Case: Chinubhai Haridas Vs. The State Of Bombay

1. This appeal by special leave against the judgment of the Bombay High Court raises the question of the interpretation of sub-ss. (3) and (4) of S. 36 of the Factories Act (LXIII of 1948), (hereinafter called the Act). The brief facts necessary for the 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 S. 33(1) 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. Fikirji 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 soon overcome by poisonous gases and died. Thereafter, Fakirji Dhanjishaw, Maganlal Gordhandas, Chunilal Bechar and Chhotalal Nathubhai went down into the pit without wearing breating 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 is 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 he 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, the appellant was prosecuted as the occupier for the breach of S. 36(3) and (4) of the Act.      2. The appellant took advantage of S. 101 of the Act and filed a complaint against the manager H. D. Vashistha and the engineer H. B. 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 Magistrates satisfication 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.      3. In considering the question whether an offence had been committed, the Magistrate had to interpret sub-ss. (3) and (4) of S. 36 of the Act. He was of the view that no offence under S. 36(3) had been made out as the prosecution had failed to prove any permission, express or implied, to Fakirji Dhanjihaw and others to enter the pit. He was further of the view that no offence under S. 36(4) had been committed because no permission under sub-s. (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.      4. 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 intepretation of sub-ss. (3) and (4) of S. 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."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 the 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-s. (3) of S. 3      6. As to sub-s. (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 appellants 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.

Reasoning:
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.