Allowed

Ajit Jhunjhunwala v. the State of Jharkhand

Jharkhand HC3 May 2019Cr.M.P./355/2019

Case brief

AI extract

What is this about?

This petition challenged the validity of a complaint case lodged against petitioners for factory safety violations. The court held that the Factory Inspector failed to serve the mandatory notice under Section 40(2) of the Factories Act, 1948, requiring occupiers to cure deficiencies before lodging a complaint. Consequently, the entire criminal proceeding was quashed.

What did the court decide?

The entire criminal proceedings, including the order taking cognizance dated 15.02.2016, are quashed. The petition is allowed.

Ajit Jhunjhunwala Vs the State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.355 of 2019

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1. Ajit Jhunjhunwala 2. Rahat Ali …… Petitioners

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Versus

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1. The State of Jharkhand 2. Vinay Kumar ….. Opp. Parties

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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA

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For the Petitioners : Mr. Sumeet Gadodia, Advocate Ms. Aakansha Mittal, Advocate For the State : Mr. Suraj Verma, A.P.P ---------

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04/Dated: 3rd May, 2019

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1. Having heard the learned counsels for the parties and on perusal of the counter affidavit, it is evident that the inspection was conducted on 28.12.2015 and the Factory Inspector had found deficiencies in the factory premises of the petitioners/ occupiers/ managers, which have been enumerated in the prosecution report. Admittedly, no notice, as required, as per Section 40(2) of the Factories Act, 1948 (in short 'the Act, 1948' ), was served upon the petitioners for curing the deficiencies which was founded by the team led by the Factory Inspector. Without any notice, as contemplated under Section 40(2) of the Act, 1948 the complaint was lodged, being Complaint Case No.G.O.C.R. Case No.3 of 2016, for the violation of the provisions of the Act, 1948 and the provisions of the Jharkhand (Bihar) Factories Rules, 1950 (in short 'the Rules, 1950' )

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2. In this petition, certain photographs have been annexed by the petitioners in support of the contention that the petitioners are carrying out modernization of the plant and are in the process of implementing the required safety measures for the workers and for operation of the equipment and machinery in terms of the mandated provisions of the Act, 1948 and the Rules, 1950.

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3. The only question which arises for consideration in the present petition is whether the Factory Inspector has followed the procedure and provisions of the Act, before lodging the complaint case.

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For better appreciation, it is pertinent to take note of provisions of Sections 40 of the Act, 1948, which reads as under :-

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“40 If it appears to the Inspector that nay building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it is dangerous to human life or safety, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures which in his opinion should be adopted, and requiring them to be carried out before a specified date.

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40(2) If it appears to the Inspector that the use of any building or part of a building or any part of the ways, machinery or plant in a factory involves imminent danger to human life or safety, he may serve on the occupier or manager or both of the factory an order in writing prohibiting its use until it has been properly repaired or altered.”

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A bare perusal of Section 40 of the Act, 1948, discloses that if on inspection of the factory or plant, it is noticed that any part of the machinery or any equipment which is dangerous to human life or safety, have not been attended to, or necessary protection has not been provided to the workers or the labourers, then the Factory Inspector may serve a notice upon the manager/ occupier or both of the factory in writing, specifying the measures, which, in his opinion, should be adopted for curing the said deficiencies within the specified date.

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The interpretation of the language and expression reveals that the Factory Inspector is required to point out the deficiencies and the measures which, in his opinion, is required to be taken by the occupier/ manager for curing the said deficiencies. The intent and object is to ensure the safety of the workers and the labourers and if the deficiencies are not cured then recourse is to be taken for prosecuting the occupier or the manager or both of the factory. 4. In the counter affidavit it is admitted by the State that no notice was served on the petitioners with respect to the deficiencies found by the Inspection Team. Admittedly the complaint has been lodged without following the procedure as enshrined under Section 40(2) of the Act. Since the opportunity for curing the deficiency has not been provided to the occupiers, therefore, the lodging of the complaint case

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is not in accordance with the provisions of the Act. Therefore, the entire criminal proceedings including the order taking cognizance dated 15.02.2016, passed by the learned SubDivisional Judicial Magistrate, Madhupur, in connection with the Complaint Case No.G.O.C.R. Case No.03 of 2016, corresponding to T.R. No.928 of 2018 is, hereby, quashed.

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5. The Factory Inspector can carry out a fresh inspection of the factory premises and if any deficiencies in terms of the Act, 1948 and the Rules, 1950, are found, then he shall serve the required notice upon the occupier/ manager of the factory for adopting measures for removing the deficiencies within the specified date. The specified date shall be within a reasonable time, and if the deficiencies are not removed the Factory Inspector can pass necessary orders in accordance with law.

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6. With the said observation and direction, the criminal miscellaneous petition stands allowed.

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(AMITAV K. GUPTA, J.)

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Chandan/-

Ajit Jhunjhunwala v. the State of Jharkhand

Case brief

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Ajit Jhunjhunwala v. the State of Jharkhand

Case brief

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