State of Gujarat Vs. Jethalal
Chelabhai Patel  INSC 243 (6 December 1963)
06/12/1963 SARKAR, A.K.
CITATION: 1964 AIR 779 1964 SCR (5) 801
Factories Act, 1948 (63 of 1948), ss.
21(1)(iv)(c), 92, 101- Dangerous Machine-Inquiry-Absence of fence-Removal by
somebody else, if good defence.
While greasing the spur gear wheel of an oil
mill, one of the hands of a workman got caught and had to be amputated.
It appeared that at the time of the accident
the cover of the spur gear wheel was not there. The respondent, who is the
manager of the mill was prosecuted under s. 92 of the Factories Act for having
failed to comply with s. 21(1) (iv) (c) of the Act. The workman said that the
cover had been removed by the respondent for repairs, while the case of the
respondent was that the workman had himself removed it. The trial Judge was
unable to accept either version and he acquitted the respondent observing that
he could not be held liable if the cover was removed by someone, without his
consent or knowledge. On appeal, the High Court affirmed the acquittal.
Held: (i) The mere fact that someone else had
removed the safeguard without the knowledge, consent or connivance of the
occupier or manager does not provide a defence to him. When the statute says
that it will be his duty to keep a guard in position while the machine is
working and when it appears that he has not done so, it will be for him to establish
that notwithstanding this he was not liable.
(ii) Even where the occupier or manager could
establish that somebody else had removed the fence, he has further to prove
that he exercised due diligence to see that the fence, which under the Act was
his duty to see was kept in position all along, had not been removed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 193 of 1961.
Appeal by special leave from the judgment and
order dated February 9 and 10, 1961, of the Gujarat High Court in Criminal Appeal
No. 367 of 1960.
D.R. Prem, K.L. Hathi and R.H. Dhebar. for
The respondent did not appear.
December 6, 1963. The Judgment of the Court
was delivered by 1/SC1/64-51 802 SARKAR J.-This appeal raises a question under
the Factories Act, 1948. It was unfortunate that there was no appearance on
behalf of the respondent but Mr. Prem appearing in support of the appeal has
placed the matter very fairly before us with all the relevant reported
decisions from the point of view of both the appellant and the respondent. We
are much beholden to him for this assistance.
The respondent is the Manager of an oil mill.
The mill had a spur gear wheel. A workman of the mill while greasing the spur
gear wheel which was then in motion had one of his hands caught in it.
Eventually that hand had to be amputated. It appeared that the spur gear wheel
bad a cover which had bolts for fixing it to the base but at the time of the
accident the cover was not there, having apparently been removed earlier. There
is no evidence to show when it was last in position.
The respondent was prosecuted under s. 92 of
the Act for having failed to, comply with s. 21(1) (iv) (c). The relevant part
of this section is as follows:
S. 21. (1) In every factory the following
(iv) unless they are in such position or of such
construction as to be safe to every person employed in the factory as they
would be if they were securely fenced, the following, namely-
(c) every dangerous part of any other
machinery, shall be securely fenced by safeguards of substantial construction
which shall be kept in position while the parts of machinery they are fencing
are in motion or in use:
Section 92 of the Act provides as follows:
803 S. 92. Save as is otherwise expressly
provided in this Act if in, or in respect of, any factory there is any
contravention of any of the provisions of this Act the occupier or manager of
the factory shall be guilty of an offence and punishable with imprisonment or
with fine There is no dispute that a guard had been put over the spur gear
wheel and it was a proper guard. It is not contended that if it had been there,
then the respondent could be said. to have committed any offence, but it was
The workman said that it had been removed by
the respondent for repairs while the case of the respondent was that the
workman had himself removed it. The learned trial Judge was unable to accept
either version and he acquitted the respondent observing that he could not be
held liable if the cover was removed by someone without his consent or
The learned Judges of the High Court when the
matter came to them in appeal, referred to a very large number of cases, mostly
of the English Courts under the English Factories Act and a few of our High
Courts and from them they deduced the two following principles: (1) Though the
obligation to safeguard is absolute under s. 21(1)(iv)(c) of the Indian Act,
yet it is qualified by the test of foresee ability, and (2) If the 'Safeguard
provided by the employer or manager is rendered nugatory by an unreasonable or
perverted act on the part of the workman, there is no liability of the employer
or manager. With great respect to the learned Judges of the High Court we are
unable to appreciate the relevancy of these two principles to the decision of
the case in hand.
Nor does it seem to us that the learned
Judges of the High Court rested their judgment on any of these principles. We,
therefore, think it unnecessary to notice the cases mentioned in the judgment
of the High Court or discuss the principles to be deduced from them.
804 As the High Court stated, there is no
dispute that the spur gear wheel was a dangerous machine within the meaning of
s. 21(1)(iv)(c). That being so, clearly, there was an obligation to securely
fence it and to see that the fence was "kept in position while the parts
of machinery they are fencing are in motion or in use". Indeed the fact
that the respondent had provided the guard over the machine puts it beyond
doubt, as the High Court observed, that the machine was dangerous within the
meaning of the section. It was not contended that the risk from the unguarded
machine was not a foreseeable risk. No question of the risk not being
foreseeable, therefore, arises in this case nor is this put up by way of a
The High Court proceeded on the assumption
that it had not been proved that the workman had himself removed the guard.
