Emperor vs Haji Hassim Ibrahim

John Beaumont, C.J.—This is an application in revision by the accused against his conviction u/s 60, Clause (a), Sub-clause (iii), of the Factories Act, read with Sections 22 and 23 of the Act and Rule 37 of the Factories Rules. The important question, which arises is whether Rule 37 of the Factories Rules is valid.

Rule 37 provides (inter alia) that every building of more than one storey shall be provided with at least two sets of stairs, and is a rule which is intended to provide facilities for escape in case of fire. The rule was expressed to be made under Sections 22, 23 and 32 of the Factories Act. Section 22 provides that "in every factory such precautions against fire shall be taken as may be prescribed," and "prescribed" means prescribed by rules. Section 23, Sub-section (I), provides that "every factory shall be provided with such means of escape in case of fire as can reasonably be required in the circumstances of each factory." Sub-section (2) provides that "if it appears to the Inspector that any factory is not so provided, he may serve on the manager of the factory an order in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before a specified date.

I will assume that the building of the accused is a factory, and it is admittedly of more than one storey. The Inspector visited the factory on three occasions, and he made notes in the Visiting Book pointing out that a second staircase and an additional door in the upper floors should be provided. But it is not suggested that his entries in the Visiting Book amounted to the service of an order on the manager of the factory u/s 23(2); nor did his actions come within Rule 6, Sub-rule (c), of the Factories Rules. But it is argued for the prosecution, and that view has been accepted by the learned Magistrate, that Rule 37 which, as I have said, deals with facilities for escape in case of fire, was properly made u/s 22. The question really reduces itself to what is meant in Section 22 by the expression "precautions against fire," I should say that, taking those words literally, they mean precautions against the occurrence or outbreak of fire, and the words would not in their literal interpretation cover precautions against the consequences of fire. I concede that such an expression as "precautions against fire" might, in certain contexts, be held to cover not only precautions against the occurrence of fire, but precautions against the consequences of fire. But the difficulty in giving the words that wider interpretation in this case is that the next section, Section 23, deals expressly with precautions against the consequences of fire by providing means of escape. Reading the two sections together, it seems to me clear that the intention of the Legislature was that in the case of precautions against the occurrence of fire the matter should be dealt with by rules which would govern all factories, but that, in dealing with precautions against the consequences of fire, it was recognized that all factories could not be dealt with in like manner, and Section 23 therefore contains a general provision that provision shall be made for such means of escape as can reasonably be required in the circumstances of each factory, and then leaves it to the Inspector to determine whether such precautions have been taken, and if he thinks that the necessary provisions have not been made, he is given power to serve on the manager a notice, breach of which will amount to an offence u/s 60(a)(ii). But, in my opinion, there is no power u/s 22 to make general rules covering the subject of means of escape against fire, which is dealt with by Section 23, and Section 23, as I have pointed out, is not to be enforced by means of rules. The scheme is that the Inspector shall deal with each case on its own merits. Nor, in my opinion, can Rule 37 be justified u/s 32 (g). Section 32 is the rule making section, and Sub-section (g) provides that rules may be made providing for any other matter which may be expedient in order to give effect to the provisions of this chapter. A rule dealing with escape in case of fire is not expedient in order to give effect to the provisions of the chapter; on the contrary, it would be inconsistent with the scheme embodied in Section 23. In my opinion, Rule 37 can only be justified if made under Sections 22 and 32, and it deals with a matter which does not fall under either of those sections, but does fall u/s 23, which does not enable rules to be made. "We think, therefore, that Rule 37 is ultra vires, and as the Inspector in this case relied on that rule, and, therefore, did not proceed u/s 23, Sub-section (2), the conviction was not justified, and must be set aside. Fine, if paid, to be refunded.

Wassoodew, J.—I agree.

Conviction set aside.