IMPORTANT POINT
Even if defects as pointed out in inspection report are cured, the Occupier and the Manager would still be liable for the violation of the provisions.

Headnote:Factories Act, 1948 – Section 92 – Deficiency found in inspection – Appellants not afforded opportunity to cure the defects and irregularities found during the course of inspection – Defects removed – Occupier and Manager still liable for the violation – Supreme Court not inclined to interfere with impugned order of the High Court – Matter ought to be remitted – However, on agreement of the parties, matter disposed of – A penalty of Rs.50,000/- each imposed on the appellants. (Para 15)
       (1970) 2 SCC 172; (1996) 6 SCC 665 – Referred
       Facts of the case:
       The factory premises, on inspection, was found to having certain defects and violation of the Factories Act 1948 and the Contract Labour (Abolition and Regulation) Act were noted. Accordingly cognizance was taken against the Occupier and Manager of the factory. High Court declined tp quash the proceedings.
       Finding of the Court:
       Even if defects are cured appellants are liable u/s 92, Factories Act, 1948.
       Result: Appeal disposed of. Penalty imposed.

JUDGMENT :

Jagdish Singh Khehar, J.

Leave granted in both the special leave petitions.

2. 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 paragraph 3 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.

(d) for washing of utensils no arrangement of hot water has been made.”

3. 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).

4. 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:

“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.”

5. 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.

6. 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.”

7. A perusal of the above order reveals,

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Judicial Analysis

SupremeToday

2016 Supreme(SC) 353

IMPORTANT POINTEven if defects as pointed out in inspection report are cured, the Occupier and the Manager would still be liable for the violation of the provisions.

Cases Referred (2)

Judicial Analysis

IMPORTANT POINT
Even if defects as pointed out in inspection report are cured, the Occupier and the Manager would still be liable for the violation of the provisions.