LARSEN AND TOUBRO LIMITED ECE CONSTRUCTION GROUP PONDICHERRY Vs. CHIEF INSPECTOR OF FACTORIES GOVERNMENT OF PONDICHERRY

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned Government Pleader for Pondicherry State , taking notice on directions from this Court. Since the matter is directly covered by the Division Bench decision of this Court reported in Ion Exchange ( India )Limited v. The Deputy Chief Inspector of Factories, Salem , 1995 (2) CTC 156, the main writ petition itself is taken up for final hearing even at this stage of admission.

(2.) THIS writ petition relates to the interpretation of the word'occupier'found in the Factories Act, 1948. The petitioner company is situated at Mylam Road. They are proposing to put up "re-rolling Mill" at its premises at Mylam Road, Sedarapet,Pondicherry . The petitioner is engaged in the production of Angles, challens, for steel rods and it proposes to employ about 150 workmen. The Board of Directors of the petitioner company made an application dated 27-10-1995 to the 1st respondent herein, the Chief inspector of Factories, to appoint the Joint General Manager P. K. Venkatakrishnan as the'occupier'for the proposed unit in term of Sec. 2 (n) of the Factories Act. According to the petitioner, they have filled up the necessary Form No. 2 prescribed under Rules 4, 5 and 11 of the Factories Act and paid Rs. 3,200 towards the fee required under the Act. They applied for licence for the year 1996. The 1st respondent passed an order bearing No. 1-4/c1/fb/a1/95, dated 15-11-1995 rejecting the application on the ground that only a Director can be the'occupier'of the proposed unit. It is in these circumstances, the present writ petition is filed to quash the order of the 1st respondent.

(3.) FROM the proviso (iii) to the amended Sec. 2 (n), it is clear that in the case of a factory owned or controlled by Central Government or any State Government or local authority, the person appointed to manage the affairs of the factory is deemed to be "occupier". There is no reason why in the case of a factory owned by a company the legal position should be otherwise. No such violent departure is called for by the plain words in proviso (ii ). In any event, as a matter of interpretation when the section speaks of "deeming" it enacts a fiction to cover a vacuum. If in reality, there is no such vacuum and a person exists who is a person already having ultimate control over the affairs of the factory and he is nominated as the "occupier" there can be no scope for any deeming. By failing to see the exact meaning of the expression "deemed" the respondent has committed a serious error of law which vitiates its order. 8. As already seen a division Bench of this Court consisting of the Hon'ble the Chief Justice and raju, J. , had already decided that Joint General Manager can also be appointed as "occupier" which is reported in Ion Exchange (India) Limited v. The Deputy Chief Inspector of Factories, Salem, 1995 (2) CTC 156, mentioned supra. But, the Division Bench has allowed the Writ Petitions in the following terms; " (1) The order passed by the Inspector of Factories, rejecting the application filed for registration of the factory or renewal of the factory licence on behalf of the company or on behalf of the partnership firm, on the ground that such applications are not made either by a Director, in the case of company, or by a partner, in the case of partnership, are quashed. (2) The Inspector of Factories is directed to consider those applications in the light of the observations made in this judgment. It is open to the company or the partnership firm to nominate or appoint any other persons other than a director or a partner as the case may be, a occupier of the factory having ultimate control over the affairs of the factory. In such an event, it is open to the Inspector of Factories to determine as to whether the person so named by the company or by the partnership firm other than a Director or partner, as the case may be, has ultimate control over the affairs of the factory. (3) In some of the writ petitions, pursuant to the interim orders of this Court, licences have been renewed. In such case, further, any application is made for registration of factory or renewal of licence, the same shall be considered and disposed of in accordance with the directions issued in the judgment. (4) The question as to who should be prosecuted under the act and the Rules framed hereunder, is a matter which is left open to be considered at the appropriate stage in the appropriate case as the same does not arise in the instant case. " * 9. However, such terms as above need not be issued in this case, because, such terms are not warranted as the application for fresh licence has been returned by the 1st respondent only for the following reasons : 1. Joint General Manager could not be nominated as occupier. 2. Any one of the Directors may be nominated as occupier under the T. A. Now that the impugned order is quashed, I direct the respondents to consider the application which even according to the respondents is otherwise in order and to grant licence to the petitioner within two months from the date of receipt of this order. The writ petition is disposed of accordingly and there will be no order as to costs. Consequently, W. M. P. Nos. 27845 and 27846 of 1995 are dismissed as unnecessary. .