Factories Act, 1948 Chapter X

Save as is otherwise expressly provided in this Act and subject to the provisions of section 93 , if in, o r in respect of, any factor there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to¹[two years] or with fine which may extend to²[one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to³[one thousand rupees] for each day on which the contravention is so continued:

⁴[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than⁵[twenty-five thousand rupees] in the case of an accident causing death, and⁶[five thousand rupees] in the case of an accident causing serious bodily injury.

Explanation.--In this section and in section 94 "serious bodily injury" me ans an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.]

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1. Substituted by Act 20 of 1987, section 30, for "three months" (w.e.f. 1-12-1998).

2. Substituted by Act 20 of 1987, section30, for "two thousand rupees" (w.e.f. 1-12-1987).

3. Substituted by Act 20 of 1987, section 30, for "seventy-five rupees" (w.e.f. 1-12-1987).

4. Inserted by Act 94 of 1976, section 40 (w.e.f. 26-10-1976).

5. Substituted by Act 20 of 1987, section 30, for "one thousand rupees" (w.e.f. 1-12-1987).

6. Substituted by Act 20 of 1987, section 30, for "five hundred rupees" (w.e.f. 1-12-1987).

Section 93 - Liability of owner of premises in certain circumstances

¹ [93. Liability of owner of premises in certain circumstances

(1) Where in any premises separate buildings are leased to different occupiers for use as separate factories, the owner of the premises shall be responsible for the provision and maintenance of common facilities and services, such as approach roads, drainage, water supply, lighting and sanitation.

(2) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of sub-section (1).

(3) Where is any premises, independent or self-contained, floors or flats are leased to different occupiers for use as separate factories, the owner of the premises shall be liable as if he were the occupier or manager of a factory, for any contravention of the provisions of this Act in respect of--

(i) latrines, urinals and washing facilities in so far as the maintenance of the common supply of water for these purposes is concerned;

(ii) fencing of machinery and plant belonging to the owner and not specifically entrusted to the custody or user of an occupier;

(iii) safe means of access to the floors or flats and maintenance and cleanliness of staircases and common passages;

(iv) precautions in case of fire;

(v) maintenance of hoists and lifts; and

(vi) maintenance of any other common facilities provided in the premises.

(4) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out the provisions of sub-section (3).

(5) The provisions of sub-section (3) relating to the liability of the owner shall apply where in any premises independent rooms with common latrines, urinals and washing facilities are leased to different occupiers for use as separate factories:

Provided that the owner shall be responsible also for complying with the requirements relating to the provision and maintenance of latrines, urinals and washing facilities.

(6) The Chief Inspector shall have, subject to the control of the State Government, the power to issue orders to the owner of the premises referred to in sub-section (5) in respect of the carrying out of the provisions of section 46 or section 48.

(7) Where in any premises portions of a room or a shed are leased to different occupiers for use as separate factories, the owner of the premises shall be liable for any contravention of the provisions of--

(i) Chapter III, except sections 14 and 15;

(ii) Chapter IV, except sections 22, 23, 27, 34, 35 and 36:

Provided that in respect of the provisions of sections 21, 24 and 32 the owner's liability shall be only in so far as such provisions relate to things under his control:

Provided further that the occupier shall be responsible for complying with the provisions of Chapter IV in respect of plant and machinery belonging to or supplied by him;

(iii) section 42.

(8) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out the provisions of sub-section (7).

(9) In respect of sub-sections (5) and (7), while computing for the purposes of any of the provisions of this Act the total number of workers employed, the whole of the premises shall be deemed to be a single factory.]

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1. Substituted by Act 25 of 1954, section 21, for section 93 (w.e.f. 7-5-1954).

Section 94 - Enhanced penalty after previous conviction

¹[( 1 )] If any person who has been convicted of any offence punishable under section 92 is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to²[three years] or with fine³[which shall not be less than⁴[ten thousand rupees] but which may extend to⁵[two lakh rupees]] or with both :

⁶[Provided that the court may, for any adequate and special reasons to be me ntioned in the judgment, impose a fine of less than⁴[ten thousand rupees]:

Provided further that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily in jury, the fine shall not be less than⁷[thirty-five thousand rupees] in the case of an accident causing death and⁸[ten thousand rupees] in the case of an accident causing serious bodily injury.]

⁹[( 2 ) For the purposes of sub-section ( 1 ) no cognizance shall be taken of any conviction made more than two years before the commission or the offence for which the person is subsequently being convicted.]

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1. Section 94 re-numbered is sub-section (1) thereof by Act 94 of 1976, section 41 (w.e.f. 26-10-1976 ).

