Chinubhai Haridas Vs. The State of
Bombay [1959] INSC 110 (4 September 1959)
WANCHOO, K.N.
IMAM, SYED JAFFER
CITATION: 1960 AIR 37 1960 SCR (1) 654
ACT:
Factories--Precautions against dangerous
fumes-Duty of occupier-Liability for accident-" Be Permitted to enter
", meaning of-Indian Factories Act, 1948 (LXVIII Of 1948), S. 36(3) and
(4).
HEADNOTE:
The appellant was the occupier of a factory
where there was a pit in which dangerous fumes were likely to be present.
The pit was securely covered and enclosed and
no one was expected to go down into it for normal work as it was worked by
gadgets fixed nearby above the ground. Something went wrong with the machinery
inside the pit and five workers went down without wearing suitable breathing
apparatus and without, wearing a belt securely attached to a rope the free end
of which could be held by some person standing outside.
All the workers were overcome by poisonous
gases and died.
It was found that suitable breathing
apparatus, reviving apparatus, belts and ropes were not available anywhere in
the factory and were not kept for ready use near the pit.
The appellant was prosecuted as the occupier
for breach of the provisions Of s. 36(3) and (4) of the Indian Factories Act,
1948. The trial Court held that no offence under S. 36(3) had been made out and
it was not proved that any permission, express or implied, had been given to
the workmen to enter the pit, and I that no offence under S. 36(4) had been
made out because no permission having been given it was 'not necessary to keep
the breathing apparatus etc., near the pit or anywhere else in the factory and
consequently it acquitted the appellant. On appeal by the State, the High Court
set aside the (1) [1952] S.C.R. $67. 655 acquittal and directed the trial Court
to decide the case against the appellant in the light of the interpretation of
the law made by the High Court. The High Court was of the view that as c, the
appellant had failed to prevent the entry of the workers he must in law be held
to have permitted the entry and committed breach Of s. 36(3) ; and that it was
not sufficient compliance with s. 36(4) to provide breathing apparatus etc.,
only after coming to know that some person was about to enter the pit but that
such apparatus must be immediately available at the pit at all times.
Held, that s. 36(3) did not cast an absolute
duty on the occupier to prevent the entry into the pit and the mere fact that a
person had entered the pit did not by itself prove that he had been
"permitted to enter " within the meaning of that, subsection. The
primary duty was on the worker prohibiting him from entering the pit. At the
same time the occupier was also liable if his permission to the entry, whether
express or implied, could be inferred from the facts and circumstances of the
case.
Held, further, that s. 36(4) cast an absolute
duty on the occupier to see that the breathing apparatus etc., was always
available in the-factory and was periodically examined and certified fit for
use and a sufficient number of persons were trained in its use. But there was
no -duty to keep the apparatus at the pit at all times; such a duty arose when
some person was about to enter the pit with the permission of the occupier.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 193 of 1957.
Appeal by special leave from the judgment and
order dated August 1, 1957, of the Bombay High Court in Criminal Appeal No. 365
of 1957, arising out of the judgment and order dated the November 28, 1956, of
Joint Civil Judge, Junior Division, and Judicial Magistrate First Class,
Broach, in Summary Case No. 57 of 1956.
Rajni Patel and M. S. K. Sastri, for the
appellant.
H. J. Umriyar, T. M. Sen and R. H. Dhebar,
for the respondent.
1959. September 4. The Judgment of the Court
was delivered by WANCHOO J.-This appeal by special leave against the judgment
of the Bombay High Court raises the question of the interpretation of sub-ss.
(3) and (4) of s. 36 of the Facts Act, (LXIII of 1948), (hereinafter called the
Act).
The brief facts necessary for the 656 purpose
are these. The appellant is the occupier of the Gopal Mills Co. Ltd., Broach,
which is a factory as defined in the Act. It appears that there is a pit in the
factory in which dangerous fumes are likely to be present. This pit was
securely covered as required by s. 33(1) of the Act and no one was expected to
go down into the pit for the normal work of the factory as the pit was worked
by gadgets fixed nearby above the ground. It appears, however, that something
went wrong with the machinery inside the pit on July 4, 1955. Fakirji
Dhanjishaw was the person in-charge of those who were working in the
purification plant with which this pit is connected when the accident took
place at about, 9-30 a. m. on July 4, 1955. It seems that when something went
wrong with the machinery inside the pit, a labourer named Melia Dadla was asked
to go down into it to attend to it and he went down without wearing suitable
breathing apparatus and a belt securely attached to a rope, the free end of
which should have been held by a person standing outside the confined space.
