D. Bhem Singh Melchisidec v. Inspector of Factories, Ambattur Region, Ambattur, Chennai 600 058

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.08.2009CORAM:THE HONOURABLE MR.JUSTICE C.S.KARNANCrl.O.P.No. 18990 of 2007andM.P.No. 1 of 2007D. Bhem Singh Melchisidec.. Petitioner/vs/Inspector of Factories, Ambattur Region, Ambattur, Chennai 600 058.. RespondentPetition filed under Section 482 Cr.P.C to call for the records in C.C.No.37 of 2007 on the file of the Chief Judicial Magistrate, Thiruvallur and to quash the same. For Petitioner : Mr. GuptaFor Respondent : Mr.R. Muniapparaj Govt. Advocate (Crl.side) ORDERThe petitioner has filed the above criminal original petition18990 of 2007 to call for the records in C.C.No.37 of 2007 on the file of the Chief Judicial Magistrate, Tiruvallur and to quash the same.

The Respondent/Inspector of Factories, Ambattur Region, Ambattur, Chennai–600 058 has preferred the complaint in C.C.No.37 of2007 on the file of Chief Judicial Magistrate, Tiruvallur as against the petitioner for an alleged offence under Section 112 r/w Rule 16and 68(1) of the Factories Act read with Tamil Nadu Factories Rules,1950 and for offences under Section 87 read with Rule 95, Chapter 20Clause-I of the Factories Act read with Tamil Nadu Factories Rules,1950. The charges against the petitioner are that on inspection of the said petitioner's factory on 7.11.2006, it has been observed by the complainant that a canteen is run in the factory at Ambattur and the accused petitioner is the manager, that the permanent workmen arecharged Rs.30/- per month whereas the contract labourers have been charged Rs.5/- per day; that the food has not been supplied in the canteen based on a common price list and that it amounts to an https://hcservices.ecourts.gov.in/hcservices/ offence under Section 112 read with Rule 16 and Rule 68 (1) of the Factories Act, 1948, read with the Tamil Nadu Factories Rules, 1950.It is further submitted that the petitioner has not installed anefficient exhaust draught for removal of asbestos dust from the factory premises. Subsequent to this a show cause notice was issued to the petitioner on 12.12.2006, wherein it was stated in Point No.9of the show cause notice that all the Dust Collectors have not been examined properly and further they have not been tested by acompetent person. Further, it is alleged that when the Inspector had asked for the relevant records, regarding examination and testing of the dust collectors, the said records were not shown to him.

The petitioner has contended that as per Rule 68 of the TamilNadu Factories Rules, 1950, it would clearly show that the Rule only provides that food, drinks and other items served in the canteenshall be served on a non-profit basis and the price charged shall be subject to the approval of the canteen management committee and in the event the committee does not approve the price list, the price list should be sent to the Chief Inspector of Factories for approval.

The petitioner has contended that there is no prohibition in Rule 68 (1) of the Tamil Nadu Factories Rules, 1950 for charging different rates for direct workmen and contract labourers; that the respondent /complainant had failed to see that the charges levied for direct workmen is in terms of the Settlement under Section 12(3)of the Industrial Disputes Act, 1947 entered into between the recognised Union and the management and the charges to be levied for availing canteen facilities was fixed as a package deal along with other emoluments, that when the direct employees are entitled to unlimited food without any restriction for breakfast, lunch, tea, snacks and dinner, no violation of Rule 68(1) could be said to have been made out. The petitioner has further alleged that the responsibility for providing the conditions of service and other facilities and welfare of the contract labourers is on the contractor in terms of the Contract Labour (Regulation & Abolition ) Act, 1970;as per Section 16(1)(c) of the said Act, the responsibility to provide canteen facilities will be on the contractor only if the contractor employs 100 or more workmen in which case he shall provide and maintain canteen for the use of such contract Labourers. Hence, the petitioner has contended that there has been no violation of Rule 68 (1) of the Tamil Nadu Factories Rules, 1950.

Further, the petitioner has contended that the respondent has only complained that an efficient exhaust draught for removal of asbestos dust from the factory premises has not been installed. Thepetitioner has alleged that no tests were made to determine the presence of asbestos dust and to ascertain whether it was in excess of prescribed limits. As such, no offence has been made out in the allegation and hence the complaint has to be quashed. The petitioner has further claimed that record of results monitoring the asbestos https://hcservices.ecourts.gov.in/hcservices/ fibre in air has been maintained and entered into a special register for this purpose. Further, in support of his petition, the petitioner has enclosed consent orders issued in order No.15363 and19311 from Pollution Control Board.

Considering the facts and circumstances of the case, this court takes serious view about the complaint in the show cause notice of the complainant that the dust collectors have not been periodically checked every year and that the records pertaining to the said testing was not produced during the time of inspection. But, the petitioner has maintained in his reply to the show cause notice in point No.9, that the register containing the details of testing is available for scrutiny and as such no violation has been made periodically as against Tamil Nadu Factory Rules 1950. Furtherconsent orders issued by Tamil Nadu Pollution Control Board has been enclosed.

The complaint in C.C.No. 37 of 2007 in respect of Charge No.2 is therefore quashed. Regarding Charge No.1, the petitioner has alleged that the rate for food fixed for direct workmen was in terms of the settlement under Section 12(3) of the Industrial Disputes Act,1947 entered into between the recognised Union and the management and the charges to be levied for availing canteen facilities was fixed asa package deal along with other emoluments; when the direct employees are entitled to unlimited food without any restriction for breakfast, lunch, tea, snacks and dinner, this Court feels that there is adiscrimination between direct workmen and contract labourers. Butboth the workers work in the same factory and take food in the same canteen. There can be difference in the salaries paid to direct workmen and contract labourers as this is not violative of Article 14of the Constitution, but there should not be a discrimination, on prices paid for the same type of food between the two categories of workmen.

The contract labourer is also entitled to get the same food at the same price, as the direct workmen in the same canteen as otherwise it is violative of Article 14 of the Constitution. With the above observation, Charge No.1 is ordered and to be followed by the management.8. Therefore, the C.C.No. 37 of 2007 on the file of ChiefJudicial Magistrate, Tiruvallur is closed, with the above observations. Accordingly, the Criminal Original Petition No. 18990of 2007 is disposed of. Consequently, connected MiscellaneousPetition is closed.mps/mraSd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Chief Judicial Magistrate, Thiruvallur.2. The Inspector of Factories, Ambattur Region, Ambattur, Chennai 600 0583. The Public Prosecutor, High Court, Madras-104.Crl.O.P.No. 18990 of 2007andM.P.No. 1 of 2007akr(co)ar/29.10.2009.