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PETITIONER: CHINUBHAI HARIDAS

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 04/09/1959

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. IMAM, SYED JAFFER

CITATION:  1960 AIR   37            1960 SCR  (1) 654

ACT:        Factories--Precautions   against  dangerous  fumes-Duty   of        occupier-Liability  for accident-" Be Permitted to enter  ",        meaning  of-Indian Factories Act, 1948 (LXVIII Of 1948),  S.        36(3) and (4).

HEADNOTE: The appellant was the occupier of a factory where there  was a  pit in which dangerous fumes were likely to  be  present. The  pit  was securely covered and enclosed and no  one  was expected to go down into it for normal work as it was worked by  gadgets fixed nearby above the ground.   Something  went wrong  with  the machinery inside the pit and  five  workers went  down without wearing suitable breathing apparatus  and without, wearing a belt securely attached to a rope the free end of which could be held by some person standing  outside. All  the workers were overcome by poisonous gases and  died. It  was  found that suitable breathing  apparatus,  reviving apparatus,  belts and ropes were not available  anywhere  in the  factory and were not kept for ready use near  the  pit. The  appellant was prosecuted as the occupier for breach  of the  provisions Of s. 36(3) and (4) of the Indian  Factories Act,  1948.  The trial Court held that no offence  under  S. 36(3)  had  been  made out and it was not  proved  that  any permission,  express  or  implied, had  been  given  to  the workmen  to  enter the pit, and I that no offence  under  S. 36(4)  had been made out because no permission  having  been given it was ’not necessary to keep the breathing  apparatus etc.,  near  the  pit or anywhere else in  the  factory  and consequently  it acquitted the appellant.  On appeal by  the State, the High Court set aside the (1)  [1952] S.C.R. $67. 655 acquittal  and directed the trial Court to decide  the  case against the appellant in the light of the interpretation  of the  law made by the High Court.  The High Court was of  the view  that  as c, the appellant had failed  to  prevent  the entry  of  the  workers  he must in  law  be  held  to  have permitted  the entry and committed breach Of s. 36(3) ;  and that  it  was  not sufficient compliance with  s.  36(4)  to provide breathing apparatus etc., only after coming to  know that  some person was about to enter the pit but  that  such

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apparatus  must be immediately available at the pit  at  all times. Held,  that  s. 36(3) did not cast an absolute duty  on  the occupier to prevent the entry into the pit and the mere fact that  a person had entered the pit did not by  itself  prove that he had been "permitted to enter " within the meaning of that,  subsection.   The  primary duty  was  on  the  worker prohibiting him from entering the pit.  At the same time the occupier  was  also liable if his permission to  the  entry, whether express or implied, could be inferred from the facts and circumstances of the case. Held,  further, that s. 36(4) cast an absolute duty  on  the occupier  to  see  that the breathing  apparatus  etc.,  was always   available  in  the-factory  and  was   periodically examined  and certified fit for use and a sufficient  number of persons were trained in its use.  But there was no  -duty to  keep the apparatus at the pit at all times; such a  duty arose  when some person was about to enter the pit with  the permission of the occupier.

JUDGMENT:        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193  of        1957.        Appeal  by special leave from the judgment and  order  dated        August 1, 1957, of the Bombay High Court in Criminal  Appeal        No. 365 of 1957, arising out of the judgment and order dated        the  November  28,  1956,  of  Joint  Civil  Judge,   Junior        Division,  and Judicial Magistrate First Class,  Broach,  in        Summary Case No. 57 of 1956.        Rajni Patel and M. S. K. Sastri, for the appellant.        H.   J.  Umriyar,  T.  M.  Sen and R.  H.  Dhebar,  for  the        respondent.        1959.  September 4. The Judgment of the Court was  delivered        by        WANCHOO J.-This appeal by special leave against the judgment        of  the  Bombay  High  Court  raises  the  question  of  the        interpretation  of  sub-ss.  (3) and (4) of  s.  36  of  the        Facts  Act, (LXIII of 1948), (hereinafter called  the  Act).        The brief facts necessary for the        656        purpose  are  these.  The appellant is the occupier  of  the        Gopal Mills Co. Ltd., Broach, which is a factory as  defined        in  the Act.  It appears that there is a pit in the  factory        in which dangerous fumes are likely to be present.  This pit        was securely covered as required by s. 33(1) of the Act  and        no  one was expected to go down into the pit for the  normal        work  of the factory as the pit was worked by gadgets  fixed        nearby   above  the  ground.   It  appears,  however,   that        something  went wrong with the machinery inside the  pit  on        July  4, 1955.  Fakirji Dhanjishaw was the person  in-charge        of  those  who were working in the purification  plant  with        which this pit is connected when the accident took place  at        about,  9-30  a.  m. on July 4, 1955.  It  seems  that  when        something  went wrong with the machinery inside the  pit,  a        labourer  named Melia Dadla was asked to go down into it  to        attend  to  it  and he went down  without  wearing  suitable        breathing apparatus and a belt securely attached to a  rope,        the  free  end of which should have been held  by  a  person        standing  outside the confined space.  The result  was  that        Melia  Dadla was seen overcome by poisonous gases and  died.        Thereafter Fakirji Dhanjishaw, Maganlal Gordhandas, Chunilal        Bochar  and  Chhotalal  Nathubbai went  down  into  the  pit        without  wearing  breathing apparatus and  were  overpowered