The result was that Melia Dadla was seen overcome by poisonous gases and died.
Thereafter Fakirji Dhanjishaw, Maganlal
Gordhandas, Chunilal Bochar and Chhotalal Nathubbai went down into the pit
without wearing breathing apparatus and were overpowered with poisonous gases
and died one after the other. It is not clear when the superior officers in the
mill were informed of this tragedy. But it appears that after the death of
these five persons the Superintendent, Municipal Fire Brigade, was sent for
with breathing apparatus and other appliances and he went down into the pit to
save the dying persons; but be was also attacked by the fumes and became
unconscious. The mill doctor and some other doctors also came but nothing could
be done to revive the five persons who were dead. The matter was reported to
the Inspector of Factories and he went and made enquiries. It was then found
that suitable breathing apparatus, reviving apparatus, belts and ropes were not
available anywhere in the factory and were not kept ready for instant use
beside the confined space. Consequently, 657 the appellant was prosecuted as
the occupier for the breach of s. 36 (3) and (4) of the Act.
The appellant took advantage of s. 101 of the
Act and filed a complaint against the manager S. D. Vashistha and the engineer
H. P. Tripathi. In view of this complaint of the appellant, the first question
that the magistrate had to decide was whether the commission of the offence had
been proved. If the commission of the offence was proved, the magistrate would
have to consider whether the appellant could be discharged from liability if he
proved to the magistrate's satisfaction that he had used due diligence to
enforce the Act and that the other two persons committed the offence in
question without his knowledge, consent or connivance.
In considering the question whether an
offence had been committed, the magistrate had to interpret sub ss. (3) and (4)
of s. 36 of the Act. He was of the view that no offence under s. 36 (3) had
been made out as the prosecution had failed to prove any permission, express or
implied, to Fakirji Dhanjishaw and others to enter the pit. He was further of
the view that no offence under s. 36 (4) had been committed because no
permission under sub-s. (3) having been granted to anybody to enter the pit, it
was not necessary to keep the breathing apparatus etc., near the pit or
anywhere else in the factory. He, therefore, held that no offence had been
committed and acquitted the appellant as well as the manager and the engineer.
There was an appeal by the State of Bombay to
the High Court against the acquittal, of the appellant alone. The High Court
disagreed with the interpretation of sub-ss. (3) and (4) of s. 36 by the
magistrate and held that- " For attracting the application of sub-section
(3) it is not necessary that a positive act of obtaining permission must be
done by a worker or a positive act of granting permission must be done by the
occupier or manager. If the occupier or manager acquiesces in the entry, he
permits the entry. If he connives at the entry, then also he permits the entry.
If he fails to prevent the entry, then also he permits the entry." 658 It
went on to say-- The scheme of the Act, which is a welfare legislation, is to
require an employer to take precautionary measures for safeguarding the lives
of his workers, prudent or imprudent, rash or careful, against all possible
danger while they are working on the premises of the factory." It
therefore held that as the appellant had not taken all reasonable steps to
prevent the workers from entering the pit in case of the machinery getting out
of order, he had failed to prevent the entry of the workers into the pit and
therefore must be held in law to have permitted the entry and committed the
breach of sub. s. (3) of s. 36. As to sub-s. (4) the High Court was of the view
that it was not sufficient compliance with it to provide breathing apparatus
etc. only after coming to know that some person was about to enter the confined
space and that the apparatus must be kept ready for instant use and must be
immediately available near the confined space not only to the person who might
enter the confined space with permission but even to the person who might enter
the confined space without permission. The High Court, therefore, set aside the
acquittal of the appellant and directed that the appellant's complaint against
Vashistha and Tripathi should be first decided by the magistrate, (thus, in
effect, setting aside the acquittal of Vashistha and Tripathi) and thereafter
the magistrate should proceed to decide the case against the appellant in the
light of the law laid down. There was then an application for a certificate to
enable the appellant to appeal to this Court which was rejected. The appellant
then applied to this Court for special leave to appeal which was granted; and
that is how the matter has come up before us.
