el appearing for the v. Showa Engineering Ltd., Solinghur reported in
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CRL O.P. No.14547 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.10.2024CORAMThe Hon`ble Mr. Justice P.DHANABALCrl. O.P. No.14547 of 2022and Crl. M.P. Nos.8001 and 8003 of 2022Pratik Kumar s/o. Maheswari PrasadOccupier - Wipro Enterprises Private Limited ... Petitioner / Accusedvs.State represented by:-The Deputy Director,Inspector of Factories - 1,Sriperumbudur, Kancheepuram District..... RespondentPRAYER: The Criminal Original petition is filed under Section 482 of Criminal Procedure Code to call for records pertaining to the proceedings in C.C. No.11 of 2024 on the file of the Chief Judicial Magistrate, Kancheepuram and to quash the same.For petitioner:Mr. V. Karthick, Senior Advocate,Mr. Anand Gopalan.For Respondent :Mrs. G.V. Kasthuri,Additional Public Prosecutor,High Court, Madras.ORDER1/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022 The Criminal Original Petition has been filed by the petitioners to quash the proceeings in C.C. No.11 of 2024 pending on the file of the Chief Judicial Magistrate Court, Kancheepuram.2. According to the petitioner, he is the executive Director of M/s. Wipro Enterprises Private Limited, by virture of his designation, petitioner has been nominated as Occupier of the factory. The petitioner has been prosecuted for the alleged violations of the provisions of the Factories Act. The petitioner is a permanent resident of Bangalore and he, as an Occupier, visits the factory only once in a while at Kancheepuram and the local affairs of the factory are atttended to by the Manager as well as by the Shift-in-charge. At the risk of the repetition, the company has been scrupulously following all the safety measures concerning employees of the factory. The plant used to conduct various safety oriented programs for the permanent workmen including trainees. In so far as the factory is concerned, it has a tie up with one BSA Corporation which used to sponsor NEEM trainees to the company which is meant for a period of 3 years. The NEEM trainees would in turn 2/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022get trained under the permanent Staff. There are also shift Engineers in each shop who will man the shifts and supervise the employees. Besides the BSA Corporation who sponsors the NEEM trainees, would conduct orientation programs and instruct the trainees as to do's and dont's in the factory on periodical intervals. While so, on 30.07.2021, one of the NEEM trainee namely Chandru while fixing the hydraulic Cylinder for carrying out testing, noticed leak in the adaptor and quick release coupling, attempted to tighten the coupling and, in the process, got hit by the machine and sustained injury which resulted in fatal. In fact the recourse was to pull the safety pull cord to bring down the pressure before attempting to tighten the quick release coupling. Unfortunately the trainee on account of his negligence and anxiety, attempted to fix the leakage without following standard operating procedures. In respect of the aforesaid incident, the office of the respondent was intimated and inspection was held on 31.07.2021. The respondent inspected the premises of factory on 31.07.2021 and thereafter sent a Show Cause Notice on 03.08.2021 seeking as to why the petitioner should not be prosecuted. The petitioner also gave a detailed reply and in the event of 3/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022any reply being submitted, the respondent should intimate the reasons to the petitioner as to why the reply submitted by the petitioner was not acceptable. Hence, the petitioner is entitled to invoke Section 107 of teh Factories act and file an appeal before the Director of Industrial Safety and Health and Welare, who is the Appellate Authority prescribed under the Factories Act, but, the respondent, without any further notice to the petitioner, has proceeded to file a complaint before the jurisdictional Magistrate seeking to punish the petitioner. Being so, the complaint filed by the respondent is nothing but abuse of process of law and therefore, the present complaint is liable to be quashed.3. The learned counsel appearing for the petitioner would contend that the respondent has filed a complaint as against the petitioner alleging that the provisions of Factories Act have not been followed in respect of safety measures taken by them. In fact, the institution of complaint is an abuse of process of law and power vested on the respondent under the provisions of Factories Act. In any event under the provisions of the Act, the complainant will have to necessarily elaborate the role of occupier / 4/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022Manager in attributing negligence by the employer in order to fix the culpability. In the present case, a reading of the complaint does not disclose any such basic details or information, or allegations attributed to the petitioner. In such circumstances, the complaint deserves to be quashed on the sole ground as it is bereft of details. The basic averments that the petitioner is in charge of and responsible for the conduct of affairs of the company is singularly absent in the complaint. Except for making omnibus allegations, the complaint does not specify any role on the part of the petitioner. Equally the complaint is also silent about the negligence that would be attributed on the part of the petitioner. In the absence of sufficienet averments made in the complaint, the same is liable to be quashed. The complainant also failed to note that the incident occurred on account of negligence of deceased employee neither the petitioner nor its officials can be blamed for the unfortunate death happened to the employee. The trial Court erred in taking cognizance of the complaint more so when the reply of the petitioner has not been rejected by the respondent by a reasoned order. The complainant also failed to consider the reply of the petitioner that the contravention 5/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022pointed out by the complainant in the complaint is either complied or rectified. Hence the complaint pending as against the petitioner is liable to be quashed. 