K L VIJ Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an appli cation under section 482 Cr. P. C. to quash the proceedings pending against the applicant on the basis of a complaint under section 92 of the Factories Act, 1948, filed by the Inspector of Factories opposite party No. 3 in the Court of the C.J.M., Rampur. It is alleged in the complaint that the applicant is the Manager of M/s. Raza Textiles Ltd., Rampur and that the management did not make effective arrangements for the disposal of wastes and effluents coming out of the factory when the factory was inspected on 10-2-1975 in spite of the fact that the arrangements made for the disposal of effluents were not found to be effective and were disapproved by the Effluent Board on 30-10-1974. The applicant thus committed a breach of section 12 of the Factories Act, 1948 (hereinafter re ferred to as the Act) read with Rule 18 of the U.P. Factories Rules, 1950 (here inafter referred to as the Rules) which was punishable under section 92 of the Act. M/s. Raza Textiles Ltd. were in exis tence when the Rules came into force. Rule 18 of the Rules runs as follows :- "Disposal of trade-wastes and effluents :- (1) The arrangements made in accordance with sub-section (1) of Section 12 for the disposal of effluents shall be approved by the Effluents Board constituted by the State Government for the purpose. (2) The Effluent Board shall consist of the following members : Chairman (a) Director of Medical and Health Services, Uttar Pradesh, Lucknow. Member-Secretary (b) Chief Inspector of Facto ries, Uttar Pradesh, Kanpur. Members (c) Assistant Director, Provin cial Hygeine Institute, Lucknow. (d) ......(Deleted). (e) Chief Engineer, Local-Self Government Engineering Department, Uttar Pradesh, Lucknow. (f) Chief Engineer, Irrigation Department, Uttar Pradesh, Lucknow. (g) Director of Agriculture, Uttar Pradesh, Lucknow. (h) Medical Officer, Inhcarge Industrial Health Organisation, Kanpur, (i) Head of Chemical Engi neering Section, Harcourt Butler Technological Institute, Kan pur. (j) Chairman, Indian Sugar Mills Association, U.P. Branch. (k) Other members not exceed ing five in number may be ap pointed by the State Government. (3) Term of office of the Mem bers of the Board- (i) The term of office of a non-official nominated members of the Board shall be two years com mencing from the date of his nomination : Provided that such member shall, notwithstanding in the expiry of the said period of 2 years, continued to hold office until his successor is nomineted. (ii) A non-official member of the Board, nominated to fill casual vacany, shall hold office for the remaining period of the term of the office of the member in whose place he is nominated. (iii) The official members of the Board shall hold office during the pleasure of the State Government. (4) Travelling allowance.-A non-official member of the Board shall be entitled to draw travell ing and daily allowance for any journey performed by him in connection with his duties as mem ber of the Board at the rates and subject to the conditions laid down in notes 2 and 3 under rule 20 in Financial Handbook, Volume III. (5) Meetings-The Chairman of the Board may call a meeting of the Board at any time he thinks fit. (6) (i) The Chairman shall pre side at the meetings of the Board. (ii) In the absence of the Chairman at any meeting, the members shall elect from amongst themselves by a majority of votes a member who shall preside at such meeting. (iii) No business shall be transacted at any meeting unless at least 5 members are present. (7) Every Factory in existence on the date of the enforcement of this rule shall submit to the Board an application, along with detailed plans of the arrangements pro posed to be made, or in existence, in accordance with this rule. (8) The application made under sub-rule (7) shall be accompanied with following documents :- (a) A brief description of the process in its various stages to be submitted in the proforma prescribed by the Effluent Board in 18 copies. (b) Plans in 18 copies drawn in scale showing : (i) the site of the arrange ment and its immediate sur roundings includings adjacent buildings and other structures, roads, drains etc. (ii) the place where the wastes and effluents are to be finally disposed of such as sewar, rivulet, pond, river, canal or on land. (iii) P.H. value of the effluent as it may leave the factory. (iv) Parts per million off lenting or suspended matter of the size 1/32" of the effluent to be finally disposed of. (v) Biochemical Oxygen con-Demun (as p.p.m.) of Oxygen of effluent. (vi) Dissolved Oxygen con tent (at p.p.m.) of the receiv ing water in the water course, if any, at the point of dis charge of the effluent one beyond 100 years of vesting point. Note.