The relevant part of s. 36 is in these
terms:- " (3) No person in any factory shall enter or be permitted to
enter any confined space such as is referred to in sub- section (1) until all
practicable measures have been taken to remove any fumes which may be present
and to prevent any ingress of fumes and unless either- 659 (a) a certificate in
writing has been given by a competent person, based on a test carried out by
himself, that the space is free from dangerous fumes' and fit for persons to
enter, or (b) the worker is wearing suitable breathing apparatus and a belt
securely attached to a rope, the free end of which is held by a person standing
outside the confined space.
(4) Suitable breathing apparatus, reviving
apparatus and belts and ropes shall in every factory be kept ready for instant
use-beside any such confined space as aforesaid which any person has entered,
and all such apparatus shall be periodically examined and certified by a competent
person to be fit for use; and a sufficient number of persons employed in every
factory shall be trained and practised in the use of all such apparatus and in
the method of restoring respiration.
Taking sub-s. (3) first, the question that
falls for consideration is the meaning of the words " be permitted to
enter ". The contention on behalf of the State before the High Court was
that these words cast an absolute duty on the occupier to prevent the entry of
any person in a pit etc. of the kind mentioned in sub-s. (1) of s. 36 and this
seems to have been accepted by the High Court. Learned counsel for the
appellant, however, urges that in the context of this provision, the duty cast
on the occupier is not absolute and there must be some kind of permission,
whether express or implied, to the person entering the pit etc. before the
occupier is made liable. In other words, it is submitted that it will be for
the court on the facts and circumstances of each case to infer whether there
was permission, express or implied, of the occupier to the person who enters
the pit etc. Mr. Umrigar appearing for the State of Bombay urges before us that
this latter construction would make the provision liable to evasion by the
occupier. According to him, this provision means that whenever anyone enters
such a pit etc. the burden is cast on the employer to show that the entry was
against the occupier's instructions. He even went to the length of saying that
if a worker 660 entered the pit in order to commit suicide, it would still be
for the occupier to show that the entry was against his instructions and that
he did all that he could to prevent it. In this connection he drew our
attention to certain other sections in the Act where similar words are used,
for example, ss. 51, 52, 54, 60, 64, 67, 68, and 71. We do not think it
necessary to consider these other sections in detail. It is enough to point out
that there is one vital difference between the provisions of these other
sections and the provision contained in s. 36(3). Section 36(3) prohibits the
worker from entering the pit etc. while these other sections have no such
prohibition against the worker and cast the entire duty on the employer.
Section 36(3) therefore will have to be construed in the context of the words used
therein. It begins with prohibiting any person from entering any such pit etc.
The primary prohibition therefore is of the person working in' the factory and
others and the effect of this prohibition is worked out in s. 97 of the Act.
Sub-section (1) of s. 97 provides that if a worker employed in a factory
contravenes any provision of this Act imposing any duty or liability on
workers, he shall be punishable with fine. Sub-section (2) of this section then
lays down that if a worker is convicted of an offence under sub-s. (1), the
occupier or manager of the factory shall not be deemed to be guilty of an
offence in respect of that contravention unless it is proved that he fails to
take all reasonable measures for its prevention. Reading s. 36(a) with s. 97,
it is clear that the prohibition of the worker against entering any such pit
etc. is absolute and if any worker enters such a pit etc. he is guilty under s.
97(1). In this case, if the five workers who are dead, were alive, they would
have been guilty under s. 97(1) for contravening s. 36 (3) by entering the pit.
