JUDGMENT

B. P. DAS, J. — This application has been filed with a prayer to quash the proceeding initiated by the Sub-divisional Judicial Magistrate, Jharsuguda, in Complaint Case No. 2 (C) CC 105/2001 against the petitioner, who is described as occupier of M/s. Ib Thermal Power Station, Banharpalli, Dist. Jharsuguda.

2. The short facts relevant for disposal of this applica¬tion are that the aforesaid complaint case has been filed alleg¬ing violation of Sections 62 and 7 A(2)(b) of the Factories Act, 1948 (in short ‘the Act’) as well as Rule 62-D of the Orisa Factories Rules, 1950 (hereinafter ‘the Rules’) punishable under Section 92 of the Act jointly against the petitioner in his capacity as the occupier of the Ib Thermal Power Station (ITPS) and against respondent No. 2 in his capacity as the Deputy Gener¬al Manager (P&IR) and Manager under the Act of the aforesaid ITPS. The further allegation in the complaint is that the peti¬tioner and respondent No. 2 had engaged some workers for stone pitching work relating to the in-take channel (water reservoir) in their factory. On 17th April, 2001 in course of performance of the said work, one of the workers by name Pravin Nayak, who was a mason, drove a tractor carrying certain co-workers and the trac¬tor hit a heap of boulders on the bank resulting in the death of said Pravin Nayak. It has been alleged that the deceased was unauthorisedly driving the vehicle and also did not have a valid licence to drive the vehicle. The allegation against the peti¬tioner and respondent No. 2 is that they have failed to take any safety measures in the performance of the aforesaid work and that they have failed to enter the details of the workers in the factory’s register of adult workers.

3. Learned counsel for the petitioner submitted that the prosecution as against the petitioner is not maintainable in view of the fact that neither the provisions of Section 7-A(2)(b) of the Act nor the provisions of Rule 62-D of the Rules are at¬tracted to the facts and circumstances of the case.

4. For the sake of convenience, it would be appropriate to quote hereinbelow the provisions of Section 7-A (2)(b) of the Act :

“7-A. General duties of the occupier -(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.

(2) Without prejudice to the generality of the provisions of Sub-section (1), the matters to which such duty extends, shall include -

(a) .........

(b) the arrangement in the factory for ensuring safety and absence or risks to health in connection with the use, handling, storage and transport of articles and substances;

xxxxxx xxxxxx xxxxx

Learned counsel for the petitioner further submitted that the prosecution is based upon the statement made by one Anupam Mohapatra, Team Leader of the Support Services of the ITPS, Banharpalli, on the 14th May, 2001 before the Inspector of Factories and Boilers. The said statement of Anupam Mohapatra, which is enclosed to the complaint petition (Annexure-A) tends to reveal that while the tractor was parked near the camp, its driver Bhimsen Saha had gone to canteen for taking tea and the helper of the tractor Bihari Oram was guarding the trac¬tor with the key. Pravin snatched away the key from Bihari and started driving the tractor. Then he forced others to seat in the empty trolley of the tractor. Out of fear four female workers sat on the trolley and Bihari Oram stood on the connecting link between the tractor and the trolley. Pravin then drove the trac¬tor from the camp house towards the stone pitching area where plying of transport vehicle was not allowed as work was in progress. After driving about a length of 900 mtrs. the left wheel of the tractor hit a boulder on the bank and Pravin lost his balance and could not control the tractor, which fell down towards the outer side of the slope. Bihari Oram and four female workers jumped from the tractor just before