4. The learned counsel appearing for the petitioner also relied on judgment of Inspector of Factories vs. Showa Engineering Ltd., Solinghur reported in 2007 (4) LLN 828 and A. Gowtham Datta vs. State reported in 2017 SCC Online Mad 18593.5. The learned Additional Public Prosecutor appearing for the respondent would contend that the complainant has issued Show Cause Notice and after Show Cause Notice, some of the defects have been complied and some of the defects have not been complied and therefore, the present complaint has been filed as against the petitioner. The petitioner has not followed the provisions of Factories Act and there are contraventions under Section 41 Rule 61E and Section 38 Rule 61(7)(a) of the Factories Act. The petitioner's premises was inspected by the 6/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022concerned officials and on 31.07.2021, one Elangovan has conducted joint inspection. At that time, no machinery Plant or equipment shall be constructed, operated or situated or maintained in any Factory in such a manner as to cause risk of bodily injury. The deceased Chandru was required to work on the JCB Cylinder testing line for carrying out forward static test in the 4th cylinder of station 2 wherein safety fencing with door interlocking system for the entire station and also photo electric sensor inside the station were not provided so as to stop the testing process in case of any human intervention On 30.07.2021, the leakage in between the adopter and male quick release coupling (QRC) was carried out in such an unsafe manner which led to the death of Mr. Chandru. Moreover, in the factory Wipro Enterprises Pvt. Ltd., SIPCOT Iindustrial Park, Irungattukottai, Kancheepuram District, during the joint inspection on 31.07.2021, it was found that, flammable liquids like paints and solvents were stored in large quantities (more than twenty liters) in the paint booth 1 & 2 areas. This is in contravention of the above Section and Rules. Therefore, they lodged the present complaint as against the petitioner and it needs elaborate trial. At this stage, this Court 7/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022need not quash the proceedings and there are prima facie materials available. Therefore, the petition is liable to be dismissed.6. This Court heard both sides and perused the entire materials available on record.7. According to the petitioner, they provided all the safety measures to the factory. It is an admitted fact that on 30.07.2021, one of the NEEM trainee Chandru, while fixing the hydraulic cylinder for carrying out testing, noticed leak in the adaptor and quick release coupling, attempted to tighten the coupling and, in the process, got hit by the machine and sustained injuiry which resulted in fatal. According to the petitioner, the above said Chandru himself, without following the safety measures, done the act and thereby, he sustained injury and thereaftre died. According to the respondent, on 31.07.2021, the inspection was conducted and at that time, they noticed that due to the heavy pressure developed inside the hydraulic cylinder and the hydraulic hose along with male quick release coupling (QRC) was detached from 8/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022the hydraulic cylinder which hit the operator, Chandru, on his trunk. In fact, the worker Chandru was required to work on the JCB cylinder testing line for carrying out forward static test in the 4th cylinder of Station 2 wherein safety fencing with door interlocking system for the entire station and also photo electric sensor inside the station were not provided so as to stop the testing process in case of any human intervention, which is the contravention of the provisions of the Factory Act. 8. The said fact and the allegations levelled against the petitioner cannot be decided at this stage and it needs elaborate trial. Moreover, on the date of inspection, the authorities also found that flammable liquids like paints and solvents were stored in large quantitites (more than twenty liters) in the paint booth 1 and 2 areas. Therefore, it needs elaborate trial and at this stage, this Court cannot invoke the provisions under Section 482 of Criminal Procedure Code. As far as the judgments relied on by the learned counsel appearing for the petitioner are concerned, they will not be applicable to the present facts of the case, 9/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022because, in this case, according to the petitioner, they followed rules and regulations and provided safety measures as per the provisions of Factories Act, but according to the respondent / complainant, the petitioner has not provided adequate safety measures in the Factory as per rules. Therefore, it needs elaborate trial and hence this Court is of the opinion that this petition has no merits and deserves to be dismissed.9. Accordingly, the Criminal Original Petition is dismissed. No costs. The connected miscellaneous petitions are closed. 21.10.2024[2/2] index: Yes/NoInternet: Yes/NoSpeaking/Non Speaking ordermjs To1. The Chief Judicial Magistrate, Kancheepuram 2. The Public Prosecutor, High Court, Madras.3. The Deputy Director, Inspector of Factories - 1, Sriperumbudur, Kancheepuram District.10/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022P.DHANABAL ,J mjs CRL. O.P. No.14547 of 2022 21.10.202411/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022[2/2]12/12
