D KUMARSWAMY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned Senior Advocate Shri. K. Kasturi for the petitioners and learned Additional State Public Prosecutor for the respondent. The facts briefly stated are as follows:

(2.) The company had ensured that the labour contractor paid compensation to the family of the deceased, apart from ensuring of other amounts, that would be payable under the provisions of the Workmen's Compensation Act. It is the case of the petitioners that, the unfortunate accident had occurred on account of sheer negligence on the part of Ayyappa, the deceased employee. He was trying to remove the cement, which was stuck on the Malta Kolu, which is used for levelling cement plaster by masons. He was engaged to do masonry work and not to do any production nor was he authorized or required to clean or operate any machine. The equipment in question was used by fanners who supplied cane to the factory to sharpen their sickles, and it was not meant for cleaning the 'Matta Kolu', which was used by the workman. The workman had experience in operating a grinding machine arid since the momentum of spinning of the wheel, resulting in the said 'Matta Kolu' getting stuck in the grinding machine, thereby breaking the wheel into pieces and one of the pieces hitting the workman on his forehead and causing serious injuries, was not as a result of any instructions given to the workman to operate the machine, but it was done on his own and out of sheer negligence. It is this basic defence that is sought to be highlighted in these proceedings. Notwithstanding the same, the respondent namely, the Assistant Director of Factories who is also a Inspector appointed under Section 3(1) of the Factories Act, 1948, (hereinafter referred to as '1948 Act' for brevity) on being informed of the accident having taken steps and having conducted an inspection of the spot where the accident had occurred, on two occasions, namely, on receiving information on 26.11.2011 the concerned officer had visited the factory and inspected the same on 29.11.2011 and conducted a detailed enquiry about, the manner in which the accident had occurred and has opined that, under Rule 83 of the Karnataka Factories Rules, 1969, (hereinafter referred to as '1969 Rules,' for brevity), which reads as follows:

(3.) Further, Section 7A of the Act prescribed general duties of the occupier and has opined that by allowing the workman without instruction, training and supervision to operate the machinery, the occupier had contravened Section 7A(1) and (2) of the 1948 Act and hence, held that the present petitioners had committed the offence punishable, under section 92 of the Factories Act, 1948 and accordingly, prayed the Court of Judicial Magistrate First Class. Bagalkot in C.C. No. 266/2012 seeking punishment of the petitioners by filing the complaint. It is that, which is under challenge in the present petition.