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      with  poisonous gases and died one after the other.   It  is        not  clear  when  the superior officers  in  the  mill  were        informed  of  this tragedy.  But it appears that  after  the        death  of these five persons the  Superintendent,  Municipal        Fire  Brigade,  was sent for with  breathing  apparatus  and        other  appliances and he went down into the pit to save  the        dying  persons;  but be was also attacked by the  fumes  and        became unconscious.  The mill doctor and some other  doctors        also  came  but  nothing could be done to  revive  the  five        persons  who  were  dead.  The matter was  reported  to  the        Inspector  of Factories and he went and made enquiries.   It        was  then found that suitable breathing apparatus,  reviving        apparatus,  belts and ropes were not available  anywhere  in        the  factory and were not kept ready for instant use  beside        the confined space.  Consequently,        657        the appellant was prosecuted as the occupier for the  breach        of s. 36 (3) and (4) of the Act.        The appellant took advantage of s. 101 of the Act and  filed        a  complaint  against the manager S. D.  Vashistha  and  the        engineer  H. P. Tripathi.  In view of this complaint of  the        appellant,  the  first question that the magistrate  had  to        decide  was whether the commission of the offence  had  been        proved.   If the commission of the offence was  proved,  the        magistrate  would  have to consider  whether  the  appellant        could  be  discharged  from liability if he  proved  to  the        magistrate’s satisfaction that he had used due diligence  to        enforce the Act and that the other two persons committed the        offence  in  question  without  his  knowledge,  consent  or        connivance.        In  considering  the question whether an  offence  had  been        committed,  the magistrate had to interpret sub ss. (3)  and        (4) of s. 36 of the Act.  He was of the view that no offence        under  s.  36 (3) had been made out as the  prosecution  had        failed  to  prove  any permission, express  or  implied,  to        Fakirji  Dhanjishaw  and others to enter the  pit.   He  was        further of the view that no offence under s. 36 (4) had been        committed because no permission under sub-s. (3) having been        granted to anybody to enter the pit, it was not necessary to        keep the breathing apparatus etc., near the pit or  anywhere        else  in the factory.  He, therefore, held that  no  offence        had  been committed and acquitted the appellant as  well  as        the manager and the engineer.        There was an appeal by the State of Bombay to the High Court        against  the  acquittal, of the appellant alone.   The  High        Court  disagreed with the interpretation of sub-ss. (3)  and        (4) of s. 36 by the magistrate and held that-        "  For attracting the application of sub-section (3)  it  is        not  necessary that a positive act of  obtaining  permission        must  be  done  by a worker or a positive  act  of  granting        permission must be done by the occupier or manager.  If  the        occupier or manager acquiesces in the entry, he permits  the        entry.   If he connives at the entry, then also  he  permits        the  entry.  If he fails to prevent the entry, then also  he        permits the entry."        658        It went on to say--          The scheme of the Act, which is a welfare legislation,  is        to  require an employer to take precautionary  measures  for        safeguarding the lives of his workers, prudent or imprudent,        rash or careful, against all possible danger while they  are        working on the premises of the factory."        It  therefore held that as the appellant had not  taken  all        reasonable  steps to prevent the workers from  entering  the        pit  in case of the machinery getting out of order,  he  had

