IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3544 OF 2014 BETWEEN:
1. SUSHIL KUMAR TIWARI S/O. GOVIND TIWARI, AGED ABOUT 59 YEARS, DIRECTOR & OCCUPIER, M/S. HEIDELBERG CEMENT INDIA LTD, AMMASANDRA, TUMKUR DISTRICT 572211 2. M. MOHAN RAO S/O M.V. MANJAPPA, AGED ABOUT 57 YEARS, FACTORY MANAGER, M/S. HEIDELBERG CEMENT INDIA LTD, AMMASANDRA 572211 TUMKUR DISTRICT (BY SRI: G.SANJAY, ADVOCATE) AND:
STATE OF KARNATAKA AT THE INSTANCE OF SRI H.S. NARENDRABABU, SENIOR ASST. DIRECTOR OF FACTORIES, TUMKUR DIVISION, ... PETITIONERS "CHIRA DEEPA", 1ST FLOOR, 5TH CROSS, ASHOKANAGARA, TUMKUR 572211 (BY SRI I.S.PRAMOD CHANDRA, SPP-II) ... RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 8.5.2014 IN C.C.NO.305/2014 ON THE FILE OF II J.M.F.C., TURUVEKERE VIDE ANNEXURE-A.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The Senior Assistant Director of Factories, Tumkur Division, Tumkur, filed a private complaint under section 200 Cr.P.C. seeking prosecution of the petitioners herein for the alleged negligence in causing death of one Mohammed Hanif Manihar. According to the complainant, the petitioners herein were the Occupier and Manager of M/s. Heidelberg Cement India Limited, Ammasandra, Turuvekere Taluk, Tumkur District, registered under the Factories Act, 1948. On getting information of an accident in the factory premises, the complainant visited the aforesaid factory and on enquiries, collected necessary documents. It was ascertained that the work of dismantling an old building was entrusted to Contractor M/s. Sahi Constructions, Mumbai. The dismantling work was being carried on by the contractor from 01.06.2013. At the time of the accident, out of five floors, three top floors were demolished and the 2nd floor demolition work was under progress. The deceased worker, Sri. Mohd. Hanif Manihar and three other workers reported for the work on 15th February 2014 at about 8.00 a.m., They started the work of demolishing of the North-West column of the second floor. They started the preliminary work by notching the concrete and cutting of the RCC Column, steel rods of dimensions 20 mm diameter. In the said column, there were about 16 steel rods. The workers got cut 14 rods, except 2. The steel rope was got tied to the said column and the other end of the steel rope was tied at about 75 metres away, wherein anchoring was done. During that time, Sri. Mohd. Haif Manihar, who had gone to tie the rope to the column, came down, when he was about to cross the wire rope, near the anchoring point, suddenly the column came down and the deceased fell on the western side, with a sudden jerk, on the wire rope which hit on his left foot ankle region, resulting amputation of lower one third of left leg, fracture of right thigh bone and scrotal region. After giving first- aid, in the factory hospital, the injured was shifted to Tumkur for further medical treatment, at Shridevi Hospital. The Doctors, after medical examination declared him brought dead.
2. According to the complainant, the petitioners herein failed to provide safe working conditions to the deceased which contributed to the fatal accident. The details of the alleged acts of omission and commission by the petitioners are mentioned in the complaint. Based on the said complaint, the learned Magistrate took cognizance of the alleged offence punishable under section 92 of the Factories Act and issued summons to the petitioners. At this stage, the petitioners have preferred this petition under section 482 Cr.P.C. seeking to quash the entire proceedings.
3. Learned counsel for the petitioners’ submits that the deceased was not employed either by M/s. Heidelberg Cement India Limited or by the petitioners herein. He was not an ‘worker’ within the meaning of Section 2(l) of the Factories Act, 1948. He was not involved in manufacturing activities and no manufacturing process was being carried on at the time of the alleged accident. The deceased was working directly under M/s. Sahi Constructions, Mumbai and therefore, the initiation of the proceedings against the petitioners solely on the ground that the petitioners are Occupier and Factory Manager is legally untenable.
