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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: JETHALAL CHELABHAI PATEL

DATE OF JUDGMENT: 06/12/1963

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. WANCHOO, K.N.

CITATION:  1964 AIR  779            1964 SCR  (5) 801

ACT: Factories Act, 1948 (63 of 1948), ss. 21(1)(iv)(c), 92, 101- Dangerous   Machine-Inquiry-Absence  of   fence-Removal   by somebody else, if good defence.

HEADNOTE: While  greasing the spur gear wheel of an oil mill,  one  of the  hands of a workman got caught and had to be  amputated. It  appeared that at the time of the accident the  cover  of the  spur gear wheel was not there.  The respondent, who  is the  manager of the mill was prosecuted under s. 92  of  the Factories Act for having failed to comply with s. 21(1) (iv) (c)  of the Act.  The workman said that the cover  had  been removed by the respondent for repairs, while the case of the respondent was that the workman had himself removed it.  The trial  Judge  was  unable to accept either  version  and  he acquitted the respondent observing that he could not be held liable  if  the cover was removed by  someone,  without  his consent  or knowledge.  On appeal, the High  Court  affirmed the acquittal. Held:     (i)  The mere fact that someone else  had  removed the  safeguard without the knowledge, consent or  connivance of  the  occupier or manager does not provide a  defence  to him.  When the statute says that it will be his duty to keep a guard in position while the machine is working and when it appears  that  he  has not done so, it will be  for  him  to establish that notwithstanding this he was not liable. (ii) Even where the occupier or manager could establish that somebody else had removed the fence, he has further to prove that he exercised due diligence to see that the fence, which under  the Act was his duty to see was kept in position  all along, had not been removed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193  of 1961. Appeal  by special leave from the judgment and  order  dated February  9  and  10, 1961, of the  Gujarat  High  Court  in Criminal Appeal No. 367 of 1960. D.R. Prem, K.L. Hathi and R.H. Dhebar. for the appellant.

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The  respondent  did  not appear. December  6, 1963.  The Judgment of the Court was  delivered by 1/SC1/64-51 802 SARKAR J.-This appeal raises a question under the  Factories Act, 1948.  It was unfortunate that there was no  appearance on  behalf  of  the respondent but  Mr.  Prem  appearing  in support  of  the appeal has placed the  matter  very  fairly before us with all the relevant reported decisions from  the point of view of both the appellant and the respondent.   We are much beholden to him for this assistance. The respondent is the Manager of an oil mill.  The mill  had a spur gear wheel.  A workman of the mill while greasing the spur  gear  wheel which was then in motion had  one  of  his hands  caught  in  it.  Eventually  that  hand  had  to   be amputated.  It appeared that the spur gear wheel bad a cover which had bolts for fixing it to the base but at the time of the accident the cover was not there, having apparently been removed  earlier.  There is no evidence to show when it  was last in position. The  respondent  was prosecuted under s. 92 of the  Act  for having failed to, comply with s. 21(1) (iv)  (c).        The relevant part of this section is as follows:               S.    21.  (1) In every factory the  following               namely,-                  ................................                  ......................................               (iv)  unless  they are in such position or  of               such  construction  as  to be  safe  to  every               person  employed in the factory as they  would               be   if   they  were  securely   fenced,   the               following, namely-                ................................               (c)   every   dangerous  part  of  any   other               machinery,               shall  be  securely fenced  by  safeguards  of               substantial  construction which shall be  kept               in position while the parts of machinery  they               are fencing are in motion or in use: Section 92 of the Act provides as follows:               803               S. 92.     Save  as  is  otherwise   expressly               provided in this Act if in, or in respect  of,               any factory there is any contravention of  any               of the provisions of this Act the occupier  or               manager  of the factory shall be guilty of  an               offence  and punishable with  imprisonment  or               with fine There is no dispute that a guard had been put over the  spur gear  wheel and it was a proper guard.  It is not  contended that  if  it had been there, then the  respondent  could  be said.  to have committed any offence, but it was not  there. The workman said that it had been removed by the  respondent for  repairs while the case of the respondent was  that  the workman had himself removed it.  The learned trial Judge was unable  to  accept  either  version  and  he  acquitted  the respondent observing that he could not be held liable if the cover  was  removed  by  someone  without  his  consent   or knowledge.    The learned Judges of the High Court when the matter came to them in appeal, referred to a very large number of cases, mostly of the English Courts under the English Factories Act and a few of our High Courts and from them they deduced  the two  following  principles:  (1) Though  the  obligation  to

