w w w . L a w y e r S e r v i c e s . i n



P.P. Upadhya & Another v/s State of Karnataka, Department of Factories Boilder Industrial Safety & Health, Mangalore


Company & Directors' Information:- V. K. INDUSTRIAL CORPORATION LIMITED [Active] CIN = U27100MH2004PLC149538

Company & Directors' Information:- R K INDUSTRIAL CORPORATION LIMITED [Strike Off] CIN = U29300PB1996PLC017836

Company & Directors' Information:- V T INDUSTRIAL CORPORATION LIMITED [Active] CIN = U74990TN2010PLC078041

Company & Directors' Information:- B P INDUSTRIAL CORPN. PVT LTD [Active] CIN = U15312UP1973PTC087037

Company & Directors' Information:- B L HEALTH AND SAFETY PRIVATE LIMITED [Active] CIN = U74999DL2003PTC118844

Company & Directors' Information:- INDIA FACTORIES PVT LTD [Strike Off] CIN = U29120MH1942PTC003747

Company & Directors' Information:- FACTORIES PVT LTD [Strike Off] CIN = U74140WB1949PTC017642

Company & Directors' Information:- A V A INDUSTRIAL CORPN PRIVATE LIMITED [Strike Off] CIN = U29191TZ1956PTC000261

Company & Directors' Information:- THE INDUSTRIAL CORPORATION PRIVATE LIMITED [Active] CIN = U15420MH1921PTC000947

Company & Directors' Information:- SAFETY INDIA PRIVATE LIMITED [Active] CIN = U80902DL2019PTC357327

Company & Directors' Information:- D D INDUSTRIAL PRIVATE LIMITED [Active] CIN = U34102DL2006PTC156978

Company & Directors' Information:- M N M SAFETY PRIVATE LIMITED [Strike Off] CIN = U33100MH2005PTC154685

Company & Directors' Information:- KARNATAKA INDUSTRIAL PRIVATE LIMITED [Strike Off] CIN = U29222KA1974PTC002711

Company & Directors' Information:- A K INDUSTRIAL CORPORATION (INDIA) PRIVATE LIMITED [Active] CIN = U29130PN2014PTC151053

Company & Directors' Information:- KARNATAKA INDUSTRIAL COMPANY LIMITED [Strike Off] CIN = U33130KA1916PLC000063

Company & Directors' Information:- THE INDUSTRIAL CORPORATION LIMITED [Strike Off] CIN = U00804KA1948PLC000529

    Criminal Petition No. 2167 of 2014

    Decided On, 28 January 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ASHOK G. NIJAGANNAVAR

    For the Petitioners: S.B. Pavin, Advocate. For the Respondent: Vijaykumar Majage, Addl. SPP.