CRL O.P. No.14547 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.10.2024CORAMThe Hon`ble Mr. Justice P.DHANABALCrl. O.P. No.14547 of 2022and Crl. M.P. Nos.8001 and 8003 of 2022Pratik Kumar s/o. Maheswari PrasadOccupier - Wipro Enterprises Private Limited ... Petitioner / Accusedvs.State represented by:-The Deputy Director,Inspector of Factories - 1,Sriperumbudur, Kancheepuram District..... RespondentPRAYER: The Criminal Original petition is filed under Section 482 of Criminal Procedure Code to call for records pertaining to the proceedings in C.C. No.11 of 2024 on the file of the Chief Judicial Magistrate, Kancheepuram and to quash the same.For petitioner:Mr. V. Karthick, Senior Advocate,Mr. Anand Gopalan.For Respondent :Mrs. G.V. Kasthuri,Additional Public Prosecutor,High Court, Madras.ORDER1/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022 The Criminal Original Petition has been filed by the petitioners to quash the proceeings in C.C. No.11 of 2024 pending on the file of the Chief Judicial Magistrate Court, Kancheepuram.2. According to the petitioner, he is the executive Director of M/s. Wipro Enterprises Private Limited, by virture of his designation, petitioner has been nominated as Occupier of the factory. The petitioner has been prosecuted for the alleged violations of the provisions of the Factories Act. The petitioner is a permanent resident of Bangalore and he, as an Occupier, visits the factory only once in a while at Kancheepuram and the local affairs of the factory are atttended to by the Manager as well as by the Shift-in-charge. At the risk of the repetition, the company has been scrupulously following all the safety measures concerning employees of the factory. The plant used to conduct various safety oriented programs for the permanent workmen including trainees. In so far as the factory is concerned, it has a tie up with one BSA Corporation which used to sponsor NEEM trainees to the company which is meant for a period of 3 years. The NEEM trainees would in turn 2/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022get trained under the permanent Staff. There are also shift Engineers in each shop who will man the shifts and supervise the employees. Besides the BSA Corporation who sponsors the NEEM trainees, would conduct orientation programs and instruct the trainees as to do's and dont's in the factory on periodical intervals. While so, on 30.07.2021, one of the NEEM trainee namely Chandru while fixing the hydraulic Cylinder for carrying out testing, noticed leak in the adaptor and quick release coupling, attempted to tighten the coupling and, in the process, got hit by the machine and sustained injury which resulted in fatal. In fact the recourse was to pull the safety pull cord to bring down the pressure before attempting to tighten the quick release coupling. Unfortunately the trainee on account of his negligence and anxiety, attempted to fix the leakage without following standard operating procedures. In respect of the aforesaid incident, the office of the respondent was intimated and inspection was held on 31.07.2021. The respondent inspected the premises of factory on 31.07.2021 and thereafter sent a Show Cause Notice on 03.08.2021 seeking as to why the petitioner should not be prosecuted. The petitioner also gave a detailed reply and in the event of 3/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022any reply being submitted, the respondent should intimate the reasons to the petitioner as to why the reply submitted by the petitioner was not acceptable. Hence, the petitioner is entitled to invoke Section 107 of teh Factories act and file an appeal before the Director of Industrial Safety and Health and Welare, who is the Appellate Authority prescribed under the Factories Act, but, the respondent, without any further notice to the petitioner, has proceeded to file a complaint before the jurisdictional Magistrate seeking to punish the petitioner. Being so, the complaint filed by the respondent is nothing but abuse of process of law and therefore, the present complaint is liable to be quashed.3. The learned counsel appearing for the petitioner would contend that the respondent has filed a complaint as against the petitioner alleging that the provisions of Factories Act have not been followed in respect of safety measures taken by them. In fact, the institution of complaint is an abuse of process of law and power vested on the respondent under the provisions of Factories Act. In any event under the provisions of the Act, the complainant will have to necessarily elaborate the role of occupier / 4/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022Manager in attributing negligence by the employer in order to fix the culpability. In the present case, a reading of the complaint does not disclose any such basic details or information, or allegations attributed to the petitioner. In such circumstances, the complaint deserves to be quashed on the sole ground as it is bereft of details. The basic averments that the petitioner is in charge of and responsible for the conduct of affairs of the company is singularly absent in the complaint. Except for making omnibus allegations, the complaint does not specify any role on the part of the petitioner. Equally the complaint is also silent about the negligence that would be attributed on the part of the petitioner. In the absence of sufficienet averments made in the complaint, the same is liable to be quashed. The complainant also failed to note that the incident occurred on account of negligence of deceased employee neither the petitioner nor its officials can be blamed for the unfortunate death happened to the employee. The trial Court erred in taking cognizance of the complaint more so when the reply of the petitioner has not been rejected by the respondent by a reasoned order. The complainant also failed to consider the reply of the petitioner that the contravention 5/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022pointed out by the complainant in the complaint is either complied or rectified. Hence the complaint pending as against the petitioner is liable to be quashed. 