2. Substituted by Act 20 of 1987, section 31, for "six months" (w.e.f. 1-12-1987 ).

3. Substituted by Act 94 of 1976, section 41, for "which may be extend to one thousand rupees" (w.e.f. 26-10-1976 ).

4. Substituted by Act 20 of 1987, section 31, for "two hundred rupees" (w.e.f. 1-12-1976 ).

5. Substituted by Act 20 of 19 87, section 31, for "five thousand rupees" (w.e.f. 1-12-1987 ).

6. Substituted by Act 94 of 1976, section 41, for the proviso (w.e.f. 26-10-1976 ).

7. Substituted by Act 20 of 1987, section 31, for "two thousand rupees" (w.e.f. 1-12-1987 ).

8. Substituted by Act 20 of 19 87, section 31, for "one thousand rupees" (w.e.f. 1-12-1987 ).

9. Inserted by Act 94 of 1976, section 41 (w.e.f. 26-10-1976 ).

Section 95 - Penalty for obstructing Inspector

Whoever wilfully obstructs an Inspector in the exercise of any power conferred on hi m by or under this Act, or fails to produce on demand by an Inspector any registers or other documents in hi s custody kept in pursuance of this Act or of any rules made thereunder, or conceals or prevents any worker in a factory from appearing before, or being examined by, a n Inspector, shall be punishable with imprisonment for a term which may extend to¹[six months] or with fine which may extend to²[ten thousand rupees] or with both.

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1. Substituted by Act 20 of 1987, section 32, for "three months" (w.e.f. 1-12-1987 ).

2. Substituted by Act 20 of 1947, section 32, for "five hundred rupees" (w.e.f. 1-12-1987 ).

Section 96 - Penalty for wrongfully disclosing results of analysis under section 91

Whoever, except in so far as it may be necessary for the purposes of a prosecution for any offence punishable under this Act, publishes or discloses to any person the results of an analysis made under section 91 , shall be punishable with imprisonment for a term which may extend to¹[six months] or with fine which may extend to²[ten thousand rupees] or with both.

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1. Substituted by Act 20 of 19 87, section 33, for "three months" (w.e.f. 1-12-1987 ).

2. Substituted by Act 20 of 19 87, section 33, for "five hundred rupees" (w.e.f. 1-12-1987 ).

Section 96A - Penalty for contravention of the provisions of sections 41B, 41C and 41H

¹[ 96A . Penalty for contravention of the provisions of sections 41B , 41 C and 41 H

( 1 ) Whoever fails to comply with or contravenes any of the provisions of section 41B , 41 C or 41 H or the rules made thereunder, shall, in respect of such failure or contravention, be punishable with imprisonment for a term which may extend to seven years and with fine which may extend to two lakh rupees, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

( 2 ) If the failure or contravention referred to in sub-section ( 1 ) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to ten years.]

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1. Inserted by Act 20 of 19 87, section 34 (w.e.f. 1-12-1987 ).

Section 97 - Offences by workers

( 1 ) Subject to the provisions of section 111 , if any worker employed in a factory contravenes any provision of this Act or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine which may extend to¹[five hundred rupees].

( 2 ) Where a worker is convicted of an offence punishable under sub-section ( 1 ) the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention.

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1. Substituted by Act 20 of 1987, section 3 5, for " twenty rupees" ( w.e.f. 1-12-1987).

Section 98 - Penalty for using false certificate of fitness

Whoever knowingly uses or attempts to use, as a certificate of fitness granted to hi mself under section 70 , a certificate granted to another person under that section, or who, having procured such a certificate, knowingly allows it to be used, or an attempt to use it to be made, by another person, shall be punishable with imprisonment for a term which may extend to¹[two months] or with fine which may extend to²[one thousand rupees] or with both.

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1. Substituted by Act 20 of 1987, section 36, for "one month" (w.e.f. 1-12-1987 ).

2. Substituted by Act 20 of 1987, section 36, for "fifty rupees" (w.e.f. 1-12-1987 ).

Section 99 - Penalty for permitting double employment of child

If a child works in a factory on any day on which he has already been working in another factory, the parent or guardian of the child or the person having custody of or control over hi m or obtaining any direct benefit from hi s wages, shall be punishable with fine which may extend to¹[one thousand rupees], unless it appears to the Court that the child so worked without the consent or connivance of such parent, guardian or person.

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1. Substituted by Act 20 of 1987, section 37, for "fifty rupees" (w.e.f. 1-12-1987 ).

Section 100 - Detention of occupier in certain cases [Repeald]

Rep. by the Factories (Amendment) Act, 1987 (20 of 1987). Section 38 (w.e.f. 1-12-1987).

