Non-compliance with statutory provisions by the Factory Inspector can invalidate prosecution under the Factories Act, 1948.

Per S.C. SHARMA, J.

The petitioners before this Court under Article 227 of the Constitution are the Officers of the Rail Spring Factory, Sitholi, Gwalior. The petitioners have filed the present petition challenging the order dated January 18, 2005 passed by Labour Court No.1, Gwalior in case No. 180/2002, by which, their application for dismissal of the complaint preferred before the Labour Court No.1, Gwalior under Section 105 of the Factories Act, 1948 (hereinafter referred to as 'the Act') has been turned down.

2. The facts in brief necessary for disposal of the present petition are that the petitioner NO.1 is working as the Chief Workshop Manager and petitioner No.2 is working as the Deputy Chief Mechanical Engineer, are the occupiers within the definition of the Act. The Rail Spring Factory, Sitholi has a Deep Paint Plant located 21 at Sitholi, Gwalior and on April 5, 2002 a small explosion took place in the Deep Paint Plant. The Factory Inspector was appointed under the provisions of Section 8 of the Act who inspected the factory and submitted his report. On the basis of his report, a prosecution was initiated under Section 92 of the Act. The petitioners submitted an objection regarding maintainability of the complaint and it was stated by the petitioners that the Factory Inspector has violated the provisions of the Act and, therefore, the petitioners cannot be prosecuted. It is also argued on behalf of the petitioners before this Court that the factory in question is under the control of the Union of India and the petitioners are the senior officers working under the Union of India. It has been further stated that because of the incident in question, which took place on account of explosion in the factory neither any causality has taken place nor any injury has been caused to any workman as it was a simple and small explosion occurred in the Deep Paint Plant.

3. Chapter 2 of the Act deals with inspecting spot which includes the inspector 45 also. Section 9 of the Act read as under:-

9. Powers of Inspectors.-Subject to any rules made in this behalf, an Inspector may, within the local limits for which he is appointed;

(a) enter, with such assistants, being persons in the service of the Government, or any local or other public authority, (or with an expert) as he thinks fit, any place which is used, or which he has reason to believe is used, as a factory;

(b) make examination of the premises, plant, machinery, article or substance;

(c) inquire into any accident or dangerous occurrence, whether resulting in bodily injury, disability or not, and take on the spot or otherwise statements of any person which he may consider necessary for such inquiry;

(d) require the production of any prescribed registered or any other document relating to the factory;

(e) seize, or take copies of, any register, record or other document or any portion thereof as he may consider necessary in respect of any offence under this Act, which he has reason to believe, has been committed;

(f) direct the occupier that any premises or any part thereof, or anything lying therein, shall be left undisturbed (whether generally or in particular respects) for so long as is necessary of the purpose of any examination : under clause (b);

(g) take measurements and photographs and make such recordings as he considers necessary for the purpose of any examination under clause (b), taking with him any necessary instrument or equipment;

(h) in case of any article or substance found in any premises, being an article or substance which appears to him as having caused or is likely to cause danger to the health or safety of the workers, direct it to be dismantled or subject it to any process or test (but not so as to damage or destroy it unless the same is, in the circumstances necessary, for carrying out the purposes of this Act), and take possession of any such, article or substance or a part thereof, and detain it for so long as is, necessary for such examinati