ON Criminal Appeal No 193 of 1957
Appeal by special leave from the judgment and order dated August 1 1957 of the Bombay High Court in Criminal Appeal No 365 of 1957 arising out of the judgment and order dated the November 28 1956 of Joint Civil Judge Junior Division and Judicial Magistrate First Class Broach in Summary Case No 57 of 1956
Rajni Patel and M section K Sastri for the appellant
H J Umriyar T M Sen and R H Dhebar for the respondent
September 4
The Judgment of the Court was delivered by WANCHOO J
This appeal by special leave against the judgment of the Bombay High Court raises the question of the interpretation of sub sections
3 and 4 of section 36 of the Facts Act LXIII of 1948 hereinafter called the Act
The brief facts necessary for the 656 purpose are these
The appellant is the occupier of the Gopal Mills Co Ltd Broach which is a factory as defined in the Act
It appears that there is a pit in the factory in which dangerous fumes are likely to be present
This pit was securely covered as required by section 331 of the Act and no one was expected to go down into the pit for the normal work of the factory as the pit was worked by gadgets fixed nearby above the ground
It appears however that something went wrong with the machinery inside the pit on July 4 1955
Fakirji Dhanjishaw was the person in charge of those who were working in the purification plant with which this pit is connected when the accident took place at about 9 30 a m on July 4 1955
It seems that when something went wrong with the machinery inside the pit a labourer named Melia Dadla was asked to go down into it to attend to it and he went down without wearing suitable breathing apparatus and a belt securely attached to a rope the free end of which should have been held by a person standing outside the confined space
The result was that Melia Dadla was seen overcome by poisonous gases and died
Thereafter Fakirji Dhanjishaw Maganlal Gordhandas Chunilal Bochar and Chhotalal Nathubbai went down into the pit without wearing breathing apparatus and were overpowered with poisonous gases and died one after the other
It is not clear when the superior officers in the mill were informed of this tragedy
But it appears that after the death of these five persons the Superintendent Municipal Fire Brigade was sent for with breathing apparatus and other appliances and he went down into the pit to save the dying persons but be was also attacked by the fumes and became unconscious
The mill doctor and some other doctors also came but nothing could be done to revive the five persons who were dead
The matter was reported to the Inspector of Factories and he went and made enquiries
It was then found that suitable breathing apparatus reviving apparatus belts and ropes were not available anywhere in the factory and were not kept ready for instant use beside the confined space
Consequently 657 the appellant was prosecuted as the occupier for the breach of section 36 3 and 4 of the Act
The appellant took advantage of section 101 of the Act and filed a complaint against the manager section D Vashistha and the engineer H P Tripathi
In view of this complaint of the appellant the first question that the magistrate had to decide was whether the commission of the offence had been proved
If the commission of the offence was proved the magistrate would have to consider whether the appellant could be discharged from liability if he proved to the magistrate s satisfaction that he had used due diligence to enforce the Act and that the other two persons committed the offence in question without his knowledge consent or connivance
In considering the question whether an offence had been committed the magistrate had to interpret sub sections 3 and 4 of section 36 of the Act
He was of the view that no offence under section 36 3 had been made out as the prosecution had failed to prove any permission express or implied to Fakirji Dhanjishaw and others to enter the pit
He was further of the view that no offence under section 36 4 had been committed because no permission under sub section
3 having been granted to anybody to enter the pit it was not necessary to keep the breathing apparatus etc near the pit or anywhere else in the factory
He therefore held that no offence had been committed and acquitted the appellant as well as the manager and the engineer
There was an appeal by the State of Bombay to the High Court against the acquittal of the appellant alone
The High Court disagreed with the interpretation of sub sections
3 and 4 of section 36 by the magistrate and held that  For attracting the application of sub section 3 it is not necessary that a positive act of obtaining permission must be done by a worker or a positive act of granting permission must be done by the occupier or manager
If the occupier or manager acquiesces in the entry he permits the entry
If he connives at the entry then also he permits the entry
If he fails to prevent the entry then also he permits the entry
 658 It went on to say The scheme of the Act which is a welfare legislation is to require an employer to take precautionary measures for safeguarding the lives of his workers prudent or imprudent rash or careful against all possible danger while they are working on the premises of the factory
 It therefore held that as the appellant had not taken all reasonable steps to prevent the workers from entering the pit in case of the machinery getting out of order he had failed to prevent the entry of the workers into the pit and therefore must be held in law to have permitted the entry and committed the breach of sub
section 3 of section 36
As to sub section
4 the High Court was of the view that it was not sufficient compliance with it to provide breathing apparatus etc
only after coming to know that some person was about to enter the confined space and that the apparatus must be kept ready for instant use and must be immediately available near the confined space not only to the person who might enter the confined space with permission but even to the person who might enter the confined space without permission
The High Court therefore set aside the acquittal of the appellant and directed that the appellant s complaint against Vashistha and Tripathi should be first decided by the magistrate thus in effect setting aside the acquittal of Vashistha and Tripathi and thereafter the magistrate should proceed to decide the case against the appellant in the light of the law laid down
There was then an application for a certificate to enable the appellant to appeal to this Court which was rejected
The appellant then applied to this Court for special leave to appeal which was granted and that is how the matter has come up before us
