A trigger for this topic is a news report from Gujarat that police arrested an employer in connection with a fatal accident in a chemical factory. In recent times a number of such instances and incidents have been reported in which the police and the factory inspector have been simultaneously launching prosecution against employers in respect of accidents in factories. The police are arresting employers by invoking their jurisdiction under the Indian Penal Code. The employers are confused and in fact worried over this dual action by the government agencies on the same incident. The main allegation against the employers by both Government agencies is negligence and non compliance of the provisions of the Factories Act 1948. Negligence in general denotes not taking proper care. Carelessness shows and indicates what we do not value. The negligent employer and his failure to comply with the provisions of the Factories Act are liable for the consequences as provided under the law. How far two government authorities i.e. the police and the inspector of factories are legal and justified in launching prosecution simultaneously? An attempt is made to discuss the obligations and liabilities of the employer and the workers as provided under the Factories Act 1948 and remedies and safeguards available to the employer to defend his case against prosecutions launched by the police and inspector of factories on the accident. whether prosecution by the police under Indian penal code, a general law and the inspector of factories under the provisions of the factories Act, a special law, in respect of occurrence of accident in the factory coexists and sustainable under the laws or not is an important question that needs to be discussed.
Obligations and liabilities under the Factories Act 1948.
The employer is primarily responsible to provide health safety and welfare, proper working hours, leave and other benefits to the workers employed in the factory. The Act aims at protecting workers employed in factory from unfair exploitation by the employer. The Factories Act 1948, no doubt predominantly imposes liability against the employer exploiting the workers with utter disregard to the safety, health and welfare. (Section 7A and 7B of the Factories Act) At the same time the Act also recognizes the role of workers in safety and provided for obligations to them. Apart from the employer, the Act further provides for penalties and punishment to the workers if the offences are committed by them (Section 111 and Section 97) The Government agencies the Police and the factories inspector somehow thrust liability on the employer irrespective of reasons and causes of the accident. Hardly there are any cases filed against anyone other than the employer or manager in any cases of accident. To understand the dual jurisdictional problem and issues involved in it in respect of fatal accidents in factories, certain cardinal legal principles need to be examined and understood with right perspective.
Special law prevails over general law
This general principle of law is very well established and confirmed by the Supreme Court in a number of judgments. In criminal cases, the general laws applicable are the Indian Penal Code and criminal procedure code. At the same time, general law jurisdiction is excluded whenever special laws deal with the offences. Relevant section act of criminal procedure code in this connection S. 4 (2) is as under.
1. That all the offences, whether under the Penal Code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the code.
2. This rule is subject to qualification that in respect of offences under other laws that is to say, under laws other than the Indian Penal Code, if there is an enactment regulating the manner of investigation, inquiring into trying or otherwise dealing with such offences such enactment will prevail over the code.
3. The Provisions of special law or local law will prevail over the provisions contained in the code unless there are specific provisions to the contrary. The Honorable Jharkhand High court in Ashwin Kumar Singh Vs. State of Jharkhand 2007 LLR 866 while reiterating the settled legal position that special law shall prevail over the general law and both shall not concurrently run for the same cause of action, held that in the wake of prosecution under special law i.e. factories Act. In the said case the prosecution under the general law i.e. IPC, is not sustainable. The above position is reiterated and confirmed by the Jharkhand High Court in Binod Kumar Das vs. State of Jharkhand 2008 II LLJ 692 and Ravindra Agarwal Vs. state of Jharkhand 2010 LLR 1058. No one can deny that the factories Act being a special law deals with offences and violations of the provisions and rules made there under. A perusal of the provisions as contained in section 92 of the Factories Act is evidently clear that the accidents as a result of violations or negligence of the employer are well within the ambit of Section 92 of the Factories Act. Section 92 of the Factories Act reads as follows
General Penalty for offences :- Save as is otherwise expressly provided in this Act and subject to the provisions of section 93 if in or in respect of any factory there is any contravention of any of the provisions of this Act or of any rules made there under or any order in writing given there under, the occupier and the manager of the factory shall each be guilty of an offence punishable with imprisonment for a term which may extend to two years or with fine which may extend to (one lakh rupees) or with both and if the contravention is continued after conviction with a further fine which may extend to (One Thousand Rupees) for each day on which the contravention is so continued. Provided that where contravention of any of the provisions of chapter IV or any rule made there under, or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than (twenty five thousands) in the case of an accident causing death, and (five thousand rupees) in the case of accident causing serious bodily injury.
