The definition of "occupier" in Section 2(n) of the Factories (Amendment) Act, 1987, which includes a Director of a Company, is not arbitrary or violative of Article 14 of the Constitution.

Bhuvaneswar Prasad, J. - This application has come up for admission. It has been filed under section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It is directed against the order dated 19.5.1989 passed by the learned Sub-divisional Judicial Magistrate, Sikharana at Motihari, in Factory Case No. 17/89 (State v. Shri D. N. Dikshit and others) by which the learned Sub-divisional Judicial Magistrate has been pleased to take cognizance of the offence under section 92 of the Factories (Amendment) Act, 1987 (in short the 'Act') against the petitioner and others and has transferred the case for disposal to the court of Shri I. B. Mandai, Judicial Magistrate, 1st Class.

2. In this application, it has been stated that even if it is taken at its full face value, the complains petition does not disclose any offence at all and does not show even prima facie the complicity of the petitioner in the alleged offence. The complainant in the case is the Factories Inspector, Motihari. He is said to have inspected Barrah Factory Branch of M/s Champaran Sugar Company Limited in the presence of the General Manager, Accounts Officer and the Chief Engineer of the Factory. The Factory Inspector noted that apart from other violations the lifting machines and the lifting tackles were not examined by a competent person, once in a year as prescribed under the Act. It was not even inspected since last six years. He found that Shri S. C. Sharma, Chief Engineer of the Factory, was not a "competent person" recognized by the Chief Inspector of Factories, Bihar in accordance with Section 2 (Ga) of the Act. Accordingly he reported that it was a violation of sub-clause (iii) of Clause (a) of Sub-section (1) of Section 29 of the Act.

3. The Factory Inspector, in his complaint petition, further alleged that the petitioner being one of the Directors of Champaran Sugar Company Limited is the "occupier" of the Factory and, therefore, he had allegedly violated the provisions of law as contained in Section 29 of the Act and had thus committed an offence under Section 92 of the Act. In the detailed statement made in the complaint petition it was stated that the petitioner was one of the Directors of Champaran Sugar Company Limited and was for this reason the "occupier" of the Factory. It was submitted that the concept of a "competent person" in relation to the provisions of the Act was for the first time introduced in subsection (ii) (ka) of Section 2 of the Act which came into force on 1.12.1987. According to it a competent person will mean a person or any institution recognized as such by the Chief Inspector of Factories for carrying out the tests etc. as required to be done in a factory under the provisions of this Act. Since there was no such notification, no competent person was designated as such and, therefore, there could be no question of violation of the provisions of the Act for the alleged failure for having the requisite tests carried out by the competent person.

4. Section 2 (n) has been modified by the amending Act to provide that in case of company one of the Directors shall be deemed to be the occupier. This provision is not proper and is hit by Article 14 of the Constitution inasmuch as it is discriminatory and if gives unbridled power to the Factory Inspector to choose anyone of the Directors' to be the occupier and to lodge prosecution against him to the exclusion of other Directors. Hence any such prosecution must be held to be ab initio void and liable to be struck down. As per this provision any of the Directors can be singled out and chosen for the purpose of lodging the prosecution. Section 101 of the Act provides for exemption of occupier or Manager from liability in certain cases. In the present case, since the General Manager is already a co-accused there is automatically an exemption for the Director in terms of Section 101 of the Act.

5. In the instant case the Directors of the Company had by a resolution named S. K.