Section 101 - Exemption of occupier or manager from liability in certain cases

Where the occupier or manager of a factory is charged with an offence punishable under this Act, he shall be untitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear days' notice in writing of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier or manager of the factory, as the case may be, proves to the satisfaction of the Court--

(a) that he has used due diligence to enforce the execution of this Act, and

(b) that the said other person committed the offence in question without his knowledge, consent or connivance,

that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory, and the occupier or manager, as the case may be, shall be discharged from any liability under this Act in respect of such offence:

Provided that in seeking to prove as aforesaid, the occupier or manager of the factory, as the case may be, may be examined on oath, and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor:

Provided further that, if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing the charge, the Court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the Court, the Court shall proceed to hear the charge against the occupier or manager and shall, if the offence be proved, convict the occupier or manager.

Section 102 - Power of Court to make orders

(1) Where the occupier or manager of a factory is convicted of an offence punishable under this Act the Court may, in addition to awarding any punishment, by order in writing require him, within a period specified in the order (which the court may, if it thinks fit and on application in such behalf, from time to time extend) to take such measures as may be so specified for remedying the matters in respect of which the offence was committed.

(2) Where an order is made under sub-section (1) the occupier or manager of the factory, as the case may be, shall not be liable under this Act in respect of the continuation of the offence during the period or extended period, if any, allowed by the Court, but if, on the expiry of such period or extended period, as the case may be, the order or the Court has not been fully complied with, the occupier or manager, as the case may be, shall be deemed to have committed a further offence, and may be sentenced therefore by the Court to undergo imprisonment for a term which may extend to six months or to pay a fine which may extend to one hundred rupees for every day after such expiry on which the order has not been complied with, or both to undergo such imprisonment and to pay such fine, as aforesaid.

Section 103 - Presumption as to employment

If a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved, be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory.

Section 104 - Onus as to age

(1) When any act or omission would, if a person wear under a certain age, be an offence punishable under this Act, and such person is in the opinion of the Court prima facie under such age, the burden shall be on the accused to prove that such person is no under such age.

(2) A declaration in writing by a certifying surgeon relating to a worker that he has personally examined him and believes him to be under the age stated is such declaration shall, for the purposes of this Act and the rules made thereunder, be admissible as evidence of the age of that worker.

Section 104A - Onus of proving limits of what is practicable, etc

¹ [104A. Onus of proving limits of what is practicable, etc

In any proceeding for an offence for the contravention of any provision of this Act or rules made thereunder consisting of a failure to comply with a duty or requirement to do something, it shall be for the person who is alleged to have failed to comply with such duty or requirement, to prove that it was not reasonably practicable or, as the case may be, all practicable measures were taken to satisfy the duty or requirement.]

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1. Inserted by Act 20 of 1987, section 39 (w.e.f. 1-12-1987).

Section 105 - Cognizance of offences

( 1 ) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an Inspector.

( 2 ) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try any offence punishable under this Act.

STATE AMENDMENT

¹Himachal Pradesh :

In Section 105, in sub-section (2), omit the words " of a Presidency Magistrate or".

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1.Vide Himachal Pradesh A.L.O. 1948 (w.e.f. 25-12-1948).

Section 106 - Limitation of prosecutions

No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the da t e on which the alleged commission of the offence came to the knowledge of an Inspector:

Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.

¹[Explanation.--For the purposes of this section,--

(a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues ;

(b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the t ime so granted or extended expired.]

STATE AMENDMENT

²Uttar Pradesh :

After section 106, insert the following section.--

"106A. Compounding in offences.--The Inspector may, subject to any general or special order of the State Government in this behalf, compound any offences punishable under this Act with fine only, and committed for the first time, either before or after the institution of the prosecution, on realisation of such amount of composition fee as he thinks fit not exceeding the maximum amount of fine fixed for the offence; and where the offence is so compounded,--

(i) before the institution of the prosecution, the offender shall not be liable to prosecution, for such offence and shall, if in custody, be set at liberty;

(ii) after the institution of the prosecution the composition shall amount to acquittal of the offender."

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1. Inserted by Act 94 of 1976, section 43 (w.e.f. 26-10-1976).

2. Vide Uttar Pradesh Act, 35 of 1979, section 4 (w.e.f. 21-12-1979).

Section 106A - Jurisdiction of a court for entertaining proceedings, etc., for offence

¹ [106A. Jurisdiction of a court for entertaining proceedings, etc., for offence

For the purposes of conferring jurisdiction on any court in relation to an offence under this Act or the rules made thereunder in connection with the operation of any plant, the place where the plant is for the time being situate shall be deemed to be the place where such offence has been committed.]

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1. Inserted by Act 20 of 1987, section 40 (w.e.f. 1-12-1987).