C O M M O N O R D E R Petitioner, who faces prosecution for alleged violation of provisions of the Factories Act, seeks quash of proceedings in S.T.C.Nos.315 and 316 of 2012 on the file of learned Chief Judicial Magistrate, Tiruvallur.
2. Heard learned senior counsel for petitioner and learned Government Advocate(Crl.Side).
3. Learned senior counsel for petitioner submitted that the company KCP Limited had registered as early as in the year 1957 under License No. 0694. The license had been renewed from time to time. Owing to an unfortunate incident on 20.02.2012, one Contractor suffered an accident and died. Petitioner has been arrayed as accused informing him to be the 'Occupier' of the Company. Referring to the list of Directors maintained by the Chief Inspector of factories, learned senior counsel submitted that the petitioner was one of ten Directors in the year 2005 and then had held the position of 'Occupier' of the Company. However, the list of Directors of the year 2006 revealed that though the petitioner was one of the ten Directors of the company, the position of 'Occupier' was held by a Director by name V.Gandhi. The record of the Deputy Chief Inspector of the Factories dated 27.10.2011 informing the list of directors as on 15.12.2010 reflected that there were eight Directors of the company, that this petitioner was a Director and that the said V.Gandhi was the Occupier. Petitioner was sought to be prosecuted for alleged violation of provisions of the Factories Act in S.T.C.Nos.315 and 316 of 2012 respectively. For the same violations, the occupier Mr.V.Gandhi has been prosecuted in S.T.C.Nos.311 and 312 of 2012 while the Manager of the company has been prosecuted there regards in S.T.C.Nos.313 and 314 of 2012. It is the submission of learned senior counsel that where V.Gandhi, the 'Occupier' of the company, had already been proceeded against, the prosecution against this petitioner totally was unfounded inasmuch as there cannot be more than one Occupier for a company.
Section 2(n) of the Factories Act, 1948, defines 'Occupier' as follows:
(n) Occupier of a factory means the person who has ultimate control over the affairs of the factory.
[Provided that-
(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors shall be deemed to be the occupier;
(iii) in the case of a factory owned or controlled by the Central Government or any State Government or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier. ........
4. Heard learned Government Advocate (crl.side) on the above submissions. Relying on the counter filed by the State, learned Government Advocate [Crl.side] submitted that it is for the petitioner to prove his innocence at the trial.
5. This Court has considered the rival submissions.
6.
Section 92 of the Factories Act is the charging section and reads as follows:
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 rule 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 the contravention is so continued:
[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or u/s.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].
Explanation:- In this section and in
section 94 serious bodily injury means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.
7. When it is only the Occupier and Manager of a company, who can be charged for the offences alleged in the cases before us and
Section 2(n)(ii) of the Factories Act makes clear that only any one of the Directors can hold the position of 'Occupier', it is only such person who can be proceeded against in such capacity. In the instant case, the records of Deputy Chief Inspector of Factories reveals that though this petitioner was the Occupier of the company in the year 2005 thereafter, it is one Mr.V.Gandhi who was the 'Occupier'. Such C.T.SELVAM, J bri/gm 'Occupier' was also prosecuted in S.T.C.Nos.311 and 312 of 2012. In the circumstances, prosecution of this petitioner on the allegation of his being the 'Occupier' of the company, a position which admittedly he long since has failed to hold, is totally unwarranted.
The Criminal Original Petitions shall stand allowed. The proceedings in S.T.C.Nos.315 and 316 of 2012 on the file of learned Chief Judicial Magistrate, Tiruvallur, are quashed. Consequently, connected miscellaneous petitions are closed.
19.06.2017 Index:Yes/No Internet:Yes/No bri/gm To
1.The Inspector of Factories, Thiruvottiyur(Incharge)
2. The Chief Judicial Magistrate, Tiruvallur.
3. The Public Prosecutor High Court, Madras.
Crl.O.P.No.5349 and 5350 of 2013