STATE OF GUJARAT Vs. CHHAGANLAL MAVJI

JUDGEMENT

(1.) The appellant herein is the State of Gujarat and it has appealed against the order of acquittal passed by the learned Judicial Magistrate First Class Manavadar in Criminal Case No. 982/1972 of his Court. The charge against the accused was that he had failed to provide proper safe-guard against moving parts of a machinery in his factory as required by sec. 21(1)(iv)(c) of the Factories Act 1948 and had thereby committed an offence punishable under sec. 92 of the Factories Act.

(2.) The prosecution case was that the accused was the Manager of M/s Prabhat Solvent Extraction Industries Ltd. Manavadar which was running a factory for the extraction of oil from oil cake which is a byeproduct of oil-expeller industry. This was a factory as defined by sec. 2(m) of the Factories Act 1948 and that fact is not in dispute. The case of the prosecution was that for dealing with the raw material viz. oil cake there is a sifter which is referred to on the record as Charna. After the material is sifted through the Charna the material passes to the horizontal conveyer from the bottom of Charna. Through the horizontal conveyer the material passes on to the vertical conveyer and then the material passes to other parts of the factory. In between Charna and the verticle conveyer is a space of about 2 1/2 feet. The horizontal conveyer is kept under-ground below this space of 29 1/2; ft. persons pass over the horizontal conveyer. Each of the conveyers horizontal as well as vertical has moving parts called worms and on rotation of the works when the conveyer is working the material passes along the conveyer from one end to another. The worms are rotated by electric motor and belt. Each of the three parts of the machinery the sifter horizontal conveyer and the vertical conveyer works by electricity and there is a separate switch for each of these separate parts of the machinery. In order to see whether the worms are clean or not or in order to clean the horizontal conveyer when the material gets stuck up in that conveyer an opening called a window 19 10 is provided just above the horizontal conveyer on the ground level. There is a lid on this window so that when the lid is closed the workers can walk over the lid of the window without any hazard to themselves. The end of the window nearest to the vertical conveyer is only 51 away from the vertical conveyer. In order to see whether the worms are clean or not or in order to clean the horizontal conveyer the electric motors of both the vertical and horizontal conveyer have to be stopped and then the worms are to be cleaned. The vertical conveyer is in a sealed condition and cannot be seen but one can see whether it is working or not from the belt or the starter of the motor. Even from the noise made by the vertical conveyer when it is working one can find out that the vertical conveyer is working. If any one of the three parts is not working and there is some blockage or stopping of movement of the raw material all the three parts are to be stopped by stopping the three electrical motors.

(3.) On May 13 1970 one worker Ladha Dewraj working in this factory found that some material had got stuck in the horizontal conveyer and he therefore stopped the horizontal conveyer opened the window and began to clean it but the vertical conveyer was not stopped and it was in motion at the time. While cleaning the horizontal conveyer the hand of the workman came into contact with one of the worms of the vertical conveyer and he suffered an injury. Thereafter the Factory Inspector Shantilal P.W. 1 the complainant in the case visited the factory on May 14 1970 and inquired into the incident. He also saw the injured person in the Civil Hospital at Junagadh. According to the Factory Inspector the small window on the horizontal conveyer was not proper so far as the protection of the worker was concerned. The accused could have provided bars on the small window so that any worker putting his hand inside the window would not come into contact with the vertical conveyer while cleaning the horizontal conveyer. The worker was not in a position to see the vertical conveyer working. The evidence on the record clearly establishes in this case that the injured person Ladha was in charge of the vertical conveyer as well as horizontal conveyer and according to the normal procedure he should have stopped the vertical conveyer as well; but it is well-settled that merely because a worker is a bit careless in his work or is likely to be careless in his work the employer or the occupier of the factory is not absolved of his duty to provide guards or fencing against the moving parts of the machinery with which he is likely to come into contact. In the instant case the distance between the end of the window which was meant for cleaning horizontal conveyer and the vertical conveyer was only 51. A worker putting his hand into the window after it was opened for the purpose of cleaning the horizontal conveyer was likely to come into contact with the moving parts of the vertical conveyer if the vertical conveyer was working.