The term “factory” is defined as any premises including the precincts thereof— (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,— but does not include a mine subject to the operation of [the Mines Act, 1952 (35 of 1952)], or [a mobile unit belonging to the armed forces of the Union, railway running shed or a hotel), restaurant or eating place].[i]
The term “occupier” of a factory means the person who has ultimate control over the affairs of the factory[ii]. In the case of a company, any one of the directors shall be deemed to be the occupier.
In the event of any injury/death in the premises of a factory, whether the injured is an employee/consultant or visitor, the occupier shall be responsible and liable to comply with the provisions of applicable laws and immediately report such accidents to various authorities as stipulated under TFA (defined below), namely without limitation, the Inspector of Factories and jurisdictional Inspector of Police.
In case of accidents resulting in death on the factory floor, prosecution under The Factories Act, 1948 (“TFA”) becomes inevitable and the Occupier is prosecuted under Section 92 of TFA.
In furtherance to the above, section 304-A of the Indian Penal Code, 1961 (“IPC”) is attracted when there is a death caused to due to negligence. Therefore, upon the death of a worker, the local police station will register an FIR and will also file a Charge Sheet u/s 304-A of the IPC.
Hence, invariably, the Occupier will be exposed to both civil and criminal tortious liabilities and will have to face to two prosecutions – one filed by the Police under Sec., 304-A of IPC and other one filed by the Factory Inspector under Sec.92 of the Factories Act. In both cases, the primary charge is generally “Negligence causing death”.
Apart from the provisions of TFA, the Occupier of the factory would also be liable under the provisions of Public Insurance Liability Act, 1991, provided that the premises have hazardous substances[iii].
During the last few decades, the question, of whether the Occupier be subjected to conviction in both cases for the same offence, has been debated and argued before many courts in India including the Hon’ble Supreme Court of India.
Section 300 of the Criminal Procedure Code, Section 26 of the General Clauses Act and Section 71 of the Indian Penal Code clearly provides for protection and principles of “A person must not be put in peril twice for the same offence that is to say ‘No one ought to be punished twice for one offence.
The Hon’ble Supreme Court in the case of Premier Automobile’s case in the year 1975, the Honourable Jharkhand High Court in Ashwin Kumar Singh Vs. State of Jharkhand[iv], Madhya Pradesh High Court- Neeraj Verma vs The State Of Madhya Pradesh on 30 September, 2015, High Court of Chhatisgarh in case of “Firoz Alam Vs. State of Chhattisgarh”[v], Karnataka High Court in the case of K.S.Harish Vs Prakryuthi Agri Cocopeat Industries in the year 2015, have held the view that when a prosecution under Sec.92 of Factories Act is initiated, the criminal case filed under Sec.304 A shall stand quashed.
[i] Sec. 2 (m) of the Factories Act, 1948
[ii] Sec. 2 (n) of the Factories Act, 1948
[iii] As defined under the applicable environmental laws.
[iv] 2007 LLR 866
[v] Criminal Miscellaneous Petition No.36/2009 delivered on 28.02.2009
Author: Abhishek Gupta, Senior Associate
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