The occupier of a factory is not liable for contraventions of the Factories Act, 1948, or the rules made thereunder, where the responsibility for observing the provisions has been imposed on some other person.

1. This is an appeal by the State Government, Madhya Pradesh, against the acquittal of Respondent Maganbhai.

2. The Patel Oil Mills, Akola, is a factory within the meaning of S. 2 (m), Factories Act, 1948, (hereinafter called the Act). The Respondent Maganbhai was the occupier of this factory as defined in S. 2 (m). W. J. Thete worked as the Manager at the material time. He died during the pendency of the trial.

3. Shri A. P. Varkhedkar, Inspector of Factories, Madhya Pradesh, inspected the Patel Oil Mills on 13-9-50. He noticed certain irregularities which he recorded in his inspection report. A complaint against Respondent and Thete was filed on 30-10-1950 in the Court of Magistrate, First Class, Akola.

4. The case of the prosecution was that the transmission machinery was not securely fenced. There was breach of, S. 21, punishable under Section 92 of the Act. Workers were allowed to work without proper entries of their names and other particulars being made in the register of adult workers. This constituted a breach of S. 62, punishable under Section 92 of the Act. There was also a failure to maintain the register of leave wages with the prescribed entries duly filled in. There was a contravention of S. 83 read with R. 91 of the Madhya Pradesh Factories Rules, punishable under Section 92 of the Act.

5. On behalf of the prosecution, A. P. Varkhedkar was examined. The Respondent disclaimed responsibility for the breaches, if any. In his defence he examined 6 witnesses.

6. The trial Court held that there was no contravention of S. 21. The Respondent Maganbhai was not liable for any contravention of Sections 62 and 83 and R. 91. The question of breaches was not decided.

7. The trial Court was right in holding that there was no breach of the provisions of S. 21. Shamlal (D. W. 1) a Fitter in the Mills, in his evidence stated:

I was present at the time when the Inspector of Factories had come for inspection. That time the guards over gears of the expellers were removed because one of the gear wheels had come out and it had to be refixed. This refixation could not be done unless guards were taken out............ I had refixed the wheel and was taking trial of it without fixing the guard, and just then the Inspector arrived.

It does not appear that he was cross-examined by the prosecution. To the same effect was the evidence of Ishaque (D. W. 2). Their testimony was believed by the trial Court. The finding of the trial Court is as follows:

I have found that the two gears A and B parts of the machinery are dangerous parts and needed to be necessarily fenced. Gear C was well secured in spite of there being no guard and that the wooden gate was an appendage and not necessary fencing. I have further found that guards of gears A and B were thrown off in order to carry out repairing and adjustment of the machinery and this act was protected under Section 22.

8. The learned Additional Government Pleader did not contest the acquittal under Section 92 read with S. 21.

9. The learned Government Pleader says that the trial Court was wrong in its interpretation of S. 92. According to him, both Manager and Occupier are responsible for contravention of any of the provisions of the Act and the rules. The Respondent should have been held liable even though the duty was cast on the Manager to maintain the registers.

10. We are of opinion that the trial Court was right in holding that the Respondent could not be held liable for any contravention of the provisions of Sections 62 and 63 of the Act and R. 91 by the Manager.

11. Section 92 is as follows:

Save as is otherwise expressly provided in this Act and subject to the previsions of S. 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rule made there under or of any order 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 thr