Leave granted in both the special leave petitions.
The controversy arising for adjudication emerges from the
provisions of the Factories Act, 1948 (hereinafter referred to as '
the Act'), and the Bihar Factories Rules, 1950 (as applicable to
the State of Jharkhand). Insofar as the alleged violations
committed by the appellants are concerned, a summary of the same stands recorded in paragraphJUDGMENT3 of the impugned judgment, which is
extracted hereunder:
“3. It appears that an inspection carried out in
the Growth Shop of M/s Tata Steel Limited on
14.09.2013 and in course of inspection, it was
found that in Fabrication Yard No.1 about 100
numbers of contract labourers engaged. However, on
inquiry, it came to the notice of the Inspecting
Team that though the Management took overtime
service from them, but in terms of Factories Rules,
1950 (Form-10A) overtime slip not provided to them,
which is violative of Rule 103A of the Factories
Rules, 1950. The Inspecting Team further found
that the contract labourers were not provided with
leave book in Form-15 of the Factories Rules, which
is violative of Rule 88 of Jharkhand Factories
Rules, 1950. It is further alleged that on
inspection of canteen, the following shortcomings
defected:
(a) There is no partition for the female
workers in the dining hall and service counter.
(b) Doors and windows of the canteen are
not fly proof.
(c) Menu Chart, rate and the names of
members Canteen Managing Committee has not
disclosed on the board.
(d) for washing of utensils no arrangement
of hot water has been made.”
Based on the above allegations, cognizance was taken
against the occupier – Hemant Madhusudan Nerurkar (the appellant in
Criminal Appeal No. 442 of 2016 - arising out of SLP(Criminal) No.
6410 of 2015), and the manager – Rupam Bhaduri ( the appellant in
Criminal Appeal No. 443 of 2016 - arising out of SLP(Criminal) No.
6406 of 2015).
Keeping in mind the apparently trivial issues, on which
proceedings were taken out against the appellants, this Court on
the first date of hearing, i.e., on 14.08.2015, recorded the following order: JUDGMENT
“Heard Mr. K.V. Vishwanathan, learned senior
counsel for the petitioner and Mr. Tapesh Kumar
Singh, learned Standing Counsel for the State of
Jharkhand.
Having heard learned counsel for the
parties, it is directed that the concerned
Inspector shall verify the factory premises and
find out whether the defects pointed out by him
have been rectified or not.
List the matter in the first week of
September, 2015.
The Registry is directed to reflect the name
of Mr. Tapesh Kumar Singh in the Cause List on the
next date of hearing.”
A perusal of the above order reveals, that the entire purpose of
passing the same, was to ensure that violations if any are
rectified. It seems, that the aforesaid course of action was
taken on the basis of the decision rendered by this Court in the
Delhi Cloth and General Mils Co. Ltd. vs. The Chief Commissioner,
Delhi and others, reported in (1970) 2 SCC 172, for the reason,
that the appellants asserted that they needed to have been afforded
an opportunity to cure the defects and irregularities found during
the course of inspection, and only if they had failed to abide by
the provisions of the Factories Act, 1948 and the Rules, it would
be open to the authorities to proceed against the appellants.
After 14.08.2015, the matter came up for consideration on
30.11.2015, on which date the motion Bench passed the following
order:
“It is submitted by learned counsel for the
petitioner that the petitioner has removed all the
defects pertaining to infrastructure but two
defects pertaining to contract labour are not yet been removed because the burden lies on the
contractor under the law.
Mr. Sinha, learned senior counsel along with Mr.
Tapesh Kumar Singh, learned counsel for the State
shall obtain instructions in this regard.
Let the mater be listed in the third week of
January, 2016.”
A perusal of the above order reveals, that two defects pertaining
to contract labour had not been removed. Insofar as the instant
aspect of the matter is concerned, it has been the submission of
the learned counsel for the appellants, that these two allegations
leveled against the appellants, were the responsibility of the
contractor who had provided the contract labour. And, not of the
appellants.
Lastly, the matter came up for consideration on
27.4.2016, when this Court ordered as under:
“Learned counsel for the petitioner(s) states, that
the violation with reference to the contract
labourers, depicted in paragraph 3 of the impugned
judgment, will be rectified within four days from
today, and that the matter may be taken up for
hearing again on 4.5.2016.
List again on 4.5.2016.”
In compliance with the directions issued by the motion
Bench order dated 27.4.2016, an affidavit has been filed on behalf
of both the appellants, affirming that the two defects pertaining
to the contract labour have also been rectified.