A careful study and examination of section 92 makes it abundantly clear that it deals with the penalties not only for general offences of contravention of the previsions or rules or orders but also for the contraventions of provisions of orders or rules that result in accidents causing death or bodily injury. Therefore the factories inspectorate have exclusive jurisdiction to investigate, inquire into or try or otherwise deal with the offences as a result of contravention of the provisions or rules or orders under the Factories Act by the employer and the manager.
Doctrine of Double Jeopardy
Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles of 20-22 of the Indian Constitution, Provisions are made relating to personal liberty of citizens and others. Apart from this, Section 300 of the criminal procedure Code and 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. A reading of the same makes it clear. Section 300 of Cr. Pc reads as follows.
Person once convicted or acquitted not to be tried for the same offence : A Person who has once been tried by a court of competent jurisdiction for an offence convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub section (1) of Section 221 or for which he might have been convicted under sub section (2) thereof.
Section 26 of the General Clauses Act : Provisions as to offences punishable under two or more enactments : Where an act or commission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.
Section 71 of IPC :- Limit of punishment of offences made up of several offences : where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided.
The constitution Bench of Supreme Court in SA Venkatraman VS Union of India (1954 AIR SC 375) explained the scope of doctrine of double jeopardy and held that to attract article 20 (2) of the Constitution, there must have been co existence of prosecution and punishment in respect of the same offence.
In Omprakash Gupta VS State of UP AIR 1957 SC 458 and in State of MP VS Veereswar Rao Agnihotri AIR 1957 SC 592 Supreme Court held that two or more offences under trial must be identical in sense import and content to attract the doctrine of double Jeopardy. The important test is whether the offences charged by the police and the offences charged by the factories Inspector have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. The thrust is on the ingredients on the offence but not on the allegations made by the prosecution. The employers contesting or defending the case against them by invoking double jeopardy shall keep in mind the above criteria...
Mens rea and the offence under the Factories Act
Motive is not an ingredient of an offence. The proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating in an offence, the evidence of proof of motive is not material. The Supreme Court in JK Industries Limited VS Chief Inspector of Factories and Boilers 1997 1 LLJ 722 SC held that the role of mens rea is immaterial in respect of offences under the Factories Act. The offences are strict statutory offences for which establishment of mens rea is not an essential ingredient. The omission or commission of statutory breach is itself the offence. The rule of strict liability is attracted to the offences committed under the Act and the Occupier is held vicariously liable along with the manager and the actual offender as the case may be, penalty follows "actus reus_mens rea being irrelevant. Even where the Occupier establishes that the actual offender is the person named by him, he must still prove to the satisfaction of the court that he had used due diligence to enforce the execution of the Act and that the said other person committed the offence in question without his knowledge, consent or connivance". It is absolutely clear that mens rea is irrelevant and immaterial in prosecutions for the offences under the factories Act.
The participatory role of workers : The participatory role of workers in safety management is crucial and invaluable. Recognizing the need and to make the workers also responsible, the Factories Act mandates the obligations to the workers under section 111.
Obligations of Workers- Section 111 of the Factories Act
No worker in a factory
(a) Shall willfully interfere with or misuse any appliances, convenience, or other thing provided in a factory for the purpose of securing health, safety and welfare of the workers therein.
(b) Shall willfully and without reasonable cause do anything likely to endanger himself or others and
(c) Shall willfully neglect to make use of any appliance or other thing provided in the factory for the purpose of securing the health or safety of the workers therein.
2. If any worker employed in a factory contravenes any of the provisions of this section or of any rule or order made there under, he shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees or with both.
