EDWARD GRAYSON HARVELL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS application has been filed with a prayer to quash the proceeding initiated by the Sub -divisional Judicial Magistrate, Jharsuguda, in Complaint Case No. 2 (C) CC 105/2001 against the petitioner, who is described as occupier of M/s. Ib Thermal Power Station, Banharpalli, Dist. Jharsuguda.

(2.) THE short facts relevant for disposal of this application are that the aforesaid complaint case has been filed alleging violation of Sections 62 and 7 A(2)(b) of the Factories Act, 1948 (in short 'the Act) as well as Rule 62 -D of the Orisa Factories Rules, 1950 (hereinafter 'the Rules) punishable under Section 92 of the Act jointly against the petitioner in his capacity as the occupier of the Ib Thermal Power Station (ITPS) and against respondent No. 2 in his capacity as the Deputy General Manager (P&IR) and Manager under the Act of the aforesaid ITPS. The further allegation in the complaint is that the petitioner and respondent No. 2 had engaged some workers for stone pitching work relating to the in -take channel (water reservoir) in their factory. On 17th April, 2001 in course of performance of the said work, one of the workers by name Pravin Nayak, who was a mason, drove a tractor carrying certain co -workers and the tractor hit a heap of boulders on the bank resulting in the death of said Pravin Nayak. It has been alleged that the deceased was unauthorisedly driving the vehicle and also did not have a valid licence to drive the vehicle. The allegation against the petitioner and respondent No. 2 is that they have failed to take any safety measures in the performance of the aforesaid work and that they have failed to enter the details of the workers in the factorys register of adult workers.

(3.) FOR the sake of convenience, it would be appropriate to quote hereinbelow the provisions of Section 7 -A (2)(b) of the Act : "7 -A. General duties of the occupier -(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory. (2) Without prejudice to the generality of the provisions of Sub -section (1), the matters to which such duty extends, shall include - (a) ......... (b) the arrangement in the factory for ensuring safety and absence or risks to health in connection with the use, handling, storage and transport of articles and substances; xxxxxx xxxxxx xxxxx Learned counsel for the petitioner further submitted that the prosecution is based upon the statement made by one Anupam Mohapatra, Team Leader of the Support Services of the ITPS, Banharpalli, on the 14th May, 2001 before the Inspector of Factories and Boilers. The said statement of Anupam Mohapatra, which is enclosed to the complaint petition (Annexure -A) tends to reveal that while the tractor was parked near the camp, its driver Bhimsen Saha had gone to canteen for taking tea and the helper of the tractor Bihari Oram was guarding the tractor with the key. Pravin snatched away the key from Bihari and started driving the tractor. Then he forced others to seat in the empty trolley of the tractor. Out of fear four female workers sat on the trolley and Bihari Oram stood on the connecting link between the tractor and the trolley. Pravin then drove the tractor from the camp house towards the stone pitching area where plying of transport vehicle was not allowed as work was in progress. After driving about a length of 900 mtrs. the left wheel of the tractor hit a boulder on the bank and Pravin lost his balance and could not control the tractor, which fell down towards the outer side of the slope. Bihari Oram and four female workers jumped from the tractor just before falling of the tractor and saved themselves. Statements of a female worker, namely, Tara Khadia,the tractor helper and the driver, namely, Bihari Oram and Bhimsen Saha, were also recorded. The said statements have been enclosed to the complaint petition. They have stated that on 27.4.2001, Parvin Nayak was the Sardar and he was totally in a drunken state. Parvin persuaded the female workers to sit on the trolley so that he would take them for fetching boulders. Relying upon these statements, learned counsel for the petitioner submitted that it cannot be said that the petitioner violated the provisions of Section 7 -A (2)(b) of the Act by not ensuring safe movement of vehicle for use, handling, storage and transport of articles in the factory causing loss to valuable lives. Though the learned counsel for the petitioner stretched his argument to the extent that this work was only connected to a construction work to which the provisions of the aforesaid section were not applicable, a bare reading of the prosecution report, which is annexed to the complaint petition (Annexure -A), reveals that there is no allegation of violation of the provisions of Section 7 -A (2)(b) of the Act. The manner in which the accident occurred was due to act of an irrational person done in a whimsical manner which will never attract Section 7 -A(2)(b) of the Act in the absence of any specific allegation to that effect. So, the prosecution against the petitioner, so far as the provisions of Section 7 -A (2)(b) are concerned, is not maintainable. But so far as the prosecution against the petitioner for the offences under Section 62 of the Act and Rule 62 -D of the Rules is concerned, I am not inclined to interfere with the order of cognizance.