STATE OF GUJARAT Vs. S P NAIR

JUDGEMENT

(1.) This appeal is filed by the State of Gujarat against the order of the Judicial Magistrate First Class at Veraval acquitting the accused of the offence under section 92 of the Factories Act. The accused is a factory manager of the Indian Rayon Corporation Limited and the factory is situated at Veraval. The case of the prosecution is that on 6th January 1964 one worker K. Parmeshwaran Pillai was working on the shredder machine as a paid apprentice operater. The shedder machine is working continuously. The speed of the common shaft of the screw conveyor and the shredder is about 150 revolution per minute. The diameter of the hole in the shedder at the bottomside is about 8 and the screw conveyor worms are situate just near the hole which is at a height of about 2 ft. from the floor level so as to be easily accessible to the workers hand. This hole was covered by a flange with two nuts which in that position serves as a guard to the running screw conveyor worms. The duty of the operator was to note down the ampere reading of the electric current every half an hour and if the reading exceeded 50 amperes; jam ming was indicated and it was the duty of the operator to open the said flange covering the screw conveyor worms by removing the two bolts. As soon as the flange was opened the alkaline cellulose would be stopped being fed to the shredder and the viscous liquid would immediately get out of the hole and thereby jamming would get automatically removed. This operation had to be done by the operator whenever there was jamming. On the day of the incident when the ampere reading was 85 the worker K. Parmeshwaran Pillai tried to open the flange to remove jamming. He applied his left hand for this operation and his hand slipped and as it came in contact with the running screw conveyor worms of the shredder half of his left thumb the whole first and second fingers and a portion of the third finger upto two phalanges were chopped off. The complainant factory inspector visited the factory and inquired into this accident. As he found that at the time of the accident to the said worker the shredder machine with its screw conveyor worms had been running at a speed of 150 revolutions per minute without any guard in front of the hole of the shredder to prevent contact with the screw conveyor worms which was a dangerous part of the machine he has filed this complaint against the accused for contravention of section 21(2)(iv)(c) of the Factories Act 1948 hereinafter referred to as the Act which is punishable under section 92 of the Act. The defence of the accused was that it was not possible to take any further precaution and that the flange itself served as the guard for the screw conveyor worms. Besides the operator had been instructed to work carefully when the reading exceeded 50 amperes and the flange had to be opened. The operator had to remove the nuts and he had not to touch the flange as the viscous liquid would automatically fall down. If something more was necessary to be done he had to inform the Chief Chemist. The learned Magistrate held that the worker was not expected to touch the machine after opening-the flange and therefore this was not a foreseeable accident and that there was no liability to provide any other guard except the flange as the said act of adjustment was excluded by the proviso to section 21(2)(iv)(c) of the Act. Accordingly he acquitted the accused and hence the State has filed the present appeal.

(2.) The prosecution was under section 92 of the Act which provides that save as otherwise expressly provided in the Act if in or in respect of any factory there is any contravention of any of the provisions of this Act the occupier and manager of the factory shall each be guilty of the offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both. The contravention alleged is of section 21(1)(iv)(c) of the Act. Section 21(1) provides that in every factory.....(iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced the following namely:- (a) every part of an electric generator a motor or rotary convertor (b) every part of the transmission machinery and (c) every dangerous part of other machinery shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of the machinery they are fencing are in motion or in use. Then follows the proviso which is also material for our purpose. The proviso enacts that for the purpose of determining whether any part of machinery is in such position or is of such construction as to be safe as aforesaid account shall not be taken of any occasion when it being necessary to made an examination of the machinery while it is in motion or as a result of such examination to carry out any mounting or shipping of belts lubrication or adjusting operation while the machinery is in motion such examination or operation is made or carried out in accordance with the provisions of sub-section (1) of section 22. Section 22 provides limitations for carrying out the examination or as a result of the examination the operation of mounting up of belts lubrication or other adjusting operation if they are necessary to be done while the machinery is in motion on fulfillment of the safeguard provided in that section. This section runs as under:-

(3.) Section 21(1) clause (iv) casts an absolute obligation to fence securely every part of an electric generator a motor or rotary convertor every part of the transmission machinery and every dangerous part of any other machinery. This obligation of securely fencing such dangerous part is not complied with by merely providing a safeguard of substantial construction but such safeguards must always be kept in position while such dangerous parts of the machinery which they are fencing are in motion or in use. The only exception is in cases where by reason of its position or construction such dangerous part is safe to every person employed in the factory as if it was securely fenced. The position of the dangerous part of its construction must be such as to make it inaccessible to every employed person as if it was securely fenced. If the dangerous part is at such height that it is inaccessible or its construction is such that it is so safe as if it had been securely fenced the requirements of the section are complied with. It is also implicit in this absolute obligation to safeguard that it is qualified by the test of foreseeability. The normal rule of providing and maintaining the safeguard in position therefore does not apply and the machine may be left unguarded if it is so safe as if it was securely fenced in respect of every employed person by reason of its position or its construction or if the risk from the unguarded machine was not a foreseeable risk. As the exception contemplates the part being safe and inaccessible to each and every one of the persons employed a further exception had to be carved out in the shape of a proviso to exclude certain occasions to determine whether the part was in such position or was of such construction when out of necessity the concerned worker had to be permitted to have access to such dangerous part while the same is actually in motion. The occasion would be one of examination or as a result of such examination or some operation like the mounting of the belt lubrication or other adjustment if the same was necessary to be done while the machinery was in motion. The Legislature had either to permit such risk being taken by allowing such necessary examination or consequential adjustment operated to be carried out while the dangerous part of the machine was in motion or to suffer loss of production or even interruption of the continuous process. If even in such cases the Legislature were to insist on absolute safety of any such worker who must have a necessary access to the moving parts such worker would be required to carry out even such work of necessary examination or even of consequential adjustment only after stopping the machinery. The Legislature therefore struck a just balance between the need of absolute safety and the need of machinery being kept in motion and permitted certain workers to approach the unguarded machinery in motion provided such work was carried out in accordance with the limitations enacted in section 22(1) which guaranteed at least in a limited manner some measure of safety even to such workers. Once this exception was provided the Legislature had to enact this proviso to section 21(1)(iv) by excluding such occasions of work by these special workers in judging the safety of the unguarded machinery by reason of its position or construction in respect of every person employed in the factory in so far as such workers were in terms permitted to have access thereto subject to the limitations provided in sec. 22(1). The occassions which are included in the proviso to section 21 and on which the Legislature permits access to an unguarded machinery in motion must therefore fulfil the following conditions:-