly go to show that the alleged accident has not taken place on account of failure of petitioners providing any safety measure, rather the incident having taken place on account of negligence of the employee, prosecution of petitioners for the alleged mishap is legally untenable and amounts to abuse of process of court and thus prayed for quashing of the entire proceedings initiated against petitioners.
3(ii) In support of his submission, learned Senior Counsel has placed reliance on the decision of this court in D.Kumarswamy (Major) and Another Vs. State of Karnataka reported in 2013 LLR 1259, and emphasized that if bodily injury is caused to a worker not on account of any inherent defect in the construction, situation, operation or maintenance of the means of transport, but on account of negligence, then it cannot be said that occupier had contravened the provisions of the Act.
4. Refuting the above submissions, learned Addl. SPP appearing for respondent has drawn my attention to the averments made in the complaint, especially to paras 6 to 8 thereof and contended that the alleged accident has taken place solely on account of the failure of petitioners to fence securely the fork lift and that being a finding of fact recorded by the authorities under the Act, there is no reason to quash the impugned proceedings.
5. I have considered the submissions and have gone through the entire material produced by the parties.
6. There is no dispute with regard to the fact that the alleged accident had taken place while employee was operating the stacker. The statement of the injured goes to show that while operating the stacker, by inadvertence, he operated the lever, as a result, the fork descended and cut his distal 2 phalanges. This statement indicates that the alleged accident has taken place not on account of the failure of the employer/occupier to provide any safety measures.
7. Even otherwise, it is not the case of complainant that safety measures was essentially required for the machinery operated by the employee. According to the complainant, it is only after the alleged accident, the Inspector found it necessary to advise the occupier to provide an additional safety measure, and the same was complied by the occupier, by providing a mesh to the said stacker. In that view of the matter, it cannot be said that alleged accident had taken place solely on account of non-providing the safety measure by the occupier. As the material on record indicate that the alleged accident has taken place on account of negligent handling of the stacker by injured employee, in my view, prosecution of petitioners under section 21 of the Factories Act is not tenable.
8. No doubt section 21 of the Factories Act requires occupier to securely fence the machinery by providing necessary safeguards of substantial construction, but in the instant case, the material on record does not disclose that such safeguard was essentially required for the safety of employees. In that view of the matter, it cannot be said that the petitioners have violated the provision of section 21(1)(iv)(c) of the Factories Act rendering them liable for prosecution under section 92 of Factories Act.
9. In this context, it may be pertinent to refer to Investigation Report of the Deputy Director of Factories dated 28.03.2016, wherein he has referred to the deposition of the victim and has considered the nature of the machinery operated by the injured and in para 10of the said report, he has stated thus: Considering the hazard from the incident in subject, management is hereby advised to think of any suitable, safe and convenient means of handling the empty bags discarding the pressing operation using the forks of the stacker. In this context, it may also be relevant to note that in the Inspection report, the Deputy Director of Factories has observed that the practice of pressing the empty bags using forks is not a healthy practice. It is not the case of respondent that machinery used for the said purpose was inherently dangerous or was not provided with necessary safety measures. If this aspect is considered in the light of the deposition of injured, it goes without saying that alleged accident has taken place not on account of inherent danger of the machinery or on account of failure to provide any safety measures, rather the accident has taken place solely on account of the injured keeping his left hand inadvertently at the pressing part of fork.
For the above reasons, petition is allowed. The impugned proceedings in C.C.No.622/2016 on the file of Prl. Civil Judge and JMFC, Nanjangud are quashed. Liberty is reserved to respondent to resort to any other remedy available in law.
Sd/- JUDGE Bss