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      failed to prevent the entry of the workers into the pit  and        therefore  must be held in law to have permitted  the  entry        and  committed  the breach of sub. s. (3) of s. 36.   As  to        sub-s.  (4) the High Court was of the view that it  was  not        sufficient compliance with it to provide breathing apparatus        etc. only after coming to know that some person was about to        enter the confined space and that the apparatus must be kept        ready for instant use and must be immediately available near        the  confined space not only to the person who  might  enter        the  confined space with permission but even to  the  person        who might enter the confined space without permission.   The        High  Court,  therefore,  set aside  the  acquittal  of  the        appellant  and  directed  that  the  appellant’s   complaint        against  Vashistha and Tripathi should be first  decided  by        the   magistrate,  (thus,  in  effect,  setting  aside   the        acquittal  of  Vashistha and Tripathi)  and  thereafter  the        magistrate  should  proceed to decide the case  against  the        appellant in the light of the law laid down.  There was then        an application for a certificate to enable the appellant  to        appeal to this Court which was rejected.  The appellant then        applied to this Court for special leave to appeal which  was        granted; and that is how the matter has come up before us.        The relevant part of s. 36 is in these terms:-        "  (3) No person in any factory shall enter or be  permitted        to  enter any confined space such as is referred to in  sub-        section  (1) until all practicable measures have been  taken        to remove any fumes which may be present and to prevent  any        ingress of fumes and unless either-        659        (a)  a certificate in writing has been given by a  competent        person,  based  on a test carried out by himself,  that  the        space  is free from dangerous fumes’ and fit for persons  to        enter, or        (b)  the worker is wearing suitable breathing apparatus  and        a belt securely attached to a rope, the free end of which is        held by a person standing outside the confined space.        (4)  Suitable  breathing apparatus, reviving  apparatus  and        belts  and  ropes shall in every factory be kept  ready  for        instant  use-beside  any such confined  space  as  aforesaid        which  any person has entered, and all such apparatus  shall        be periodically examined and certified by a competent person        to  be  fit  for use; and a  sufficient  number  of  persons        employed in every factory shall be trained and practised  in        the use of all such apparatus and in the method of restoring        respiration.        Taking  sub-s.  (3)  first,  the  question  that  falls  for        consideration is the meaning of the words " be permitted  to        enter  ". The contention on behalf of the State  before  the        High Court was that these words cast an absolute duty on the        occupier to prevent the entry of any person in a pit etc. of        the kind mentioned in sub-s. (1) of s. 36 and this seems  to        have  been accepted by the High Court.  Learned counsel  for        the  appellant, however, urges that in the context  of  this        provision, the duty cast on the occupier is not absolute and        there  must be some kind of permission, whether  express  or        implied,  to  the person entering the pit  etc.  before  the        occupier  is made liable.  In other words, it  is  submitted        that it will be for the court on the facts and circumstances        of each case to infer whether there was permission,  express        or implied, of the occupier to the person who enters the pit        etc.   Mr. Umrigar appearing for the State of  Bombay  urges        before  us  that  this latter construction  would  make  the        provision  liable to evasion by the occupier.  According  to        him, this provision means that whenever anyone enters such a        pit etc. the burden is cast on the employer to show that the

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      entry was against the occupier’s instructions.  He even went        to the length of saying that if a worker        660        entered  the pit in order to commit suicide, it would  still        be  for the occupier to show that the entry was against  his        instructions  and that he did all that he could  to  prevent        it.   In  this connection he drew our attention  to  certain        other sections in the Act where similar words are used,  for        example,  ss. 51, 52, 54, 60, 64, 67, 68, and 71. We do  not        think  it  necessary  to consider these  other  sections  in        detail.   It is enough to point out that there is one  vital        difference  between the provisions of these  other  sections        and  the  provision contained in s.  36(3).   Section  36(3)        prohibits the worker from entering the pit etc. while  these        other  sections have no such prohibition against the  worker        and  cast  the entire duty on the employer.   Section  36(3)        therefore  will have to be construed in the context  of  the        words  used therein.  It begins with prohibiting any  person        from  entering  any such pit etc.  The  primary  prohibition        therefore  is  of  the person working in’  the  factory  and        others  and the effect of this prohibition is worked out  in        s. 97 of the Act.  Sub-section (1) of s. 97 provides that if        a worker employed in a factory contravenes any provision  of        this Act imposing any duty or liability on workers, he shall        be  punishable with fine.  Sub-section (2) of  this  section        then  lays down that if a worker is convicted of an  offence        under  sub-s.  (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 fails to take        all  reasonable  measures for its  prevention.   Reading  s.        36(a)  with s. 97, it is clear that the prohibition  of  the        worker against entering any such pit etc. is absolute and if        any  worker  enters such a pit etc. he is  guilty  under  s.        97(1).  In this case, if the five workers who are dead, were        alive,  they  would  have been guilty  under  s.  97(1)  for        contravening s. 36 (3) by entering the pit.  Then s. 97  (2)        would   come  into  operation  and  it  would  be  for   the        prosecution  to prove that the occupier or the  manager  had        failed  to take all reasonable measures for  preventing  the        entry.  The burden thus is on the prosecution to prove  that        the  occupier  or the manager had not taken  all  reasonable        steps  for preventing the entry and not on the  occupier  or        the manager to prove that he        661        had  taken  all  such  reasonable  steps.   The  Court  will        therefore  have to consider all the facts and  circumstances        in  a  particular  case  to see  if  the  burden  has,  been        discharged  by  the prosecution.  It is in  this  background        that  we  have to consider the meaning to be  given  to  the        words " be permitted to enter " appearing in s. 36 (3).   It        seems  to  us that in the circumstances these words  do  not        cast  an absolute duty on the employer to prevent the  entry        and the mere fact that a person has entered such a pit etc.,        would  not  by itself prove that he bad  been  permitted  to        enter.   The  Court  will have to look into  the  facts  and        circumstances of the case to come to the conclusion  whether        the  person who entered the pit was permitted to do  so  and        mere entry would not necessarily lead to the conclusion that        there  was permission to enter, whether express or  implied.        The  magistrate  in this case seems to have thought  that  a        positive  act  of obtaining permission must be done  by  the        worker or a positive act of granting permission must be done        by the occupier or the manager, though he has not said so in        so  many words.  It is not necessary that there should be  a        positive  act  of obtaining permission by the  worker  or  a