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safeguard  is absolute under s. 21(1)(iv)(c) of  the  Indian Act, yet it is qualified by the test of foreseeability,  and (2) If the ’Safeguard provided by the employer or manager is rendered nugatory by an unreasonable or perverted act on the part  of the workman, there is no liability of the  employer or manager.  With great respect to the learned Judges of the High  Court  we are unable to appreciate  the  relevancy  of these  two principles to the decision of the case  in  hand. Nor  does it seem to us that the learned Judges of the  High Court rested their judgment on any of these principles.  We, therefore,   think  it  unnecessary  to  notice  the   cases mentioned  in the judgment of the High Court or discuss  the principles to be deduced from them. 804  As the High Court stated, there is no dispute that the spur gear wheel was a dangerous machine within the meaning of  s. 21(1)(iv)(c).    That  being  so,  clearly,  there  was   an obligation  to securely fence it and to see that  the  fence was "kept in position while the parts of machinery they  are fencing are in motion or in use".  Indeed the fact that  the respondent  had provided the guard over the machine puts  it beyond  doubt, as the High Court observed, that the  machine was dangerous within the meaning of the section.  It was not contended that the risk from the unguarded machine was not a foreseeable  risk.   No  question  of  the  risk  not  being foreseeable, therefore, arises in this case nor is this  put up by way of a defence.  The High Court proceeded on the assumption that it had  not been proved that the workman had himself removed the  guard. We  will  also proceed on that assumption.  The  High  Court held  that  in a criminal case an accused was not  bound  to offer any explanation and if he did and that explanation was not  established, that would not justify his conviction  for the   offence  with  which  he  was  charged.   This  is   a proposition  which  it  is unnecessary  to  dispute  in  the present  case.   The  High  Court  then  observed  that   s. 21(1)(iv)(c)  of  the Act contemplated a  default  and  that default had to be established by the prosecution.  It lastly said that there was nothing in the Act to indicate that  the legislature intended that an occupier or manager must always be  on  the  look out to bring to book  every  offender  who removed the safeguard furnished by him or that a failure  on his  part  to  do so must entail his  conviction.   It  also observed  that  the statute did not require that  where  the occupier or manager had carried out his obligation under the section by providing a proper safeguard, he would be  liable if  someone else, not known to him, removed it  without  his knowledge, consent or connivance.  It, therefore, held  that as  in the present case it could not be said that either  he or  the  workman  had removed the guard,  it  followed  that someone whom the occupier or the manager could not fix 805 upon  had  removed  it  and that  was  something  which  the occupier  or  manager could not reasonably  be  expected  to anticipate and he could not be made liable for such removal.    We  are  unable to accept this view of  the  matter.   No doubt  the default on the part of the person accused has  to be  established  by the prosecution before there  can  be  a conviction.   It  has to be observed that s.  21  (1)(iv)(c) requires not only that the dangerous part of a machine shall be   securely  fenced  by  safeguards  but  also  that   the safeguards "shall be kept in position while the parts of the machinery  they  are fencing are in motion or in  use".   We should  have  thought  that the  words  "shall  be  securely fenced"  suggest  that the fencing should always  be  there.

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The  statute  has  however put the matter  beyond  doubt  by expressly saying that the fencing shall be kept in  position while the machine is working.  That is the default that  has happened  here; the fencing was not there when  the  machine had  been  made to work.  This is an admitted  fact  and  no question of establishing it arises.   Does  the  mere  fact that someone else  had  removed  the safeguard  without the knowledge, consent of  connivance  of the occupier or manager always provide a defence to him?  We do not think so.  When the statute says that it will be  his duty  to  keep  the guard in position when  the  machine  is working and when it appears that he has not done so, it will be  for him to establish that notwithstanding this  tie  was not liable.  It is not necessary for us to say that in every case  where  it is proved that the manager or  occupier  had provided  the necessary fence or guard but at  a  particular moment it appeared that the fence or guard had been removed, he  must be held liable.  Suppose the fence for some  reason for  which  the  manager or  occupier  is  not  responsible, suddenly  breaks down and the machine remains  unfenced  for sometime  before  the owner or occupier found that  out  and replaced the fence.  It may be that in such a case he cannot be made liable.  A statute does 806 not,  of course, require an impossibility of a person.   But there  is  nothing  to  show that is  the  case  here.   The respondent  has given no evidence whatever to show  what  he had  done  to carry out his duty to see that the  guard  was kept in position when the machine was working.  The onus  to prove  that was on him because his defence depended  on  it. He  has  completely  failed to  discharge  that  onus.   We, therefore,  think that he is liable under s. 92 of  the  Act for having failed to carry out the terms of s. 21(1)(iv).   Section  101 of the Act was referred to as supporting  the contention that the liability of an occupier or manager  for failure to observe the terms of the Act was absolute and the only  defence available to him was that provided by it.   In our view, it is unnecessary to deal with that question.   It does  not  arise in the present case, for we find  that  the respondent had offered no defence whatever, whether under s. 101  or otherwise.  His only point was that he did not  know what  happened to the guard and that, in our opinion, is  no defence at all.   We  wish,  however, to refer to the  section  for  another purpose.   The  section  states that where  an  occupier  or manager  of a factory is charged with an offence  punishable under  this  Act,  he shall be entitled to  have  any  other person whom he charges as the actual offender brought before the Court and if he proves to the satisfaction of the  Court (a)  that he used due diligence to enforce the execution  of the  Act, and (b) that the said other person  committed  the offence  in  question  without  his  knowledge,  consent  or connivance, then that other person shall be convicted of the offence and the occupier or the manager shall be discharged. It  will appear, therefore, that even where the occupier  or manager  proves that somebody else has removed  the  fencing without  his  knowledge, consent or connivance,  that  alone would  not exempt him from liability but he has  further  to prove  that  he  had  used  due  diligence  to  enforce  the execution of the Act which can only mean, in a case like the present, that he exercised due diligence 807 to see that the fence which under the Act it was his duty to see was kept in position all along had not been removed.  It seems  to us clear that if it was his duty to  exercise  due

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diligence for the purpose in a case where he could establish that  somebody  else  had removed the  fence,  it  would  be equally  his duty to exercise that diligence where be  could not  prove  who  had removed it.  If it  were  not  so,  the intention of the Act to give protection to workmen would  be wholly defeated. For  these reasons we are unable to agree with the  view  of the High Court or the learned trial magistrate.  Accordingly we allow the appeal and set aside the judgment of the Courts below   and   convict  the  respondent  under  s.   92   for contravening the terms of S.  21(1)(iv)(c).   We  impose  on him a fine of Rs.200. In default he shall undergo one week’s simple imprisonment.                                  Appeal allowed.