STATE OF GUJARAT Vs. HARISHBHAI VELJIBHAI THAKKER

JUDGEMENT

(1.) What indeed would be the appropriate forum to initiate criminal proceedings against the accused under the Factories Act, 1948, - "whether the Court of learned Chief Judicial Magistrate or Court of the learned Magistrate First Class, wherein in cases the complainant while specifically alleging contravention of certain provisions of the Act as well as Rules made thereunder, also alleges that the accused was previously found to have been convicted and sentenced for the contravention of very same provision and that repetition of such offence invities punishment under Sec. 94 of the said Act, which provides over and above other things, imposition of fine of not less than ten thousand rupees, etc. etc."? This in short is the question which has arisen for consideration in this appeal in the back-drop of following facts and circumstances.

(2.) According to Mr. D. M. Daberiya, Factory Inspector, Vadodara, on 21-7-1989, when he visited the factory, viz., "Duck Lami Plast" situated at A-1-924, G.I.D.C., Makarpura, Vadodara, Mr. Harish Veljibhai Thakker, occupier of the said factory was found present there. On making inquiry, it came to his notice that one adult worker, namely, Karsanbhai Shukalbhai Prajapati was found working in the Lamination Plant. On further inquiry, it was also learnt that his name as well as names of some other adult workers were not shown in the Register, which was in clear violation of Sec. 62(l)(a) of the Factories Act. On the basis of these facts Factory Inspector Mr. Daberiya filed a complaint before the learned Magistrate, Vadodara. In the said complaint, it was further alleged that the respondent was previously convicted and sentenced to pay fine of Rs. 40.00 for the very same offence in C.C. No. 2660 of 1989. Not only that but it was further pointed out in the said complaint that since the respondent had repeated the very same offence, he was liable to be punished under Sec. 94 of the Factories Act wherein over and above other things, minimum sentence prescribed is fine of Rs. 10,000.00. Thereafter, in response to the summons issued, the respondent appeared before the Court and submitted a purshis Exh. 2 dated 9-3-1990 stating therein to the effect that (i) the worker Karsanbhai Prajapati had come to work for a limited period, and therefore, inadvertently his name could not be mentioned in the register, (ii) he had no bad intention, (iii) his factory was a small unit not having more workers, (iv) he was also facing financial crisis, (v) he was unable to pay fine of Rs. 10,000.00 as stated in the complaint, and (vi) he belong to business community, and therefore, in order to avoid frequent visits of the Court, he prayed for lenient view and mercy in the matter of sentence.

(3.) The learned Magistrate accepting the aforesaid purshis, convicted and sentenced the respondent for the alleged offence punishable under Sec. 61(l)(a) read with Sec. 94 of the Factories Act, 1948 and sentenced him to pay fine of Rs. 2500.00 and in default to undergo S.I. for 15 days, giving rise to the present criminal appeal for enhancement of the sentence.