Then s. 97 (2) would come into operation and it would be for the prosecution to
prove that the occupier or the manager had failed to take all reasonable
measures for preventing the entry. The burden thus is on the prosecution to
prove that the occupier or the manager had not taken all reasonable steps for
preventing the entry and not on the occupier or the manager to prove that he
661 had taken all such reasonable steps. The Court will therefore have to
consider all the facts and circumstances in a particular case to see if the
burden has, been discharged by the prosecution. It is in this background that
we have to consider the meaning to be given to the words " be permitted to
enter " appearing in s. 36 (3). It seems to us that in the circumstances
these words do not cast an absolute duty on the employer to prevent the entry
and the mere fact that a person has entered such a pit etc., would not by
itself prove that he bad been permitted to enter. The Court will have to look
into the facts and circumstances of the case to come to the conclusion whether
the person who entered the pit was permitted to do so and mere entry would not
necessarily lead to the conclusion that there was permission to enter, whether
express or implied.
The magistrate in this case seems to have
thought that a positive act of obtaining permission must be done by the worker
or a positive act of granting permission must be done by the occupier or the
manager, though he has not said so in so many words. It is not necessary that
there should be a positive act of obtaining permission by the worker or a
positive act of granting permission by the occupier or the manager. What the
court has to see is whether on the facts and circumstances of a particular case
it will be reasonable to infer that the entry was with permission, whether
express or implied. The High Court also, with respect, seems to have gone too
far on the other side when it said that it was the duty of the employer to take
all the precautionary measures for safeguarding the lives of his workers,
prudent or impruden trash or careful, against all possible danger while they
are working on the premises of the factory.
This would imply that there was an absolute
duty cast on the employer to prevent the entry irrespective of the
considerations that might arise on the facts and circumstances of a particular
case. The true view of s. 36 (3), in our opinion, is that the primary duty is
cast on the worker or any other person prohibiting his entry into any such pit
etc. At the same time the occupier is also liable if his permission 84 662 to
the entry, whether express or implied, can be inferred on the facts and
circumstances of the case; IS but this permission cannot in all cases be inferred
by the mere fact of the entry. The High Court has remanded the case to the
magistrate for retrial and in that retrial the magistrate will proceed to
consider the liability of the occupier in the light of the observations made by
us on the construction of s. 36 (3).
Turning now to sub-section (4), it will be
found that it is in two parts. The first part provides that suitable breathing
apparatus, reviving apparatus, belts and ropes shall in every factory be kept
ready for instant use beside any such confined space as aforesaid which any
person has entered. This to our mind means that if for any reason a person has
to enter such confined space, the apparatus etc., shall be kept ready for
instant use beside such space. The duty for keeping the apparatus ready beside
the space arises only when a person is entering the confined space, obviously
with the permission of the occupier or the manager. We do not think that sub-s.
(4) contemplates that the apparatus etc., shall always be kept ready near the
confined space whether there is any occasion for any person to enter it or not.
The necessity of keeping the apparatus etc: ready, near the confined space
arises when any person is about to enter such space, obviously with the
permission of the employer.
The second part of the section provides that
all such apparatus shall be periodically examined and certified by a competent
person to be fit for use and a sufficient number of persons employed in every
factory shall be trained and practised in the use of all such apparatus and in
the method of restoring respiration. This clearly shows that the apparatus
etc., must always be available in the factory, though it need not be kept near
the confined space till such time as someone is about to enter it. There will
be no possibility of periodical examination and training of sufficient number
of persons in the use of the apparatus unless the apparatus was always
available in the factory.
The duty cast by sub-s. (4) is absolute. So
far as the first part is concerned, the duty of keeping the apparatus 663 ready
for instant use near the confined space arises as soon as a person is about to
enter it, obviously with the permission of the occupier. So far as the second
part is concerned, it is the duty of the occupier to see that the apparatus is
always available in the factory and is periodically examined and certified fit
for -use and a sufficient number of persons are trained in its use. The view
taken by the magistrate of the effect of this section is not correct and the view
taken by the High Court is right except that it is not necessary to keep the
apparatus all the time near the confined space. The High Court has ordered
retrial with respect to the contravention of sub-s. (4) also and the magistrate
who now retries the case will do so in accordance with the construction of the
sub-section given by us. We have carefully refrained from saying anything on
the facts of this case as there is going to be a retrial and it will be for the
magistrate to consider all the facts and circumstances before coming to a
decision one way or the other. The appeal is hereby dismissed.
Appeal dismissed.
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