Point of law : If an order is not obligatory to be passed under the statute, no appeal would lie against the offence alleged under Section 7A(2)(c) of the Factories Act as is alleged in the case at hand

ORDER :

The petitioner who is the occupier of M/s Toyota Kirloskar Motor Private Limited has filed the subject writ petition calling in question the proceedings in C.C.No.757 of 2017 pending on the file of the Principal Civil Judge and JMFC, Ramanagara initiated under the provisions of the Factories Act, 1948.

2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-

The petitioner is the occupier of M/s Toyota Kirloskar Motor Private Limited Company (‘Company’ for short), a company engaged in the manufacture of motor cars. On 11-04-2017 one Mr. Theertha Prasad, Forklift operator while removing the module using forklift, a workman by name Mr. Santhosh Patgar, who was a tow truck operator entered into forklift movement area and when reversing of the forklift was in progress meets with an accident which resulted in an injury of his left leg. It is contended that the Company immediately took Sri Santhosh Patgar to the Company’s occupational health centre for first aid treatment and thereafter, immediately shifted to BGS Hospital, Uttarahalli for further treatment.

3. In terms of the Factories Act, 1948 (hereinafter referred to as ‘the Factories Act’ for short) the petitioner immediately furnished the said information to the respondent in Form No.17 with regard to the accident that has occurred and treatment that he was given on 11-04-2017. The information was submitted as required in Form No.17 under the Factories Act. On receipt of the said information, the respondent inspected the premises on 12-04-2017 and submitted an inspection report. The respondent again visited the premises on 22-06-2017. A show cause notice was issued on the petitioner on 23-06-2017. The petitioner replied to the said show cause notice on 11-08-2017.

4. It is the claim of the petitioner that he was taken by surprise that the respondent without passing any order on the reply given to the show cause notice dated 23-06-2017, a complaint under Section 200 of the Cr.P.C. was registered against the petitioner for contravention of Section 7A(2)(c) of the Factories Act. The respondent in the complaint has narrated that the injured workman entered into forklift area to pick up gloves. The complaint was registered as C.C.No.757 of 2017. It is challenging the said proceedings, the petitioner is before this Court in the subject writ petition.

5. Heard the learned Senior Counsel Sri.S.N.Murthy appearing for the petitioner and the learned Additional Government Advocate Smt. B.G.Namitha Mahesh.

6. Learned Senior Counsel Sri S.N.Murthy would vehemently argue and contend that the complaint is registered against the occupier of the factory and not the Company and the complaint itself would not be maintainable in the form that it is presented i.e., in the absence of the Company being arrayed as an accused. The other submission that the learned Senior Counsel would make is that having issued a show cause notice and the reply having been submitted by the petitioner, an order ought to have been passed by the respondent against which an appeal is provided under the Factories Act in terms of Section 107 of the Factories Act. By registration of criminal complaint even without passing an order the petitioner has lost the right of appeal as provided under the statute. In furtherance of his submissions, he would place reliance upon the following judgments of the Apex Court and that of this Court:

(i) ANEETA HADA & OTHERS v. GODFATHER TRAVELS AND TOURS PRIVATE LIMITED – AIR 2012 SC 2795;

(ii) SUNIL BHARTI MITTAL v. CENTRAL BUREAU OF INVESTIGATION – (2015) 4 SCC 609;

(iii) B.K. PANDURANGA v. THE STATE – Criminal Petition No.8579/2015 decided on 1st February, 2016;

(iv) VIGNESHWAR GOPAL KRISHNA BHAT AND ANOTHER v. STATE OF KARNATAKA – Criminal Petition No.2872 of 2018 decided on 28-06-2018;

(v) JOSEPH ZACHARIAH AND OTHERS v. H.N. DEVARAJU AND ANOTHER – Criminal Petition No.7666 of 2018 decided on 18th January, 2019; and

(vi) MANI K.THOMAS v. S