The relevant part of section 36 is in these terms  3 No person in any factory shall enter or be permitted to enter any confined space such as is referred to in sub section 1 until all practicable measures have been taken to remove any fumes which may be present and to prevent any ingress of fumes and unless either 659 a a certificate in writing has been given by a competent person based on a test carried out by himself that the space is free from dangerous fumes  and fit for persons to enter or b the worker is wearing suitable breathing apparatus and a belt securely attached to a rope the free end of which is held by a person standing outside the confined space
4 Suitable breathing apparatus reviving apparatus and belts and ropes shall in every factory be kept ready for instant use beside any such confined space as aforesaid which any person has entered and all such apparatus shall be periodically examined and certified by a competent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration
Taking sub section
3 first the question that falls for consideration is the meaning of the words  be permitted to enter 
The contention on behalf of the State before the High Court was that these words cast an absolute duty on the occupier to prevent the entry of any person in a pit etc
of the kind mentioned in sub section
1 of section 36 and this seems to have been accepted by the High Court
Learned counsel for the appellant however urges that in the context of this provision the duty cast on the occupier is not absolute and there must be some kind of permission whether express or implied to the person entering the pit etc
before the occupier is made liable
In other words it is submitted that it will be for the court on the facts and circumstances of each case to infer whether there was permission express or implied of the occupier to the person who enters the pit etc
Mr Umrigar appearing for the State of Bombay urges before us that this latter construction would make the provision liable to evasion by the occupier
According to him this provision means that whenever anyone enters such a pit etc
the burden is cast on the employer to show that the entry was against the occupier s instructions
He even went to the length of saying that if a worker 660 entered the pit in order to commit suicide it would still be for the occupier to show that the entry was against his instructions and that he did all that he could to prevent it
In this connection he drew our attention to certain other sections in the Act where similar words are used for example sections 51 52 54 60 64 67 68 and 71
We do not think it necessary to consider these other sections in detail
It is enough to point out that there is one vital difference between the provisions of these other sections and the provision contained in section 363
Section 363 prohibits the worker from entering the pit etc
while these other sections have no such prohibition against the worker and cast the entire duty on the employer
Section 363 therefore will have to be construed in the context of the words used therein
It begins with prohibiting any person from entering any such pit etc
The primary prohibition therefore is of the person working in  the factory and others and the effect of this prohibition is worked out in section 97 of the Act
Sub section 1 of section 97 provides that if a worker employed in a factory contravenes any provision of this Act imposing any duty or liability on workers he shall be punishable with fine
Sub section 2 of this section then lays down that if a worker is convicted of an offence under sub section
1 the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention unless it is proved that he fails to take all reasonable measures for its prevention
Reading section 36a with section 97 it is clear that the prohibition of the worker against entering any such pit etc
is absolute and if any worker enters such a pit etc
he is guilty under section 971
In this case if the five workers who are dead were alive they would have been guilty under section 971 for contravening section 36 3 by entering the pit
Then section 97 2 would come into operation and it would be for the prosecution to prove that the occupier or the manager had failed to take all reasonable measures for preventing the entry
The burden thus is on the prosecution to prove that the occupier or the manager had not taken all reasonable steps for preventing the entry and not on the occupier or the manager to prove that he 661 had taken all such reasonable steps
The Court will therefore have to consider all the facts and circumstances in a particular case to see if the burden has been discharged by the prosecution
It is in this background that we have to consider the meaning to be given to the words  be permitted to enter  appearing in section 36 3
It seems to us that in the circumstances these words do not cast an absolute duty on the employer to prevent the entry and the mere fact that a person has entered such a pit etc would not by itself prove that he bad been permitted to enter
The Court will have to look into the facts and circumstances of the case to come to the conclusion whether the person who entered the pit was permitted to do so and mere entry would not necessarily lead to the conclusion that there was permission to enter whether express or implied
The magistrate in this case seems to have thought that a positive act of obtaining permission must be done by the worker or a positive act of granting permission must be done by the occupier or the manager though he has not said so in so many words
It is not necessary that there should be a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or the manager
What the court has to see is whether on the facts and circumstances of a particular case it will be reasonable to infer that the entry was with permission whether express or implied
The High Court also with respect seems to have gone too far on the other side when it said that it was the duty of the employer to take all the precautionary measures for safeguarding the lives of his workers prudent or imprudentrash or careful against all possible danger whilethey are working on the premises of the factory
Thiswould imply that there was an absolute duty cast on the employer to prevent the entry irrespective of the considerations that might arise on the facts and circumstances of a particular case
The true view of section 36 3 in our opinion is that the primary duty is cast on the worker or any other person prohibiting his entry into any such pit etc
At the same time the occupier is also liable if his permission 84 662 to the entry whether express or implied can be inferred on the facts and circumstances of the case IS but this permission cannot in all cases be inferred by the mere fact of the entry
