Section 92 of the Factories Act does not mandate joint prosecution of the occupier and Manager for contravention of the Act. The occupier and Manager can be prosecuted separately.

JUDGMENT - B.N. DESHMUKH, J.:---This appeal is filed by the State against the respondent accused who is Manager of Lorcom Factory, Chikalthana, Aurangabad.

2. The complaint was filed against the respondent-accused for contravention of provisions of section 58(1) of the Factories Act made punishable under section 92 of the said Act. The learned trial Judge acquitted the respondent on the ground that the occupier of the factory is not made accused in the present case. The prosecution is launched only against the respondent who is Manager of the factory. As the occupier is not made accused, the learned trial Judge held that such a prosecution in view of the provisions of section 92 of the Factories Act is not proper and hence acquitted the respondent-accused.

3. Shri Patil, learned A.P.P. for the State, contended that the provisions of section 92 are not properly appreciated and the prosecution of Manager alone for contravention of provisions of section 58 of the Act is possible.

4. The provisions of section 92 of the Act relate to the penalties and the procedure therefore. It provides as follows---

"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 older 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 months 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....."

5. Shri Marlapalle, appearing for the respondent, contended that the learned trial Judge was right in acquitting the respondent accused as section 92 provides for a joint prosecution of occupier and Manager and there can be no prosecution of the Manager alone. Admittedly the occupier is not made accused in the proceeding and, therefore, the learned trial Judge was right in passing an order of acquittal in favour of the accused. He invited my attention to the other provisions of the Act to contend that section 92 of the Act provides for joint trial and Manager alone cannot be prosecuted. He invited my attention to the definition of occupier in section 2(n) and also to the provisions of section 101 of the said Act which according to him govern the interpretation of section 92 of the Act. He also contended that the provisions of section 92 are beneficial provisions made by the legislation with social approach and the whole purpose of the object of introduction of section 92 will be lost if the occupiers are let free and merely the Managers are allowed to be prosecuted.

6. While considering the provisions of section 92, the other connected provisions will have to be taken into consideration. Section 92 deals with offence by workers. Sub-section (2) of section 97 provides that where a worker is convicted of an offence punishable under sub-section (1), the occupier or Manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention. Similarly section 101 provides for exemption of occupier or Manager from liability in certain cases. The opening words of section 101 reads thus---

"Where the occupier or Manager of a factory is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than 3 clear days notice of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; etc.."

It is not disputed that section 92 is the only section which provides for punishment for offences under this

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