EMPEROR Vs. RAMANLAL DALSUKHBHAI SHAH

JUDGEMENT

(1.) THIS is an application in revision against the conviction of the applicant under Section 60(a)(iv) of the Factories Act, 1934, for leaving unfenced the hot water circulating tank in the Saraspur Mills in contravention of Rule 55 of the Bombay Factories Rules, 1935. The applicant is the manager of the Saraspur Mills, Ltd., Ahmedabad. On April 29, 1943, Mr. Kagal, Senior Inspector of Factories, Ahmedabad, visited that mill and discovered that the old wall which provided a fencing to the hot water circulating tank had been pulled down, and its place was taken by a wall of the newly built room of the Dyeing Department which was at a distance of about three or four feet from the old wall of the fence, and the space which was thus left open between the tank and the wall of the room of the Dyeing Department was used for storing articles required for the repairs of the nozzles in the hot water circulating tank. There was a window in the north-western corner of the wall of the room of the Dyeing Department, 3' 6" X 3' 6", which gave access to the edge of the tank from the Smithy Department. THIS amounted to a failure to provide secure fencing to the hot water circulating tank as required by Rule 55 of the Bombay Factories Rules, 1935. The Inspector, therefore, filed a complaint against the applicant. The applicant was tried by the First Class Magistrate, Ahmedabad, and a charge was framed against him under Section 60(a)(iii) of the Factories Act, 1934. It was contended before the learned Magistrate that Rule 55 of the Bombay Factories Rules, 1935, was ultra vires of the Provincial Government. But the learned Magistrate held that the Provincial Government had framed the rule under Section 32(g) of the Factories Act, 1934, and that the rule was not ultra vires. On this view, he convicted the applicant under Section 60(a)(iv), instead of under Section 60(a)(iii), of the Factories Act, under which he was charged, and sentenced him to a fine of Rs. 200.

(2.) THE applicant appealed to the Sessions Court, and the learned Sessions Judge summarily dismissed the appeal with a remark that he had perused the order of the learned Magistrate and had fully considered the arguments of the appellant's learned advocate. From the memorandum of appeal it appears that various points of law were raised op behalf of the appellant, and it would have been better if the learned Sessions Judge had given his reasons for agreeing with the view taken by the learned Magistrate.

(3.) MR. Shah for the applicant points out that Section 24 is specially intended to provide for some additional requirement of adequately fenced parts of a machinery. In the case of those parts which fall within Sub-section (1), Clauses (a) and (b), or which are prescribed under Clause (c) of Sub-section (1) of Section 24, the machinery itself is to be fenced adequately. In the case of other parts of the machinery, Government has no power to prescribe any provisions by rules, but the Inspector is given power by Sub-section (2) of Section 24 to serve a notice on the manager of the factory requiring him to carry out the measures specified by him. In these circumstances the Provincial Government cannot frame any rule in respect of a part of the machinery which falls under Sub-section (2) of Section24. In support of this contention, he relies upon the ruling in Emperor v. Hassim Ibrahim (1942) 44 Bom. L.R. 810 where it is held that the Provincial Government has no power under Section 22 of the Factories Act, 1934, to make general rules covering the subject of means of escape against fire, which is dealt wish by Section 23, and Section 23 is not to be enforced by means of rules. Applying the principle laid down in that ruling, MR. Shah contends that the Provincial Government has no power to make any rules for fencing any part of the machinery not falling under Section 24(i)(c), since Sub-section (2) of that section provides for the fencing of such parts of the machinery in a factory. On the analogy of the principle laid down in that ruling, Rule 55 also would have been ultra vires had it been intended to require fencing to part of the machinery, but it is a mere accident that the particular tank with which this appeal is concerned happens to be capable of being regarded as a part of the machinery in the factory. But Rule 55 is not intended to be applicable to any particular type of tank. It prescribes a general provision for the fencing of all pits, tanks, gutters, excavations or open vessels which are regarded as dangerous to human life or safety whether they are parts of the machinery or not. It is a general rule which has evidently been framed under Section 32(g) and has been misplaced under the heading " Fencing", so as to indicate that it is framed under as. 24 and32. But on that account it cannot be held to be ultra vires of the Provincial Government. We hold that it has been duly framed under the powers conferred upon the Provincial Government by Section 32(g) of the Act. Hence though the charge against the applicant was under Section 60(o(iii), he has been rightly convicted under Section 6o(a)(iv) of the Act.