4. The learned counsel appearing for the petitioner also relied on judgment of Inspector of Factories vs. Showa Engineering Ltd., Solinghur reported in 2007 (4) LLN 828 and A. Gowtham Datta vs. State reported in 2017 SCC Online Mad 18593.5. The learned Additional Public Prosecutor appearing for the respondent would contend that the complainant has issued Show Cause Notice and after Show Cause Notice, some of the defects have been complied and some of the defects have not been complied and therefore, the present complaint has been filed as against the petitioner. The petitioner has not followed the provisions of Factories Act and there are contraventions under Section 41 Rule 61E and Section 38 Rule 61(7)(a) of the Factories Act. The petitioner's premises was inspected by the 6/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022concerned officials and on 31.07.2021, one Elangovan has conducted joint inspection. At that time, no machinery Plant or equipment shall be constructed, operated or situated or maintained in any Factory in such a manner as to cause risk of bodily injury. The deceased Chandru was required to work on the JCB Cylinder testing line for carrying out forward static test in the 4th cylinder of station 2 wherein safety fencing with door interlocking system for the entire station and also photo electric sensor inside the station were not provided so as to stop the testing process in case of any human intervention On 30.07.2021, the leakage in between the adopter and male quick release coupling (QRC) was carried out in such an unsafe manner which led to the death of Mr. Chandru. Moreover, in the factory Wipro Enterprises Pvt. Ltd., SIPCOT Iindustrial Park, Irungattukottai, Kancheepuram District, during the joint inspection on 31.07.2021, it was found that, flammable liquids like paints and solvents were stored in large quantities (more than twenty liters) in the paint booth 1 & 2 areas. This is in contravention of the above Section and Rules. Therefore, they lodged the present complaint as against the petitioner and it needs elaborate trial. At this stage, this Court 7/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022need not quash the proceedings and there are prima facie materials available. Therefore, the petition is liable to be dismissed.6. This Court heard both sides and perused the entire materials available on record.7. According to the petitioner, they provided all the safety measures to the factory. It is an admitted fact that on 30.07.2021, one of the NEEM trainee Chandru, while fixing the hydraulic cylinder for carrying out testing, noticed leak in the adaptor and quick release coupling, attempted to tighten the coupling and, in the process, got hit by the machine and sustained injuiry which resulted in fatal. According to the petitioner, the above said Chandru himself, without following the safety measures, done the act and thereby, he sustained injury and thereaftre died. According to the respondent, on 31.07.2021, the inspection was conducted and at that time, they noticed that due to the heavy pressure developed inside the hydraulic cylinder and the hydraulic hose along with male quick release coupling (QRC) was detached from 8/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022the hydraulic cylinder which hit the operator, Chandru, on his trunk. In fact, the worker Chandru was required to work on the JCB cylinder testing line for carrying out forward static test in the 4th cylinder of Station 2 wherein safety fencing with door interlocking system for the entire station and also photo electric sensor inside the station were not provided so as to stop the testing process in case of any human intervention, which is the contravention of the provisions of the Factory Act. 8. The said fact and the allegations levelled against the petitioner cannot be decided at this stage and it needs elaborate trial. Moreover, on the date of inspection, the authorities also found that flammable liquids like paints and solvents were stored in large quantitites (more than twenty liters) in the paint booth 1 and 2 areas. Therefore, it needs elaborate trial and at this stage, this Court cannot invoke the provisions under Section 482 of Criminal Procedure Code. As far as the judgments relied on by the learned counsel appearing for the petitioner are concerned, they will not be applicable to the present facts of the case, 9/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022because, in this case, according to the petitioner, they followed rules and regulations and provided safety measures as per the provisions of Factories Act, but according to the respondent / complainant, the petitioner has not provided adequate safety measures in the Factory as per rules. Therefore, it needs elaborate trial and hence this Court is of the opinion that this petition has no merits and deserves to be dismissed.9. Accordingly, the Criminal Original Petition is dismissed. No costs. The connected miscellaneous petitions are closed. 21.10.2024[2/2] index: Yes/NoInternet: Yes/NoSpeaking/Non Speaking ordermjs To1. The Chief Judicial Magistrate, Kancheepuram 2. The Public Prosecutor, High Court, Madras.3. The Deputy Director, Inspector of Factories - 1, Sriperumbudur, Kancheepuram District.10/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022P.DHANABAL ,J mjs CRL. O.P. No.14547 of 2022 21.10.202411/12 https://www.mhc.tn.gov.in/judis CRL O.P. No.14547 of 2022[2/2]12/12