No Liability of the Factory if the worker doesn’t come under the purview of Sec-7A(2) and Sec-2(l) :High Court of Bombay
The deceased employee must be directly engaged by the Factory in any activity relating to the manufacturing process. So, even if the definition of worker is borne in mind, the deceased should be employed either directly or through any agency for utilizing his services in the manufacturing process of the Factory. A single-judge bench comprising of Justice Mangesh S. Patil adjudicating the matter Mylan Laboratories Limited v. The State of Maharashtra (CRIMINAL APPLICATION NO.891 OF 2021) dealt with the issue of whether to allow the applicant’s petition and quash the proceeding.
In the present case, by invoking the powers of this Court under Section 482 of the Code of Criminal Procedure the applicant which is a factory and its occupier is seeking quashing of a complaint filed by the respondent being for the offences punishable under Section 92 read with Section 7-A (2)(c) of the Factories Act, 1948 and Section 92 of the Act read with Rule 4 (2) of the Maharashtra Factories Rules, 1963.
The applicant is a factory and is engaged in the manufacturing process wherein medicines are manufactured. A construction of a staircase for a building adjoining the main gate of the premises was going on and was undertaken by one M/s. Real Constro Projects Private Limited. The Employee of the construction company named Sachin Karbhari Kedare on 05.09.2020 around 5:30 pm started driving a TATA pickup vehicle and had gone for fetching cement bags. He parked the vehicle on a slope, alighted from the driver’s seat, and started proceeding on feet. Having seen that the vehicle was moving along the slope he tried to halt it physically but unfortunately was crushed between the vehicle and a wall and succumbed to the injury on the same day. The respondent who is a Deputy Director of Industrial Safety and Health, Aurangabad visited the premises, held an inquiry, and having concluded that the aforementioned offences were committed filed the complaint.
The Applicant submitted that no offense can be made even after accepting the allegations. Though the applicant is a Factory within the meaning of Section 2(m) of the Act and though it is engaged in manufacturing process within the meaning of Section 2(k), the deceased was not a worker within the meaning of Section 2(l) of the Act. The work that was being undertaken by the Construction Company had nothing to do with the manufacturing process. The deceased Sachin was an employee of that Construction Company and therefore the applicant was not responsible for the accident and cannot be fastened with criminal liability. It was further pointed that the complaint is absolutely silent as to what was the alleged violation of the approved plan. So that it can be said to have committed an offence punishable under Section 92 read with Rule 4 of the Rules. It was also submitted that essentially the applicant is engaged in manufacturing drugs. Admittedly the accident had occurred in respect of an employee engaged by the Construction Company which was carrying out the construction of a staircase and all these are not part of the manufacturing process of the drug.
The Respondents opposed the submissions of the applicant. It was submitted that the present inquiry is restricted in ascertaining if all the necessary ingredients for constituting the offences can be made out from the complaint. Quashing of a complaint is an exceptional circumstance and in the normal course, the complaints cannot be quashed. The power of quashing is to be exercised sparingly and with utmost caution. It was further submitted that it can be easily inferred from the complaint that the deceased was engaged by the Construction Company which in turn was carrying out construction activity of the staircase of the premises being used by the applicant factory and should be regarded as the part of the manufacturing process, at least an activity which is incidental to it.
The Court after looking into the submissions of both the parties observed that There is no dispute about the fact that the deceased was not directly in the employment of the applicant. It is also admitted that it was the Construction Company that was engaged by the applicant and was carrying out the construction of the staircase and the deceased was its employee. Factually, even there is no dispute about the manner in which the accident had occurred. As Per Sec-7(A) it lays down the general duty of the occupier inter alia of ensuring the safety of the workers working in the factory. A worker means a person employed either directly or through an agency in any manufacturing process or something connected with the manufacturing process. It was held that” the applicant undertakes to manufacture of medicines. The construction of a staircase for a building near the main gate was undertaken by the applicant but by engaging the Construction Company. The deceased was an employee of that Construction Company and was not directly engaged by the applicant in any activity much less touching the manufacturing process. So, even if the definition of worker is borne in mind, the deceased was not employed either directly or through any agency for utilizing his services in the manufacturing process of the drugs, which is a sine qua non for him to be a worker under that definition. Hence it cannot be said that the applicant was having any duty towards the deceased as is contemplated under Section 7-A of the Act so that punishment under Section 92 can be meted out.
Also regarding the violation of Rule 4(2) of the Rules, as can be seen it touches the use of the premises as a factory strictly in accordance with the plans approved by the Deputy Inspector of the Factories. The complaint is absolutely silent and does not disclose exactly as to in what respect there has been a violation of the approved plan the complaint only vaguely alleges that on the inspection being carried out by the respondent, after the occurrence of the accident, he found that the building layout the factory was not in conformity with the approved plan and is violative of Rule 4 of the Rules. One cannot make out as to what has been objected to by the respondent and it also does not disclose as to how merely on taking a round in the premises he could form such an opinion. Therefore it is quite apparent that the allegations regarding the construction of the premises being in violation of some approved plan are as vague as it could be.