Judgment Text

1. This petition is filed under Section 482 of the Code of Criminal Procedure to quash the entire proceedings against the petitioners in C.C. No.1220/2012 on the file of J.M.F.C. II Court, Mangalore.2. Heard learned Senior Counsel for the petitioners and learned Additional State Public Prosecutor for the respondent State.3. The facts leading to this petition are that on the complaint filed by Deputy Director of Factories, Division-I, Mangalore, the learned Magistrate took cognizance of the offence punishable under Section 92 of the Factories Act, 1948 and directed to register the criminal case and issue summons to the accused.4. The allegations in the complaint are that the accident had taken place when the welding work was carried out in the oily water sump for replacement of a pump which ignited the explosive mixture collected in the oily water sump, resulting in a flash fire and explosion in the top concrete slab to rip open and injure persons who were in the path of flying debris, which caused injuries to five workers and death of one. The hazard associated with the said work was not analyzed and no preventive measures to remove or prevent accumulation of inflammable vapour and exclusion of all possible sources of ignition were taken to prevent the explosion. Thereby, the occupier and Manager of the Factory have contravened the provisions of Section 37 (1) (b) & (c) of the Factories Act.5. On submission of the aforesaid complaint, the Magistrate has taken the cognizance and directed the office to register the case. Being aggrieved by the impugned order passed by the learned Magistrate for registering the case and issuance of summons, the petitioners have preferred this criminal petition for quashing the proceedings.6. The learned Senior Counsel for the petitioners contends that the petitioner No.1 is the Managing Director and the petitioner No.2 is the Factory Manager of M/s.Mangalore Refinery and Petrochemicals Ltd., which is a Public Sector Undertaking and the present complaint is filed against the Government officials namely the Managing Director and Factory Manager and no prior sanction has been taken. Thus, initiation of the proceedings against the petitioners and taking cognizance of the offence against the public servants as defined under Section 197 of the Code of Criminal Procedure and Section 21 of the Indian Penal Code is bad in law. The next contention is that the impugned order passed by the learned Magistrate in taking cognizance of the offence and registering the case is erroneous as the procedure prescribed under the Factories Act has not been complied with. Thus, the initiation of the proceedings against the petitioners is liable to be quashed.7. Per contra, the learned Additional State Public Prosecutor submitted that there is no requirement of prior sanction to prosecute the petitioners, in view of the decision of the Hon'ble Apex Court in the case of Bharat Sanchar Nigam Ltd. and others vs. Pramod Sawant and another., (2019) AIR SC 3929 Further, it is submitted that Section 107 of the Factories Act is applicable to only specific Sections, i.e., Sections 50, 39, 40, 48 and 87(a). Hence, there was no requirement of passing an order in writing as provided under Section 107 of the Factories Act. The legal action was initiated after compliance of the procedure prescribed and there is no irregularity or illegality whatsoever.8. The first and the foremost contention of the learned Senior Counsel for the petitioners is that in response to the show cause notice/report issued by the complainant Deputy Director of Factories (an Inspector appointed under Section 8(1) of the Factories Act), the petitioners had submitted the reply, but the complainant has not passed any order in respect of the said reply and communicated the same to the petitioners, instead he has directly filed a private complaint to initiate legal action which cannot be sustained in law. In support of the said contention, he has relied on a decision in the case of Inspector of Factories, Vellore vs. Showa Engineering Ltd., Sholinghur.,2007 SCCOnlineMadras 5589. As could be seen from the records furnished by the learned Senior Counsel, a detailed accident report-cum- show cause notice dated 09.03.2012 was issued by the complainant - Deputy Director of Factories, Mangalore to the petitioners. In response to the said show cause notice, the petitioners have issued reply on 15.03.2012. Thereafter, on 28.03.2012, the complainant Deputy Director of Factories has forwarded the reply letter received from the management of M/s. Mangalore Refinery and Petrochemicals Ltd., to the Director of Factories and Boilers, Bengaluru, with his remarks. On receipt of the said proforma, the Director of Factories and Boilers has issued a letter dated 09.04.2012 granting permission to initiate the proceedings against the petitioners. It is pertinent to note that, on receiving the reply from the petitioners to the show cause notice dated 09.03.2012, the complainant Deputy Director of Factories ought to have passed an order and communicated the same to the petitioners. But, no such action is taken by the complainant. If the complainant Deputy Director of Factories had passed an order and communicated the same to the petitioners, they would have got an opportunity to prefer appeal, as provided under Section 107 of Factories Act, 1948.10. The respondent has not placed any material to show that the complainant Deputy Director of Factories had passed an order on receiving the reply from the petitioners on the show cause notice issued to them. The respondent/complainant being a public servant was under the obligation to pass an order considering the reply given by the petitioners to the show cause notice. But he has only forwarded the reply given by the petitioners to the Director of Factories and Boilers, Bengaluru and has sought for permission to initiate the legal action. Under these circumstances, it is evident that the complainant has directly initiated the legal action without passing an order on the reply given by the petitioners, as such, petitioners are deprived of opportunity to prefer appeal under Section 107 of the Factories Act.11. When the action is initiated without considering the explanation offered by the petitioners, the initiation of such proceedings is opposed to law. As already stated above, the respondent should have passed an order in accordance with law, against which, an order of appeal is provided under Section 107 of the Factories act. Therefore, in lieu of non-considering the explanation

Please Login To View The Full Judgment!

submitted by the management and initiation of legal action is detrimental to the interest of the petitioners, as the management has lost the right of appeal provided under the Statute. Hence, the initiation of legal action as ordered by the learned Magistrate cannot be sustained in law.12. For the foregoing reasons, this petition deserves to be allowed. Accordingly, I pass the following:i. Criminal Petition is allowed.ii. The proceedings in C.C. No.1220/2012 on the file of the J.M.F.C. II Court, Mangalore, is quashed. However, the liberty is reserved to the respondent/ complainant to pass necessary order on the reply given by the petitioners to the show cause notice and proceed further if necessary, in accordance with law.
O R