(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for the records of the impugned sanction order dated 17.10.2008 passed by the first respondent vide vz;.rp1/30451/2008 and consequential complaint proceedings in S.T.C.No.27 of 2008 on the file of the learned Chief Judicial Magistrate, Tuticorin, quash the same and thereby direct the first respondent to consider the appeal preferred by the petitioner dated 03.10.2008 in accordance with law.)1. This Writ Petition is filed for issuing a Writ of Certiorarified Mandamus to quash the order dated 17.10.2008 passed by the first respondent vide proceedings No.rp1/30451/2008 and the consequential complaint proceedings in S.T.C. No.27 of 2008 on the file of the Chief Judicial Magistrate, Tutircorin and to direct the first respondent to consider the appeal preferred by the petitioner dated 03.10.2008 in accordance with law.2. Heard the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.3. The brief facts that are necessary for the disposal of this Writ Petition are as follows:3.1. The petitioner is a company which is running a copper smelter plant at Tuticorin and engaged in manufacturing and sale of copper cathodes, copper rods, sulfuric acid, phosphoric acid and gypsum, etc.3.2. It is stated that on 25.08.2008 at about 13.30 hours a cleaner of a lorry bearing Registration No.TN-29-AB-9464 that entered into the factory to lift gypsum, died due to an accident caused by the same lorry in which he was engaged. It is stated by the petitioner that the lorry was engaged by a third party on behalf of M/s.Mysore Cements Limited, Ammasandra, Tumkur. Immediately, a complaint was lodged before the SIPCOT Police Station and it is stated that the Inspector of Police, came to the spot when the deceased himself was alive and enquired about his identity and the manner of accident. A charge sheet was filed as against the driver of the lorry for the offence under Section 304A of I.P.C. and taken on file in C.C.No.362 of 2008 before the Judicial Magistrate No.II, Tuticorin.3.3. Following the accident, on 25.08.2008 the second respondent inspected the factory premises and on 29.08.2008 the second respondent issued a show-cause notice to the petitioner and one Mr.Kuldeep Kumar Kara as proprietor of the industry as to why action should not be initiated against the recipients of the show-cause notice for violations of certain provisions under the Factories Act, 1948 (and as amended in 1987) and the Rules framed under the Act. In the showcause notice, it was pointed out that the petitioner and the persons shown as owner of the factory has violated Section 7A(c), Section 41 and Section 31(2) read with Rule 61-F and 56(7)(b)(c) of the Factories Act and Rules made thereunder. The petitioner submitted a reply to the show-cause notice dated 29.08.2008. However, the second respondent not satisfied with the explanation, forwarded his recommendation to the first respondent to prosecute the petitioner for violation of provisions of the Act and Rules vide his proceedings in Na.Ka.No.B/2105/2009, dated 26.09.2008.3.4. It is the specific case of the petitioner that the Factory Manager preferred an appeal against the proceedings dated 26.09.2008 to the first respondent under Section 107 of the Factories Act vide appeal memorandum dated 03.10.2008 within 30 days of the service of the order dated 26.09.2008 as provided under the Factories Act. It is also stated that the said appeal preferred under Section 107 of the Factories Act is yet to be disposed of.3.5. Based on the recommendations of the second respondent, the first respondent vide the impugned order dated 17.10.2008, without reference to the appeal filed by the company on 03.10.2008, accorded sanction to prosecute the petitioner herein for all the charges contemplated in the show-cause notice dated 29.08.2008. Pursuant to the order according sanction to prosecute the petitioner, the third respondent preferred a complaint before the Judicial Magistrate No.II, Tuticorin, against the petitioner and the same is pending in S.T.C.No.27 of 2008. Hence, the Writ Petition is filed challenging the impugned sanction order dated 17.10.2008 passed by the first respondent and the consequential complaint in S.T.C. No.27 of 2008 pending on the file of the learned Chief Judicial Magistrate, Tuticorin.4. In the Writ Petition, the impugned order dated 17.10.2008 passed by the first respondent, according sanction to prosecute the petitioner was challenged mainly on the ground that the appeal preferred by the petitioner against proceedings dated 26.09.2008 is still pending and that the order sanctioning prosecution without considering the explanation to the show-cause notice and the appeal that is preferred by the petitioner as against the order recommending prosecution is illegal, arbitrary and violative of settled principles of law. The petitioner contended that there was no employer-employee relationship between the petitioner and the deceased and that the impugned prosecution which was lodged on the assumption that the accident took place within the factory premises is illegal. We need not go into the issue whether the deceased was an employee of the petitioner or not for the present.5. In the counter affidavit, the respondent stood by their stand in the show-cause notice regarding the violations of provisions of Factories Act and Rules framed thereunder. It is also admitted that an appeal has been preferred under Section 107 of the Factories Act. However, it is stated that the appeal under Section 107 of the Factories Act, does not apply to a show-cause notice issued based on the inspection report. Section 107 reads as follows:“107. Appeals.—(1) The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act or the occupier of the factory may, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order.(2) Subject to rules made in this behalf by the State Government (which may prescribe classes of appeals which shall not be heard with the aid of assessors), the appellate authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the appellate authority and the other by such body representing the industry concerned as may be prescribed: Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the appellate authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit, without the aid of any assessor.