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      positive  act of granting permission by the occupier or  the        manager.  What the court has to see is whether on the  facts        and circumstances of a particular case it will be reasonable        to infer that the entry was with permission, whether express        or  implied.   The High Court also, with respect,  seems  to        have gone too far on the other side when it said that it was        the  duty  of  the employer to take  all  the  precautionary        measures for safeguarding the lives of his workers,  prudent        or imprudentrash or careful, against all possible  danger        whilethey  are working on the premises of the  factory.        Thiswould imply that there was an absolute duty cast on the        employer   to   prevent  the  entry  irrespective   of   the        considerations   that   might  arise  on   the   facts   and        circumstances of a particular case.  The true view of s.  36        (3), in our opinion, is that the primary duty is cast on the        worker  or any other person prohibiting his entry  into  any        such pit etc.  At the same time the occupier is also  liable        if his permission         84        662        to the entry, whether express or implied, can be inferred on        the  facts  and  circumstances  of the  case;  IS  but  this        permission cannot in all cases be inferred by the mere  fact        of  the entry.  The High Court has remanded the case to  the        magistrate  for retrial and in that retrial  the  magistrate        will  proceed to consider the liability of the  occupier  in        the light of the observations made by us on the construction        of s. 36 (3).        Turning now to sub-section (4), it will be found that it  is        in  two  parts.   The  first  part  provides  that  suitable        breathing  apparatus,  reviving apparatus, belts  and  ropes        shall in every factory be kept ready for instant use  beside        any  such confined space as aforesaid which any  person  has        entered.   This to our mind means that if for any  reason  a        person has to enter such confined space, the apparatus etc.,        shall be kept ready for instant use beside such space.   The        duty for keeping the apparatus ready beside the space arises        only when a person is entering the confined space, obviously        with  the permission of the occupier or the manager.  We  do        not  think that sub-s. (4) contemplates that  the  apparatus        etc.,  shall  always be kept ready near the  confined  space        whether there is any occasion for any person to enter it  or        not.   The  necessity of keeping the apparatus  etc:  ready,        near  the confined space arises when any person is about  to        enter  such  space,  obviously with the  permission  of  the        employer.        The  second  part  of the section  provides  that  all  such        apparatus shall be periodically examined and certified by  a        competent  person to be fit for use and a sufficient  number        of  persons employed in every factory shall be  trained  and        practised in the use of all such apparatus and in the method        of  restoring  respiration.   This clearly  shows  that  the        apparatus  etc.,  must always be available in  the  factory,        though it need not be kept near the confined space till such        time  as  some one is about to enter it.  There will  be  no        possibility  of  periodical  examination  and  training   of        sufficient  number  of persons in the use of  the  apparatus        unless  the apparatus was always available in  the  factory.        The  duty  cast by sub-s. (4) is absolute.  So  far  as  the        first part is concerned, the duty of keeping the apparatus        663        ready for instant use near the confined space arises as soon        as  a  person  is  about to enter  it,  obviously  with  the        permission  of the occupier.  So far as the second  part  is        concerned,  it is the duty of the occupier to see  that  the

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      apparatus  is  always  available  in  the  factory  and   is        periodically  examined  and  certified fit for  -use  and  a        sufficient  number of persons are trained in its  use.   The        view  taken by the magistrate of the effect of this  section        is not correct and the view taken by the High Court is right        except  that it is not necessary to keep the  apparatus  all        the  time  near  the confined space.   The  High  Court  has        ordered retrial with respect to the contravention of  sub-s.        (4) also and the magistrate who now retries the case will do        so  in accordance with the construction of  the  sub-section        given  by  us.   We have  carefully  refrained  from  saying        anything on the facts of this case as there is going to be a        retrial  and it will be for the magistrate to  consider  all        the facts and circumstances before coming to a decision  one        way or the other.  The appeal is hereby dismissed.                                       Appeal dismissed.