-The analysis report from the Provincial Hygeine Institute, Lucknow, shall be considered as proof for the above parts (iii), (iv), (v) and (vi). (9) Factories to be installed or registered and licenced after the date of the enforcement of this rule shall submit an application in accordance with sub-rule (7) and shall get their arrangements approved before they discharge their effluents in sewar, rivulet, pond, river canal or on land. (10) The Board may call such other information as it considers necessary for the consideration of the application of the factory or may require a representative of the factory to be present for per sonal discussion. No travelling allowance shall, however, be allow ed to the representative for such journeys. (11) If the Board approves of the arrangements, the plans in duplicate shall be returned to the factory duly signed by the Secre tary on the Board. behalf of (12) All correspondence with the Board shall be addressed to the Secretary of the Board. (13) The members of the Board shall have power to visit factories for purposes of inspecting the arrangements made under sub- section (1) of Section 12 of the Act. (14) The Manager, or the occu pier, of the factory may, within thirty days of the date of the deci sion of the Board, appeal against it to the State Government whose order shall be final." Under sub-rule (7) of Rule 16, the factory which was in existence on the date of the enforcement of the Rules was required to submit to the Board an application along with the detailed plans of arrangements proposed to be made, or in existence, along with the documents mentioned in sub-rule (8). The com- plaint filed by opposite party No. 3 does not indicate that the applicant commit ted a violation of sub- rule (7) or sub-rule (8) of rule 18 of the Rules. The complaint indicates that the plan of the arrangements for the disposal of wastes and effluents which was submitted by the factory was disapproved by the Board on 30-10-1974 and even after the disapproval no effective arrange ments were made for the disposal of wastes and effluents on 10-2-1975 when the factory was inspected by opposite party No. 3. Plain reading of Rule 18 of the Rules indicates that all that is required from an existing factory is the submis sion of the plans of the arrangements proposed to be made or in existence for 4 the disposal of wastes and effluents along with the documents mentioned in sub-rule (8) : Rule 18 does not mention what the existing factory is to do after the plans submitted are disapproved by the Board. It is not stated in Rule 18 either that the existing factory should stop functioning after the plans for the disposal of wastes and effluents are dis approved by the Board or it should submit fresh plans for the discharge of wastes and efflunets within a specified time. Rule 18 is thus completely silent regarding the consequences that are to follow as a result of the disapproval of the plans that are submitted with regard to the arrangements made for the discharge of wastes and effluents by a factory which was in existence when the Rules came into force. Section 12 of the Act runs as follows :- "Disposal of Wastes and Effluents. -(1) Effective arrangements shall be made for the disposal of wastes and effluents due to manufacturing pro cess carried on therein. (2) The State Government may make rules prescribing the arrange ments to be made under sub-section (1) or requiring that the arrangements made in accordance with sub-section (1) shall be approved by such autho rity as may be prescribed." It is admitted by the opposite parties that the State Government has not made any rules prescribing the arrangements to be made under sub-section (1) of Section 12 of the Act. Rules have only been made requiring that the arrange ments made in accordance with sub section (1) shall be approved by such authority as may be prescribed. It is true that once the plans regarding the disposal of wastes and effluents submit ted by a factory, which was in existence when the Rules came into force, are dis approved, the arrangements regarding the disposal of wastes and effluents are not effective but from this it cannot be inferred that the existing factory must stop working immediately after the plans for the disposal of wastes and effluents have been disapproved by the Board as this is not contemplated by the Rules. It is also not mentioned in the Rules that fresh plans have to be sub mitted regarding the disposal of wastes and effluents by an existing factory with in a specified time. Thus in the absence of any rule that the existing factory must stop functioning till fresh plans are approved by the Board, even if the existing factory continues working after the original plans for the disposal of wastes and effluents have been dis approved by the Board, it cannot be held that it has violated sub-section (1) of Section 12 of the Act. It may be men tioned that in the present case, the order of the Board dated 30-10-1974 shows that the B. O. D. of the sample of the effluent discharged from the factory of the applicant was 900 p. p. m. which was high and resulted in the disapproval by the Board of the plans of the arrangements made for the disposal of the effluents. The order of the Board how ever does not indicate what should have been the B. O. D. of the effluents. In these circumstances it was not possible for the applicant to submit a fresh and proper plan regarding the arrangements for the disposal of effluents from the factory. Thus even if the allegations contained in the complaint are accepted, the applicant has not committed any breach of either Section 12 of the Act or Rule 18 of the Rules. He cannot, therefore, be held guilty under Section 92 of the Act. THIS application is accordingly allowed and proceedings against the applicant pending in the Court of the C. J. M., Rampur on the basis of the complaint filed by the Inspector of Factories, Incharge Bareilly Region, Bareilly, under Section 92 of the Act are quashed.