ORDER

This Petition is filed to quash the complaint in S.T.C.No.1625 of

2023 on the file of the Chief Judicial Magistrate, Madurai.

2. The complaint is filed by the respondent, namely, the Deputy Director, Industrial Safety and Health-III, Madurai, complaining that the petitioner has committed an offence punishable under Section 96-A of the Factories Act, 1948. The gravamen of the allegation is that the petitioner did not put in place in the manner prescribed all information relating to dangers, including health hazards and measures to overcome such hazards, arising from exposure or handling of the materials or substances in the manufacture and also did not lay down a detailed policy with respect to the health and safety of the workers. The petitioners did not draw “On Site Emergency Plan” and detailed disaster controlled measures for the factory. Feeling aggrieved by the complaint, the present petition is filed.

3. Apart from other grounds, the primary ground raised by the learned counsel for the petitioner is that Section 41(B) of the Factories Act, 1948 (hereinafter referred to as “Act”) itself is with reference to the factories involving hazardous process. According to the learned counsel for the petitioner, the term 'hazardous process' is defined in the Act under Section 2(cb). As per the same, the hazardous process industries are specified in the 1st Schedule to the Act. The petitioner is an Industry which manufacturers synthetic cord, by twisting the yarn and the petitioner's process is not enlisted in the 1st Schedule to the Factories Act. Merely because the petitioner's industry uses gas cylinders in the process of heating the yarn, it cannot be said to be a hazardous industry inasmuch as neither the raw materials used in the industry nor the intermediate or finished product in the industries are hazardous and there are no by-products, such as, waste or effluents, which are generated. Therefore, the petitioner's industry will not come within the mischief of the definition of hazardous process as contained under Section 2(cb). Once the petitioner's industry is not a factory involving hazardous process, then, there cannot be any complaint as to the violation of Section 41 (B) and therefore, even assuming that the allegations, which are mentioned on face value are true, no offence under Section 97 of the Factories Act, is made out and hence, the complaint should be quashed.

4. Per contra, the learned Government Advocate (Criminal Side)

would submit that firstly, under Rule 97 of the Tamil Nadu Factories Rules 1950, more, specifically, under Schedule 31, the Rules relating to highly flammable liquids and flammable compressed gases are framed. The said Rules are clearly applicable for all factories where highly flammable liquids or gases are manufactured, stored, handled or used. The petitioner's factory uses compressed gas and therefore, the said Rules as framed under Schedule 31 are applicable. Once the Rules are applicable, then the petitioner's factory can also be termed as a 'factory' coming within Entry 29 of the 1st Schedule. Entry 29 categorically mentions about highly flammable liquids and gases. Once the petitioner's industry comes within the Entry to the 1st Schedule, which is incorporated as per Section 2(cb), then the petitioner's industry is hazardous and therefore, when the petitioner's industry has not come up with the plan and does not lay down any emergency plan as mandated under Section 41(B), the offence is made out and the complaint cannot be quashed.

5. I have considered the rival submissions made on either side and perused the material records of the case.

6. There is no quarrel over the proposition that Section 41 (B) of the Act, is applicable only in respect of factories involving hazardous process and that the hazardous process is defined under Section 2(cb). The only point of debate is that whether the petitioner's industry, to which, the Rules, namely, the Highly Flammable Liquids and Flammable Compres