Judgment:
Mahendra Bhushan Sharma, J.
1. Proposition of law convassed by Mr. Bapna, learned Counsel for the accused-petitioner in this case is that in view of the words 'save as is otherwise expressly provided in this Act' in Section 92 of the Factories Act, 1948 (for short the 'Act') the occupier of the factory cannot be convicted for contravention of the offence under Section 88 of the Act.
2. The facts relevant for the disposal of the above proposition of law canvassed by Mr. Bapna are these.
3. On 7th June, 1984 one Shri Rajendra Nayer, worker was working in the Factory M/s Mohan Enterprises Rajasthan (P) Ltd., Jaipur. While he was working the ceiling fan in the packing room fell down causing injury to Shri Rajendra Nayar and he received three stitches. The said worker was present for working for the period of 8 hours or more immediately following the accident. The Manager of the factory at the relevant time was one J.K. Nandwana. The said Manager under Section 88 of the Act was required to send notice of the accident to such authorities and in such form as may be prescribed. No such notice was sent under Sub-section (1) of Section 88 or under the rules framed therein. A complaint was filed by the Inspector Factories and Boilers Zone-I, Jaipur against the above named accused Sah Sanieev Kumar, one of the Directors of M/s Mohan Enterprises Rajasthan (P) Ltd.
4. An objection was raised on behalf of the above named Director before the learned Magistrate that the cognizance of an offence under Section 92 of the Act could not be taken against him. The learned Magistrate under his order dated November 15, 1985 dismissed the application.
5. The contention of Mr. Bapna, learned Counsel for the accused petitioner is that under Section 88 of the Act where in any factory an accident occurs which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of forty-eight hours or more immediately following the accident, or which is of such nature as may be prescribed in this behalf, the manager of the factory shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed. No duty is cast on the occupier of the factory and, therefore, he cannot be prosecuted for contravention of Section 88 of the Act under Section 92 of the Act. According to the learned Counsel for the petitioner Section 92 of the Act, corresponds to Section 60 of the Act of 1934. The Section provides 'Save as it otherwise expressly provided in this Act and subject to the provisions of Section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rule made there under or of any order in writing given there under, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both, and if the contravention is continued after conviction with a further fine which may extend to seventy-five rupees for each day on which the contravention is so continued.' The rulings under that Section have no relevance. Section 92 of the Act provides General Penalty for offence if in or in respect of any factory there is any contravention of any of the provisions of the Act or of any rule made there under or of any order in writing given there under. Both the occupier and manager of the factory each is liable to be punished with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to seventy five rupees for each day on which the contravention is so continued. Even if under section 88 of the Act it is the duty of the Manager of the factory to send notice thereof to such authorities, and in such form and within such time, as may be prescribed, where in any factory an accident occurs which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of forty-eight hours or more immediately following the accident, both the manager and the occupier are liable for punishment in contravention of Section 88 of the Act, 1934. Such a view was taken in Amir Chand and Ors. v. Emperor AIR 1930 Lahore 658). Section 34 of the Factories Act is analogous to Section 88 of the Act and it was held that the duty to inform the authority under the Factories Act under Section 34 is Laid on the Manager. It was further held that both the occupier and Manager are made responsible jointly and severally for this contravention under Section 41 of the Act, though it was a Manager who has contravened Section 34 of the Act. In case of J. Agrawal v. Emperor AIR 1932 PC 188) a similar view was taken and it was further held that joint trial of manager and occupier for failure to report accident is not bad in law. After coming into the force of the Act the matter was again examined as to whether for contravention of Section 88 of the Act, the Manager and occupier of the factory can also be convicted. In the case of the State of U.P. v. K.K. Modi (MR 1968 Allahabad 197) in Para 9, it was held that 'the Occupier' cannot escape liability by showing that he had left everything to be done by the Manager of the factory. Section 92 of the Act makes both the occupier and the Manager of a factory punishable with imprisonment for a term, which may extend to three months or with fine, which may extend to five hundred rupees, or with both for any contravention of the provisions of the Act or any rule made thereunder. In the case of Ramlal Chimanlal and Anr. v. State of Gujarat Sachivalaya. Ahmedabad and Anr. AIR 1967 Guj. 148) Hon'ble Bhagwati, J. as his Lordship then was referring to Section 92 of the Act held that the effect of the Section clearly is that in respect of every contravention of any of the provisions of the Act or the rules the occupier and manager of the factory are guilty of an offence and are punishable with imprisonment or fine or both. It was further observed that the object of making the occupier and the manager criminally liable is clearly to secure proper and effective enforcement of the provisions of the Act and the Rules. No fault can, therefore be found with the provision enacted in Section 92 in so far as it makes the occupier and Manager of the factory guilty of an offence for contravention of the provision of the Act and the rules.
6. In my opinion the words 'Save as is otherwise expressly provided in this Act' in Section 92 of the Act Act do not make any difference to the law Laid down earlier. Under Section 92 of the Act even the occupier shall be guilty of an offence under the Act. Thus for offence of contravention of Section 88 of the Act, both the manager and occupier are fable to be prosecuted and cognizance can be taken against them. There is no dispute that so far as the petitioner is concerned, he is the controller of the factory and he has been so disclosed in Form No. 2.
7. Consequently, there is no force in this petition and is hereby dismissed.