Given the aforesaid factual position, the question which
arose for consideration is, whether the appellants could still be
punished under Section 92 of the Act, which provides as under:
“92. General penalty for offences – Save as is otherwise expressly provided in this Act and
subject to the provisions of Section 93, if in, or
in respect of, any factory there is any
contravention of any of the provisions of this Act
or of any rules made thereunder or of any order in
writing given thereunder, the occupier and manager
of the factory shall each be guilty of an offence
and punishable with imprisonment for a term which
may extend to two years or with fine which may
extend to one lakh rupees or with both, and if the
contravention is continued after conviction, with a
further fine which may extend to one thousand
rupees for each day on which the contravention is
so continued:
Provided that where contravention of any of the
provisions of Chapter IV or any rule made
thereunder or under section 87 has resulted in an
accident causing death or serious bodily injury,
the fine shall not be less than twenty five
thousand rupees in the case of an accident causing
death, and five thousand rupees in the case of an
accident causing serious bodily injury.
Explanation – In this section and in section 94
“serious bodily injury” means an injury which
involves, or in all probability will involve, the
permanent loss of the use of, or permanent injury
to, any limb or the permanent loss of, or injury
to, sight or hearing, or the fracture of any bone,
but shall not include, the fracture of bone or
joint (not being fracture of more than one bone or
joint) of any phalanges of the hand or foot.”
Insofar as the seriousness of the issues is concerned,
learned counsel for the State of Jharkhand, Mr. Tapesh Kumar Singh,
vehemently contends, that the violations committed at the hands of
the appellants should not be termed as trivial. It was submitted,
that the enactment under reference has a laudable role, inasmuch
as, the same extends to ensure due facilities to the labour engaged
in factories, and provides measures to regulate emoluments of
factory employees. In this behalf, learned counsel for the
respondents has placed reliance on a decision of this Court rendered in J.K. Industries Limited and others vs. Chief Inspector
of Factories and Boilers and others, reported in (1996) 6 SCC 665,
and placed reliance on the following observations recorded
thereunder:
“40. In keeping with the aim and object of the
Act which is essentially to safeguard the
interests of workers, stop their exploitation,
and take care of their safety, hygiene and welfare
at their place of work, numerous restrictions
have been enacted in public interest in the Act.
Providing restrictions in a Statute would be a
meaningless formality unless the statute also
contains a provision for penalty for the breach of
the same. No restriction can be effective
unless there is some sanction compelling its observance and a provision for imposition of penalty for breach of the obligations under the Act or the rules made thereunder is a concomitant and necessary incidence of the restrictions. Such a provision is contained in Section 92 of the Act, which contains a general provision for penalties for offences under the Act for which no express provision has been made elsewhere and seeks to lay down uniform penalty for all or any of the offences committed under the Act. The offences under the Act consist of contravention of (1) any provision of the Act; (2) any rules framed thereunder; and (3) any order in writing made thereunder. It comprises both acts of omission and commission. The persons punishable under the Section are occupiers and managers, irrespective of the question as to who the actual offender is. The provision, is in consonance with the scheme of the Act to reach out to those who have the ultimate control over the affairs of the factory to see that the requirements for safety and welfare of the employees are fully and properly carried out besides carrying out various duties and obligations under the Act. Section 92 contemplates a joint liability of the occupier and the manager for any offence committed irrespective, of the fact as to who is directly responsible for the offence. The fact that the notified/identified director is ignorant about the 'management' of the factory which has been entrusted to a manager or some other employee and is himself not responsible for the contraventioncannot absolve him of his liability. The identified /notified director is held vicariously liable for the contravention of the provisions of the Act, the rules made thereunder or of any order made in writing under it for the offender company, which is the occupier of the factory.
41. Mr. Jain, Mr. Nariman and Mr. Tripathi, appearing for the appellants, however, argued that since Section 92 imposes a liability for imprisonment and/or fine, both on the occupier (the notified director) and the manager of the factory, jointly and severally, for the contravention of any of the provisions of the Act or any rule made thereunder or of any order in writing given thereunder, irrespective of the fact whether the occupier (the notified
director) or manager, had any mens-rea in respect of that contravention or that the contravention was not committed by him or was committed by any other person in the factory without his knowledge, consent or connivance, it is an unreasonable restriction. Learned counsel argued that in criminal law, the doctrine of vicarious liability is unknown and if a director is to be punished for some thing of which he is not actually guilty, it would violate his fundamental right as enshrined in Article 21 of the Constitution. It was urged that on account of advancement in science and technology, most of the companies, appoint professionally qualified men to run the factories and nominate such a person to be the 'occupier' of the factory and make him responsible for proper implementation of the provisions of the Act and it would, therefore, be harsh and unreasonable to hold any director of the company, who may be wholly innocent, liable for the contraventions committed under the Act etc. when he may be totally ignorant of what was going on in the factory, having vested the control of the affairs of the factory to such an officer or employee, by ignoring the liability of that officer or employee. The argument is emotional and attractive but not sound.