Offences by workers : section 97 of the Factories Act
1. Subject to the Provisions of Section 111, if any worker employed in a factory contravenes any provisions of the Act or rule or order made there under imposing any duty or obligation or liability on workers, he shall be punishable with fine which may extend to five hundred rupees.
2. Where a worker is convicted of any offence punishable under sub section (1) the occupier or manger of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its protection.
No doubt obligations and liability is fixed under section 111 but in no case workers are made responsible and charged with offence. It is always justified by an argument that no worker exposes himself voluntarily to the danger of his life and holding the workers responsible for the accident that cause injury or death of workers is beyond the cannons of justification. Regardless of the negligence on the part of worker, the factories Inspectorate will generally proceed against the occupier and or manager in case of accidents. It may not be easy for the employer to wriggle out of the charges, by virtue of section 111 of the Act, unless there is sufficient evidence to prove the failure of the worker. The employer should not only prove the failure or negligence of worker but also prove such failure or negligence is willful. Proving willful failure or negligence is nothing but imposing impossible conditions.
The Factories Act provides for an occasion wherein the employer or the manager can seek exemption from liability in certain cases. Section 101 deals with it and which reads as follows.
Exemption of occupier or manager from liability in certain cases (section 101)
Where the occupier or manager of a factory is charged with an offence punishable under the Act, he shall be entitled upon complaint duly made by him and on giving to the prosecutor not less than three clear days notice in writing of his intention so to do to have any other person whom he charges as. The actual offender brought before the court at the time appointed for hearing the charge, and if, after commission of the offence has been proved the occupier or the manager of the factory, as the case may be, proves to the satisfaction of the court.
(a) That he has used due diligence to enforce the execution of this Act and
(b) That the said other person committed the offence in question, without his Knowledge, consent or connivance. The occupier or manager along with their witnesses are subjected to be examined on oath and cross examined to prove beyond doubt that the other person is the real offender. The occupier or the manager have three months time to bring the actual offender before the court failing which the court can safely conclude that the occupier or the manager are only the persons responsible for the offences. It is clear that the occupier or Manager cannot get away with their liability easily. The Act in spite of providing opportunities to the occupier or manager to safeguard their interests by bringing the actual offender before the court, the onerous responsibility of proving beyond doubt casts on the occupier or manager makes it difficult to wriggle out of the charges.
Dual jurisdiction being exercised by the police and the factories inspectorate in respect of accidents in the factories is permissible or not is a subject matter of interpretation. Section 105 of the Factories Act clearly bars the action by any other agency except in accordance with the provisions of the Act. Section 105 reads as follows :-
Cognizance of offences
(1) No court shall take cognizance of any offence under this Act except on complaint by or with the previous sanctions in writing of an Inspector.
(2) No court below that of a presidency magistrate or magistrate of the first class shall try any offence punishable under this Act.
After review of the legal provisions and judicial pronouncements relevant to the subject under discussion one can safely conclude that.
1. The Factories Inspector is only competent person and has exclusive jurisdiction to file prosecution in respect of accidents in factories. Section 105 of the Factories Act is a formidable bar and ban on actions by any other agency without the sanction or permission of the Factories Inspectorate.
2. The police or any other person cannot file prosecutions independently without previous sanction of the Factories Inspector.
3. Filing prosecutions under the Indian Penal Code by police is against the basic principle of law i.e. special law prevail over general law and with utter disregard to section 4 (2) of the criminal procedure code.
4. Launching prosecutions by two government authorities for same offence certainly amounts to double jeopardy and violation of fundamental rights of the employer under the provisions of Article 20 of the constitution. In so far as the prosecutions launched for accidents by the police under IPC and the factories inspector under the Factories Act, the facts and ingredients of the offence are one and the same and hence the doctrine of double jeopardy comes to the rescue of the occupier or manager. Legalities apart, the travails of passing through the prosecution are painful and agonizing to the employers. More so arresting the occupier by the police without having jurisdiction over the offences is nothing but harassment and violation of his fundamental rights.