We will also proceed on that assumption. The
High Court held that in a criminal case an accused was not bound to offer any
explanation and if he did and that explanation was not established, that would
not justify his conviction for the offence with which he was charged. This is a
proposition which it is unnecessary to dispute in the present case. The High
Court then observed that s.
21(1)(iv)(c) of the Act contemplated a
default and that default had to be established by the prosecution. It lastly
said that there was nothing in the Act to indicate that the legislature intended
that an occupier or manager must always be on the look out to bring to book
every offender who removed the safeguard furnished by him or that a failure on
his part to do so must entail his conviction. It also observed that the statute
did not require that where the occupier or manager had carried out his
obligation under the section by providing a proper safeguard, he would be
liable if someone else, not known to him, removed it without his knowledge,
consent or connivance. It, therefore, held that as in the present case it could
not be said that either he or the workman had removed the guard, it followed
that someone whom the occupier or the manager could not fix 805 upon had
removed it and that was something which the occupier or manager could not reasonably
be expected to anticipate and he could not be made liable for such removal.
We are unable to accept this view of the
matter. No doubt the default on the part of the person accused has to be
established by the prosecution before there can be a conviction. It has to be
observed that s. 21 (1)(iv)(c) requires not only that the dangerous part of a
machine shall be securely fenced by safeguards but also that the safeguards
"shall be kept in position while the parts of the machinery they are fencing
are in motion or in use". We should have thought that the words
"shall be securely fenced" suggest that the fencing should always be
The statute has however put the matter beyond
doubt by expressly saying that the fencing shall be kept in position while the
machine is working. That is the default that has happened here; the fencing was
not there when the machine had been made to work. This is an admitted fact and
no question of establishing it arises.
Does the mere fact that someone else had
removed the safeguard without the knowledge, consent of connivance of the
occupier or manager always provide a defence to him? We do not think so. When
the statute says that it will be his duty to keep the guard in position when
the machine is working and when it appears that he has not done so, it will be
for him to establish that notwithstanding this tie was not liable. It is not
necessary for us to say that in every case where it is proved that the manager
or occupier had provided the necessary fence or guard but at a particular
moment it appeared that the fence or guard had been removed, he must be held
liable. Suppose the fence for some reason for which the manager or occupier is
not responsible, suddenly breaks down and the machine remains unfenced for
sometime before the owner or occupier found that out and replaced the fence. It
may be that in such a case he cannot be made liable. A statute does 806 not, of
course, require an impossibility of a person. But there is nothing to show that
is the case here. The respondent has given no evidence whatever to show what he
had done to carry out his duty to see that the guard was kept in position when
the machine was working. The onus to prove that was on him because his defence
depended on it.
He has completely failed to discharge that
onus. We, therefore, think that he is liable under s. 92 of the Act for having
failed to carry out the terms of s. 21(1)(iv).
Section 101 of the Act was referred to as
supporting the contention that the liability of an occupier or manager for
failure to observe the terms of the Act was absolute and the only defence
available to him was that provided by it. In our view, it is unnecessary to
deal with that question. It does not arise in the present case, for we find
that the respondent had offered no defence whatever, whether under s. 101 or
otherwise. His only point was that he did not know what happened to the guard
and that, in our opinion, is no defence at all.
We wish, however, to refer to the section for
another purpose. The section states that where an occupier or manager of a
factory is charged with an offence punishable under this Act, he shall be
entitled to have any other person whom he charges as the actual offender
brought before the Court and if he proves to the satisfaction of the Court (a)
that he used due diligence to enforce the execution of the Act, and (b) that
the said other person committed the offence in question without his knowledge,
consent or connivance, then that other person shall be convicted of the offence
and the occupier or the manager shall be discharged.
It will appear, therefore, that even where
the occupier or manager proves that somebody else has removed the fencing
without his knowledge, consent or connivance, that alone would not exempt him
from liability but he has further to prove that he had used due diligence to
enforce the execution of the Act which can only mean, in a case like the
present, that he exercised due diligence 807 to see that the fence which under
the Act it was his duty to see was kept in position all along had not been
removed. It seems to us clear that if it was his duty to exercise due diligence
for the purpose in a case where he could establish that somebody else had
removed the fence, it would be equally his duty to exercise that diligence
where he could not prove who had removed it. If it were not so, the intention
of the Act to give protection to workmen would be wholly defeated.
For these reasons we are unable to agree with
the view of the High Court or the learned trial magistrate. Accordingly we
allow the appeal and set aside the judgment of the Courts below and convict the
respondent under s. 92 for contravening the terms of S. 21(1)(iv)(c). We impose
on him a fine of Rs.200. In default he shall undergo one week's simple imprisonment.