(3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the appellate authority may in any case think fit to impose, the appellate authority may, if it thinks fit, suspend the order appealed against pending the decision of the appeal.”6. Pursuant to the show-cause notice, dated 29.08.2008, an explanation was offered by the petitioner. Stating that the explanations offered by the petitioner are not satisfactory, the order dated 26.09.2008 was passed by the second respondent recommending prosecution as indicated in the show-cause notice. When it is not in dispute that the petitioner has filed an appeal as against the order dated 26.09.2008, the first respondent by the impugned order dated 17.10.2008 accorded sanction to prosecute the petitioner and another person shown as proprietor, relying upon the recommendation dated 26.09.2008.7. The learned Counsel appearing for the petitioner submitted several precedents to support the prayer in the Writ Petition. The order according sanction is based on the recommendations of the second respondent dated 26.09.2008. The recommendation was challenged before the first respondent under Section 107 of the Factories Act. The learned Counsel appearing for the petitioner relied upon a judgment of this court in Ramakrishna (C.) and another vs. Chief Inspector of Factories, Madras and another reported in 1982 (II) LLN 584. That was a case where the Inspector of Factories pursuant to inspection found certain irregularities and wanted to prosecute the Writ Petitioners under the Act on the basis of the report. The petitioners preferred an appeal against the order of Chief Inspector of Factories, Madras. The appeal was summarily dismissed without affording an opportunity to the petitioners to present their case and therefore, the Writ Petitioners approached this Court. The petitioners in the Writ Petition challenged the order of the Chief Inspector of Factories and the Writ Petition was allowed on the ground that the order of the Chief Inspector of Factories was without assigning reasons and without giving proper opportunity to the Writ Petitioners. After quashing the order of the Chief Inspector of Factories, sanctioning prosecution, this Court remitted the matter to the Chief Inspector of Factories, to dispose of the appeal in accordance with law and in the light of the observations made in the order. This Court further directed that until the disposal of the appeal by the Chief Inspector of Factories, Madras, prosecution stated to have been launched against the petitioners shall not be proceeded with.8.In another judgment of the learned Single Judge of this Court in Crl.O.P.Nos.1287 to 1293 of 2012 in the case of A.Gowtam Datta vs. State by the Inspector of Factories and another agreed with the observations of the Division Bench of this Court in an earlier judgment to the effect that non-consideration of the reply or explanation offered by the factory/company would amount to denial of an opportunity for filing an appeal under Section 107 of the Factories Act. The learned Judge observed that any prosecution launched in denial of right of appeal would have to be nipped in the bud.9.We need not make this order lengthy by referring to several other judgments cited by the petitioner's Counsel. The Factories Act provide an appeal as against the order recommending prosecution on the basis of the inspection report. The sanction for prosecution in the present case is based on the recommendation of the second respondent. In such circumstances, it is against well established principles to keep the appeal pending and to sanction prosecution so that the petitioner will face criminal prosecution by denying the right to file appeal. This Court is of the view that the first respondent before passing the impugned order ought to have considered the appeal preferred by the petitioner under Section 107 of Factories Act as against the order recommending prosecution. To this extent, this Court is able to see that there is violations of principles of natural justice. Incidentally, by the impugned order, the valuable right of the petitioner to file an appeal as contemplated under the Act is deprived and hence, the impugned order is liable to be quashed on the short ground. It is to be noted that regarding violation of Section 31(2) read with Rule 56(7)(b)(c) the petitioner has not properly responded. Section 31(1)(2) of the Factories Act reads as follows:“31. Pressure plant.—1[(1) If in any factory, any plant or machinery or any part thereof is operated at a pressure above atmospheric pressure, effective measures shall be taken to ensure that the safe working pressure of such plant or machinery or part is not exceeded.](2) The State Government may make rules providing for the examination and testing of any plant or machinery such as is referred to in sub-section (1) and prescribing such other safety measures in relation thereto as may in its opinion be necessary in any factory or class or description of factories. 2[(3) The State Government may, by rules, exempt, subject to such conditions as may be specified therein, any part of any plant or machinery referred to in sub-section (1) from the provisions of this section.]”10. Rule 56(7) of Tamil Nadu Factories Act mandates that every pressure vessel or plant in service shall be thoroughly examined by a notified person (a) externally, once in every six months, (b) internally, once in every twelve months. It is also provided that a pressure vessel or plant in continuous process which cannot be frequently opened, the period of internal examination may be extended to four years. The pressure vessel or the plant has to be hydrostatically tested once in every four years. To this specific allegation in the show-cause notice that no testing was done as contemplated under Rules for a long period, the reply that was submitted by the petitioner was to the effect that arrangements are made to have the testing by notified person within a month. The object of the Factories Act was to protect the employees of
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every factory in the course of their manufacturing process. It is known to everybody that the petitioner is an industry facing several problems alleging non-observance of rules and regulations of various statutes and for causing pollution. In such circumstances, the respondents are directed to pass appropriate orders after following the provisions of the Act and after adhering to the principles of natural justice so that the petitioner can be made to face the legal consequences for every violation.11. As a result, this Writ Petition is allowed and the order impugned in this Writ Petition, namely, the order dated 17.10.2008 is quashed. Till final orders are passed in the appeal that is preferred by the petitioner under Section 107 of the Factories Act, the proceedings in S.T.C. No.27 of 2008 on the file of the Chief Judicial Magistrate, Tuticorin, shall be deferred. The first respondent is directed to consider the appeal preferred by the petitioner dated 03.10.2008 and dispose of the same on merits and in accordance with law within a period of three months from the date of receipt of copy of this order. If the appeal preferred by the petitioner is dismissed, it is open to the respondents to pass orders to accord sanction for the prosecution and the proceedings in S.T.C.No.27 of 2008 on the file of the Chief Judicial Magistrate Court, Tuticorin, shall be continued thereafter. No costs. Consequently, the connected miscellaneous petition is closed.