Case: Chinubhai Haridas Vs. The State Of Bombay

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 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 S. 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 had 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 imprudent, rash or careful, against all possible danger while they are working on the premises of the factory. This would 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 S. 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 to the entry, whether express or implied, can be inferred on the facts and circumstances of the case; 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 S. 36 (3). 7. Turning now to sub-s. (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-s. (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. 8. 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-s. (4) is absolute. So far as the first part is concerned, the duty of keeping the apparatus read 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 subs-.s (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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]1. 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 S. 36 (3). Section 36 (3) 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 36 (3), 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 S. 97 of the Act.Sub-s. (1) of S. 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-s. (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 failed to take all reasonable measures for its prevention.Reading S. 36 (3) with S. 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 S. 97 (1). In this case, if the five workers who are dead, were alive, they would have been guilty under S. 97 (1) for contravening S. 36 (3) by entering the pit. Then S. 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 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 S. 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 had 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 thet 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.8. 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-s. (4) is absolute. So far as the first part is concerned, the duty of keeping the apparatus read 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 subs-.s (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.