An useful Circular vannot be declared invalid.

(PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari, call for the records of the first respondent circular in his proceedings No.Roc.No.386/94/RR dated 14.09.1995 and quash the same.)

This writ petition is filed challenging the circular issued by the first respondent the Registrar, High Court, Chennai, dated 14.09.1995. As per the said impugned circular, the first respondent, while referring to the decision of the full court of the High Court, and considering that the penalty for violation of any offence under Factories Act has been enhanced to Rs.1 lakh and in view of the said enhancement, the Judicial Magistrate cannot levy a fine beyond Rs.5,000/-, passed a resolution directing the Chief Judicial Magistrates to withdraw the cases pending under the Factories Act and filed before the amendment came into existence in which the punishment to be imposed is beyond the competency of Judicial Magistrates.

2. The writ petitioner, who is working as a Factory Manager of M/s.Standard Fire Works Ltd., Thayalpatti via, Sivakasi, Virudhunagar District, states that in respect of offence punishable under the Factories Act, 1948, which is a Central Act, Section 105 (2) contemplate that no court below that of a Presidency Magistrate or Magistrate of First Class shall try any offence punishable under the said Act.

3. According to the petitioner, when once the said Section 105(2) stands in tact even as on date, the impugned circular by transferring the cases in respect of offence under Factories Act from the court of First Class Magistrate to Chief Judicial Magistrate on the ground of pecuniary jurisdiction namely the quantum of fine is unlawful.

4. It is also the case of the petitioner that under Section 112 of the Factories Act, 1948, the State Government is empowered to make rules providing for any matter under the Act. According to the petitioner, it is at the most the State Government which can make any rules even if it relates to the procedure for the purpose of transferring cases from the First Class Magistrate to the Chief Judicial Magistrate. In the absence of such rules framed by the State Government, the first respondent High Court has no power to withdraw cases from the courts of First Class Magistrate to that of the Chief Judicial Magistrate.

5. The petitioner challenges the impugned order also on the ground that by withdrawing the cases to the file of the Chief Judicial Magistrates on the basis that the fine to be imposed in respect of offence under the Factories Act is enhanced to Rs.1 lakh only with the presumption that all cases filed under the Factories Act, 1948, will result in conviction and fine.

6. The first respondent has filed the counter affidavit. It is the case of the first respondent that under Section 94 of the Factories Act, 1948, which was amended by Section 20 of the Act, 1987, with effect from 01.12.1987, has enhanced the imprisonment in respect of offence punishable under Section 92 of the said Act, to 3 years or with a fine not less than Rs.10,000/- which may extend upto Rs.2 lakhs. When this enhancement of penalty was informed by the Chief Inspector of Factories to the High Court and inasmuch, it is only the Chief Judicial Magistrate who alone are empowered to levy a fine exceeding Rs.5,000/-, the matter was placed before the Full Court of the High Court and the Full Court has taken a decision on 31.08.1998 withdrawing cases to the file of the Chief Judicial Magistrates in respect of offence punishable under the Factories Act.

7. According to the first respondent, while Section 29 of the Criminal Procedure Code empowers the First Class Magistrates to imposed the sentence of fine upto Rs.5,000/-, by amending under Section 94 of the Factories Act enhancing the minimum penalty to that of Rs.1 Lakh in respect of offences punishable under Section 92 of the Factories Act, in effect no such offence can be tried by the First Class Magistrates and