CHINUBHAI HARIDAS Vs. STATE OF BOMBAY

JUDGEMENT

(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 Magistrate's 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.