The High Court has remanded the case to the magistrate for retrial and in that retrial the magistrate will proceed to consider the liability of the occupier in the light of the observations made by us on the construction of section 36 3
Turning now to sub section 4 it will be found that it is in two parts
The first part provides that suitable breathing apparatus reviving apparatus belts and ropes shall in every factory be kept ready for instant use beside any such confined space as aforesaid which any person has entered
This to our mind means that if for any reason a person has to enter such confined space the apparatus etc shall be kept ready for instant use beside such space
The duty for keeping the apparatus ready beside the space arises only when a person is entering the confined space obviously with the permission of the occupier or the manager
We do not think that sub section
4 contemplates that the apparatus etc shall always be kept ready near the confined space whether there is any occasion for any person to enter it or not
The necessity of keeping the apparatus etc ready near the confined space arises when any person is about to enter such space obviously with the permission of the employer
The second part of the section provides that all such apparatus shall be periodically examined and certified by a competent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration
This clearly shows that the apparatus etc must always be available in the factory though it need not be kept near the confined space till such time as some one is about to enter it
There will be no possibility of periodical examination and training of sufficient number of persons in the use of the apparatus unless the apparatus was always available in the factory
The duty cast by sub section
4 is absolute
So far as the first part is concerned the duty of keeping the apparatus 663 ready for instant use near the confined space arises as soon as a person is about to enter it obviously with the permission of the occupier
So far as the second part is concerned it is the duty of the occupier to see that the apparatus is always available in the factory and is periodically examined and certified fit for use and a sufficient number of persons are trained in its use
The view taken by the magistrate of the effect of this section is not correct and the view taken by the High Court is right except that it is not necessary to keep the apparatus all the time near the confined space
The High Court has ordered retrial with respect to the contravention of sub section
4 also and the magistrate who now retries the case will do so in accordance with the construction of the sub section given by us
We have carefully refrained from saying anything on the facts of this case as there is going to be a retrial and it will be for the magistrate to consider all the facts and circumstances before coming to a decision one way or the other
The appeal is hereby dismissed
Appeal dismissed


Summary:
A Bill introduced in the House of the People on the report of the States Reorganisation Commission and as recommended by the President under the proviso to article 3 Of the Constitution contained a proposal for the formation of three separate units viz 1 Union territory of Bombay 2 Maharashtra including Marathawada and Vidarbha and 3 Gujrat including Saurashtra and Cutch
This Bill was referred by the President to the State Legislatures concerned and their views obtained
The joint Select Committee of the House of the People Lok Sabha and the Council of States Rajya Sabha considered the Bill and made its report
Subsequently Parliament amended some of the clauses and passed the Bill which came to be known as the 
That Act by section 81 constituted a composite State of Bombay instead of the three separate units as originally proposed in the Bill
The petition  out of which the present appeal has arisen was filed by the appellant under article 226 of the Constitution in the High Court of Bombay
His contention was that the said Act was passed in contravention of the provisions of article 3 of the Constitution since the Legislature of Bombay had not been given an opportunity of expressing its views on the formation of the composite State
The High Court dismissed the petition
Held that the proviso to article 3 lays down two conditions and under the second condition therein stated what the President has to refer to the State Legislature for its opinion is the proposal contained in the Bill
On a true construction the proviso does not contemplate that if Parliament subsequently modifies that proposal there must be a fresh bill or a fresh reference to the State Legislature
The word State  in article 3 of the Constitution has obvious reference to article i and the States mentioned in the First Schedule to the Constitution and the expression Legislature of the State  means the Legislature of such a State
There are therefore no reasons for the application of any special doctrine of democratic theory or practice prevalent in other countries in interpreting those words nor any justification for giving an extended meaning to the word State  in determining the true scope and effect of the proviso
77 606 The requirements of article IV section 3 of the American Constitu tion are materially different from those of the second proviso to article 3 Of the Indian Constitution and consequently decisions based on the former are not in point
State of Louisiana vs State Of Mississipi 1905 202 US
I and State of Washington vs State of Oregon 19O8 2II US 127 held inapplicable
State of Texas vs George W White  referred to
It is not correct to contend that the word Bill  in the proviso must be interpreted to include an amendment of any of the clauses of the Bill or at least a substantial amendment thereof and that any proposal contained in such amendment must be referred back to the State Legislature
Such an interpretation of article 3 will nullify the effect of article 1221 and is untenable in view of the provisions in articles 117 and 118 of the Constitution
Although the formation of a composite State in terms of section 8 of the Act was without doubt a substantial modification of the proposal as originally contained in the Bill it could not be said that the said modification was not germane to the subject matter of the original proposal or was a direct negative thereof so as to be beyond the scope of an amendment
T H Vakil vs Bombay Presidency Radio Club Ltd 1944 47 Bom
LR 428 applied
Therefore the Act could not be held to have been enacted in violation of article 3 Of the Constitution