42. The offences under the Act are not a part of general penal law but arise from the breach of a duty provided in a special beneficial social defence legislation, which creates absolute or strict liability without proof of any mens rea. The offences are strict statutory offences for which establishment of mens rea is not anessential ingredient.JUDGMENTThe omission or commission of the statutory breach is itself the offence. Similar type of offences based on the principle of strict liability, which means liability without fault or mens rea, exist in many statutes relating to economic crimes as well as in laws concerning the industry, food adulteration, prevention of pollution etc. In India and abroad. 'Absolute offences' are not criminal offences in any real sense but acts which are prohibited in the interest of welfare of the public and the prohibition is backed by sanction of penalty. Such offences are generally knows as public welfare offences. A seven Judge Bench of this Court in R.S. Joshi Vs. Ajit Mills (AIR 1977 (SC), 2279, at page 2287: SCC p. 110, para 19):
"Even here we may reject the notion that a
penalty or a punishment cannot be cast in
the form of an absolute or no-fault liability
but must be proceeded by mens rea. The
classical view that ' no mens rea no crime'
has long ago been eroded and several laws
in India and abroad, especially regarding
economic crimes and departmental
penalties, have created severe
punishments even where the offences have been
defined to exclude mens rea. Therefore, the
contention that Section 37(1) fastens a
heavy liability regardless or fault has no
force......"
43. What is made punishable under the Act
is the 'blameworthy' conduct of the occupier which
resulted in the commission of the statutory
offence and not his criminal intent to commit
that offence. The rule of strict liability is
attracted to the offences committed under the Act
and the occupier is held vicariously liable along
with the Manager and the actual offender, as the
case may be. Penalty follows actus reus, mens-rea
being irrelevant.”
In view of the above declaration by this Court, we are of the view,
that it is not possible for us to interfere with the impugned order
passed by the High Court, wherein the prayer made by the appellants
for quashing the proceedings initiated against them, was declined. JUDGMENT We therefore hereby confirm the same.
Despite our above conclusion, learned counsel for the
appellants points out, that the factual position is clear, and
that, rather than requiring the appellants to face a protracted
trial, this Court may consider the appropriateness of imposing a
reasonable punishment on the appellants, by accepting the aforesaid
violations , summarised in paragraph 3 of the impugned order.
Learned counsel for the respondents – State of Jharkhand,
states that he has no objections to the suggestion made by the
learned counsel for the appellants.
Having given our thoughtful consideration to the
allegations levelled against the appellants, we are satisfied, that
in terms of the mandate of section 92 of the Act, ends of justice
would be met, if a penalty of Rs.50,000/- each is imposed on the
appellants. Ordered accordingly. The aforesaid amount of penalty
shall be deposited by the appellants before the trial Court, within
four weeks from today.
The instant order shall also dispose of the criminal
proceedings against the appellants in G.O. Case No. 252 of 2013,
pending before the Judicial Magistrate, First Class, Seraikella,
after the penalty amount is deposited by the appellants before the
trial Court.
Disposed of in the aforesaid terms.
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRIMINAL) NO.6410/2015 (from the judgment and order dated 9.3.2015 in Crl.MP No. 1987/2014 of the HIGH COURT OF JHARKHAND AT RANCHI)
HEMANT MADHUSUDAN NERURKAR Appellant(s)
VERSUS STATE OF JHARKHAND & ANR. Respondent(s) (with appln(s) for exemption from filing c/c of the impugned judgment and exemption from filing OT and permission to bring additional facts and documents on record and interim relief and office report) WITH SLP(CRIMINAL) NO. 6406 OF 2015 (With (With (With appln.(s) for permission to bring additional facts and documents on record and appln.(s) for c/delay in refiling SLP and appln.(s) for exemption from filing O.T. and Interim Relief and Office Report)
Date : 04/05/2016 These petitions were called on for hearing today.
CORAM :
For Petitioner(s) Mr. K.V. Vishwanathan, Sr. Adv.
Mr. Abhijeet Sinha, Adv.
Mr. Arijit Mazumdar, Adv.
Mr. Abhinav Mukerji,Adv.
Mr. Shambo Nandy, Adv. For Respondent(s) Mr.JUDGMENTTapesh Kumar Singh,Adv.
Mr. Mohd. Waquas, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are disposed of in terms of the Reportable
Judgment, which is placed on the file.
As a sequel to the above, pending miscellaneous
applications, if any, also stand disposed of.
(Renuka Sadana) (Parveen Kumar) Court Master AR-cum-PS