1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 120 OF 2009 1. Shri S. M. Trehan major, service, r/o. 501/502, Lal Kamal Bldg. 5th Floor, Nutan Co-op. Hsg. Society, 9th JVPD Road, Vile Parle(W), Mumbai-56. 2. Shri M. K. Gupta, major, service, Vice President, Switchgear Business, Jyoti Ltd.J/44, BIDC-Gorwa, Vadodara390 016. ... Petitioners versus 1. The Inspector of Factories Inspectorate of Factories Altinho, Panaji, Goa. 2. The State of Goa (through the Public Prosecutor). ... Respondents Shri Shirish Gupte, Senior Advocate with Shri L. Rubens and Shri S. G. Bhobe, Advocates for the Petitioners. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 29TH MARCH, 2010. 2 ORAL JUDGMENT Heard. 2. This petition filed under Section 482 of the Code of Criminal Procedure, 1973, is directed against Order dated 8-9-2009 of the learned Additional Sessions Judge, dismissing the revision filed against Order dated 16-9-2008 of the learned J.M.F.C. issuing process against the Petitioners herein for certain offences of violation of the G.D.D. Factories Rules, 1985 punishable under Section 92 of the Factories Act, 1948. 3. Heard Shri Shirish Gupte, the learned Senior Counsel on behalf of the Petitioners and Ms. Winnie Coutinho, the learned Public Prosecutor on behalf of the Respondents. 4. The factory of the Petitioners was inspected on 16-6-2003 by the Factories Inspector/Respondent No.1, and thereafter show cause notice was issued on 18-6-2003 and the same was replied to by reply dated 24-6-2003. In the said reply, it was reiterated that the Petitioners had a Factory License duly renewed upto 31-12-2004. It was further stated that the factory did not carry out any manufacturing activity having a hazardous process, as stipulated under Section 41C of the Factories Act that a creche was not being maintained as there was no sufficient number of women employees and as far as the registers 3 are concerned, which is the main bone of contention, it was stated that they were being maintained. 5. On 2-7-2003, the Complainant/Respondent No.1 informed Petitioner No.2 that the reply was not satisfactory on two points i.e. that the factory involved a hazardous process and Register in Form 23 could be exempted only by the Chief Inspector by a written order. 6. The complaint was then filed on 2-7-2003. Petitioner No.1 was referred to as occupier and Petitioner No.2 as Manager. The allegations were in relation to non production of required registers, health/medical records and register of leave with wages in form 23. Learned Senior Counsel submits that it was the duty of the Manager i.e. the Petitioner No.2 to maintain the same and the Managing Director i.e. the Petitioner No.1 who ordinarily resides in Mumbai had no responsibility to maintain the same. It appears that the Petitioners/Accused had filed an application under Section 258 of the Code and in reply thereto the Complainant had conceded that Petitioner No.1 was a permanent resident of Mumbai. Complainant also gave his no objection to delete the name of Petitioner No.1, and further stated that in two other cases only the factory Manager was made a party. A similar concession was made before this Court on 23-6-2008 in Criminal Appeal No.129/2008. Complainant who is present has no objection in deleting the name of Petitioner No.1. In the 4 light of that the petition is bound to succeed and the name of the Petitioner No.1 is bound to be deleted from the complaint, as accused No.1. 7. Consequently, the process issued against the Petitioner No.1/Managing Director shall stand quashed. 8. Only Petitioner No.2 i.e. the Manager shall face the prosecution in the complaint filed by the Complainant but only for violation of relevant Rules punishable under Section 92 of the Act. 9. The complaint appears to be very casually drafted. It appears that wrong Sections were mentioned in the complaint without any allegations of facts. Learned Public Prosecutor submits that Section 41 was inadvertently mentioned when in fact it had to be Section 41C of the Factories Act, 1948. However, I must hasten to add that there is no allegation at all in the complaint that the factory of the accused is involved in any hazardous process requiring the maintenance of health/medical records. Once the name of Petitioner No.1 is deleted and in the absence of any such averment or allegation, the question of proceeding with the complaint under Section 41C of the said Act would not arise. 5 10. As a result, the petition succeeds partly. The name of A-1, the Managing Director shall stand deleted from the complaint and the process issued to him shall stand quashed and set aside. The complaint shall proceed only against A-2, the Manager, as indicated herein above. N. A. BRITTO, J. RD