4. In support of his argument, learned counsel has placed reliance on the decision of this Court in RAMACHANDRA vs.
A.R. VIJENDRA reported in ILR 1994 KAR 2437 and referring to paras 7 and 8 thereof would submit that Rule 84 of Karnataka Factories Rules, 1969 would be attracted only when some manufacturing process is carried on in the factory. In such a case, the occupier who is responsible for the work in the factory premises would be liable for contravention of Rule 84. But if due to negligence in carrying out a work which is not connected with manufacturing activity, the occupier cannot be held liable for contravention of Rule 84.
5. Learned SPP-II appearing for the respondent-State has placed reliance on the definition of the term ‘Worker’ as defined in Section 2(l) of the Factories Act which read as follows:-
“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 of 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 process, or the subject of the manufacturing process [but does not include any member of the armed forces of the Union] and would submit that as per the said definition, any person employed, directly or by or through any agency including the contractor for the purpose of cleaning any part of the machinery or premises for manufacturing process falls within the ambit of the said provision, the accident in question having taken place within the factory premises where the manufacturing process was being carried on as defined under Section 2(k) of the Act and the work attended to by the deceased being incidental to the manufacturing process, the complaint against the petitioners is maintainable. In support of his arguments, he has referred to the decision of this Court in Cr.P.No.5671/2011 (Sri. P. Panduranga Rao and Another vs. State of Karnataka, Senior Assistant Director of Factories, Mangalore disposed of on 01.10.2018).
6. In the light of the contentions urged by the parties, the questions that fall for consideration are as follows:-
a. Whether the deceased was a ‘worker’ within the meaning of Section 2(l) of the Factories Act, 1948 ?
b. Whether the work attended to by the deceased has a nexus to or proximate with the “manufacturing process” carried on in the aforesaid factory premises?
7. Undisputedly, the above accident took place while the deceased was attending to the dismantling of the old dilapidated building situated in the factory premises. It is not in dispute that the deceased was engaged by M/s. Sahi Constructions, Mumbai. No-doubt, the expression ‘Worker’ includes any person who is employed directly or by or through any agency with or without the knowledge of the principal employer, nonetheless, in order to attract the provisions of the Act, the ‘worker’ employed in the said factory should be engaged in “manufacturing process” or any work incidental to or connected with the manufacturing process.
8. In order to appreciate the controversy as to whether at the time of the accident, the deceased was engaged in any work incidental to or connected with the manufacturing process, it would be apt to refer to the decision in UNION OF INDIA AND ANOTHER vs. ARUN VITHAL BONDE, 2010 (3) Mh.L.J.
447, wherein it is held as follows:-
“The ambit of these words is very wide and must necessarily include those who are not employed in the manufacturing process. The words ‘any other kind of work’ emphasizes that the work is other than that of the manufacturing process itself. The nature of the ‘other kind of work’ may not be the manufacturing process per se or a part thereof. The work may be entirely different. It must, however, be incidental to or connected with it. Such other work must have nexus to or be proximate with the manufacturing process for instance by contributing to or facilitating the manufacturing process.”.
9. In the instant case, undeniably, the deceased was engaged in the work of dismantling of old pre-heater building. There is nothing on record to show that the said building was used for any manufacturing process at the relevant time. It is also not the case of the respondent that the said building was being renovated for the purpose of carrying on any manufacturing activity. Therefore, it cannot be said that the deceased was engaged in “any other kind of work” or the work which was incidental to or connected with the manufacturing process so as to bring him within the definition of ‘worker’ as defined under Section 2(l) of the Factories Act.
10. It is fairly, submitted that the deceased was governed under the provisions of ‘The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996’ and the contractor had paid substantial compensation to the deceased family under the said Act. Nonetheless, as the deceased does not fall within the definition of ‘Worker’ as defined under Section 2(l) of the Factories Act and no manufacturing process was being carried on in the building which was under demolition, the provisions of the Factories Act, 1948 are not applicable to the facts of this case. Consequently, the complaint against the petitioners for the alleged violation of Section 92 of the Factories Act cannot be sustained.
Accordingly, the petition is allowed. The impugned proceedings initiated against the petitioners in C.C.No.305/2014 on the file of Court of II Judicial Magistrate First Class, Turuvekere are quashed.
*mn/-
Sd/- JUDGE