Anup Kumar Gupta vs The State of Bihar (now Jharkhand) and Another

Prashant Kumar, J.—This application has been filed for quashing order dated 3.12.1999 passed by learned Chief Judicial Magistrate,

Dhanbad in F.A. Case No. 657 of 1999, whereby he took cognizance u/s 92 of Factories Act against petitioner. It appears that Factory

Inspector, Dhanbad made inspection of M/s. B.C.C.L. Press, Koyla Nagar, Dhanbad and thereafter filed complaint alleging therein that stability

certificate in respect of building of Factory in form 34 has not been sent by occupier or manager of Factory to Chief Factory Inspector which is

violative of provisions of Rule 3-A of Bihar Factories Rules, 1950.

It appears that said complaint received in the Court of learned Chief Judicial Magistrate, on 3.12.1999 and on the same day he took cognizance

of the offence u/s 92 of the Factories Act.

It is submitted by Sri A.K. Mehta, learned counsel for the petitioner that petitioner being a director of the company cannot be prosecuted u/s 92

of the Factories Act because he is not occupier within the meaning of Section 2(n) of the Factories Act. It is submitted that the person who

manages the affairs of factory is occupier, therefore he can only be prosecuted u/s 92 of the Factories Act. It is submitted that petitioner had not

been appointed by Central Government as occupier of the factory, therefore order taking cognizance is bad. It is further submitted that order

taking cognizance is also violative of Section 106 of the Factories Act.

On the other hand, Sri S.S. Prasad, learned Additional PP submits that petitioner has been appointed by Central Government as occupier which

manifest from Annexure-A to the counter-affidavit. Sri Prasad further submits that petitioner put his signature on Annexure-B as occupier of

factory. Under the said circumstance, as per Section 92 of the Factories Act, petitioner can be prosecuted for violation of any of the provisions of

the Factories Act and Rules framed thereunder.

Having heard the submissions, I have gone through the record. Rule 3-A of the Bihar Factories Rules, 1950 is as follows:--

3-A. Certificate of Stability.-- No manufacturing process shall be carried on in any building of a factory constructed, reconstructed or extended, or

in any building which has been taken into use as a factory or part of a factory until a certificate of stability in respect of the building in Form No. 34

has been sent by the occupier of manager or the factory to the Chief Inspector, and accepted by him.

From perusal of complaint petition, I find that at the time of inspection of the factory premises It was found that stability certificate in respect of

building of factory in form 34 has not been sent by occupier or manager of factory to Chief Factory Inspector which is violative of Rule 3-A of

Bihar Factories Rules, 1950. Section 92 of the Factories Act provides that if there is contravention of any provisions of Factories Act, or any rules

made thereunder, then occupier and manager of the Factory shall be held guilty of the offence. Thus as per Section 92 of the Factories Act,

occupier and manager of factory can be prosecuted for violation of the provisions of Factories Act or Rules.

The contention of learned counsel for the petitioner that at the relevant time petitioner was not managing the affairs of the factory as its occupier,

cannot be accepted, because as per proviso 3 of Section 2(n) of Factories Act If the factory is owned or controlled by Central Government then

the person appointed by Central Government to manage the affairs of the factory shall be deemed to be the occupier. In the instant case, a

counter-affidavit filed by opposite party no. 2. Annexure-A to the said counter-affidavit reveals that petitioner was appointed as occupier of M/s.

B.C.C.L. Press, Koyla Nagar, Dhanbad. It further appears that petitioner put his signature on Annexure-B as occupier of M/s. B.C.C.L. Press,

Koyla Nagar, Dhanbad (factory in question). From Annexure-B it is clear that petitioner is occupier of factory. Under the aforesaid circumstance,

I find that contention of learned counsel for the petitioner has no leg to stand.

Now coming to the next contention that order taking cognizance is barred by law of limitation, it is worth mentioning that factory in question

inspected on 27.8.1999. Thereafter petitioner was directed to remove irregularities vide letter no. 543 dated 4.9.1999 and when said direction not

complied, present complaint filed on 3.12.1999. Proviso to Section 106 of Factories Act provides that if the offence consists of disobeying of

written order made by an inspector, the complaint petition can be filed within six months from the date on which the offence Is alleged to have been

committed. As noticed above, in the instant case, Factory Inspector gave direction to the petitioner to remove irregularities within a certain period,

but said direction has not been complied therefore in this case com plaint can be filed within six months from the date on which said offence came

in the knowledge of Inspector. Under the aforesaid circumstance, there is no delay in filing of complaint petition. Accordingly, second contention

raised by Sri A.K. Mehta is also rejected. In view of the discussions made above, I find no merit in this application. Accordingly, same is

dismissed.