HEMANT MADHUSUDAN NERURKARversusSTATE OF JHARKHAND AND ANOTHER

                           [2016] 2 S.C.R. 1052



A               HEMANT MADHUSUDAN NERURKAR
                                    v.
               STATE OF JHARKHAND AND ANOTHER
                     (Criminal Appeal No. 442 of2016)
B                             MAY04,2016
       [JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.]
         Factories Act, 1948 - s. 92 - General penalty for offences -
  Inspection of factory premises - Contract labour engaged therein
C - Certain defects pointed out - Cognizance against the owner and
  the manager - SLP before this Court - Petitioner removed all the
  defects pertaining to infrastructure - Subsequently, defects
  pertaining to contract labour also rectified - Thus. the order passed
  by the High Court, rejecting the prayer made by the appellants for
  quashing the proceedings initiated against them, does not call for
D inle1:ference -As regards the punishment of appellants uls. 92, rather
  than requiring the appellants lo face a protracted trial, this Court
  may consider the appropriateness of imposing a reasonable
  p1111"hme11t 011 the appellants, by accepting the said violations,- In
  terms of the mandate of s. 92, to meet ends of justice, penalty of
  Rs.50,0001- each imposed on the appellants - Bihar Factaries Rules.
E
  1950.
          Delhi Cloth and General Mils Co. Ltd. vs. The Chief
          Co111111issioner, Delhi and others 1970 (2) SCR
          348:(1970) 2 SCC 172; J.K. Industries Limited and
          others vs. Chief Inspector of Factories and Boilers and
F
          others 1996 (6) Suppl. SCR 798: (1996) 6 SCC 665 -
          referred to.
                          Case Law Reference
    1970 (2) SCR 348               referred to               Para 5
G   1996 (6) Suppl. SCR 798        referred to               Para 11
         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 442 of2016.
        From the Judgment and Order dated 09.03.2015 of the High Court
  of Jharkhand at Ranchi in an application under Section 482 of the Code
H being Cr. M. P. No. 1987 of 2014.
                                   1052
     HEMANT MADHUSUDAN NERURKAR v. STATE OF                                  1053
             JHARKHAND AND ANOTHER

                                 WITH                                         A
      Cr!. A. No. 443of2016
     K. V. Vishwanathan, Sr. Adv., Abhijeet Sinha, Arijit Mazumdar,
Abhinav Muketji, Shambo Nandy, Ad vs. for the Appellant.
      Tapesh Kumar Singh, Mohd. Waquas, Advs. forthe Respondents.             B
      The Judgment of the Court was delivered by
      JAGDISH SINGH KHEHAR, J. I. Leave granted in both the
special leave petitions.
         2. The controversy arising for adjudication emerges from the
provisions of the Factories Act, 1948 (hereinafter referred to as ' the
                                                                              c
Act'), and the Bihar Factories Rules, I 950 (as applicable to the State of
Jharkhand). Insofar as the alleged violations committed by the appellants
are concerned, a summary of the same stands recorded in paragraph 3
of the impugned judgment, which is extracted hereunder:
                                                                              D
      "3. It appears that an inspection carried out in the Growth Shop
      ofM/s Tata Steel Limited on 14.09.2013 and in course ofinspection,
      it was found that in Fabrication Yard No. I about 100 numbers of
      contract labourers engaged. However, on inquiry, it came to the
      notice of the Inspecting Team that though the Management took
      overtime service from them, but in terms of Factories Rules, 1950       E
      (Form-I OA) overtime slip not provided to them, which is violative
      of Rule I 03A of the Factories Rules, 1950. The Inspecting Team
      further found that the contract labourers were not provided with
      leave book in Form-15 of the Factories Rules, which is violative
      of Rule 88 ofJharkhand Factories Rules, 1950. It is further alleged
                                                                              F
      that on inspection of canteen, the following shortcomings defected:
         (a) There is no partition for the female workers in the dining
         hall and service counter.
         (b) Doors and windows of the canteen are not fly proof.
         (c) Menu Chart, rate and the names of members Canteen                G
         Managing Committee has not disclosed on the board.
         (d) for washing of utensils no arrangement of hot water has
         been made."
        3. Based on the above allegations, cognizance was taken against
the occupier- Heman! Madhusudan Nerurkar (the appellant in Criminal
                                                                              H
Appeal No. 442 of 2016 - arising out of SLP(Criminal) No. 6410 of
1054            SUPREME COURT REPORTS                           [2016] 2 S.C.R.


 A     2015), and the manager - Rupam Bhaduri ( the appellant in Criminal
       Appeal No. 443 of 2016 - arising out of SLP(Criminal) No. 6406 of
       2015).
             4. Keeping in mind the apparently trivial issues, on which
       proceedings were taken out against the appellants, this Court on the first
 B     date of hearing, i.e., on 14.08.2015, recorded the following order:
             "Heard Mr. K. V. Vishwanathan, learned senior counsel for the
             petitioner and Mr. Tapesh Kumar Singh, learned Standing Counsel
             for the State of Jharkhand.
             Having heard learned counsel for the parties, it is directed that
 c           the concerned Inspector shall verify the factory premises and
             find out whether the defects pointed out by him have been rectified
             or not.
             List the matter in the first week of September, 2015.
             The Registry is directed to reflect the name of Mr. Tapesh Kumar
 D           Singh in the Cause List on the next date of hearing."
              5. A perusal of the above order reveals, that the entire purpose of
       passing the same, was to ensure that violations if any are rectified. It
       seems, that the aforesaid course of action was taken on the basis of the
       decision rendered by this Court in the Delhi Cloth and General Mils Co.
       Ltd. vs. The Chief Commissioner, Delhi and others, reported in ( 1970) 2
 E
       SCC 172, for the reason, that the appellants asserted that they needed to
       have been afforded an opportunity to cure the defects and irregularities
       found during the course of inspection, and only if they had failed to abide
       by t11e provisiol! >of the Factories Act, 1948 and the Rules, it would be
       open to the authorities to proceed against the appellants.
 F           6. After 14.08.2015, the matter came up for consideration on
       30.11.2015, on which date the motion Bench passed the following order:
              "It is submitted by learned counsel for the petitioner that the
              petitioner has removed all the defects pertaining to infrastructure
              but two defects pertaining to contract labour are not yet been
 G            removed because the burden lies on the contractor under the law.
                  Mr. Sinha, learned senior counsel along with Mr. Tapesh
              Kumar Sipgh, learned counsel for the State shall obtain instructions
              in this regard.
                   Let the matter be listed in the third week of January, 2016."
 H                       '
     HEMANT MADHUSUDAN NERURKAR v. STATE OF                                    1055
       JHARKHAND [JAGDISH SINGH KHEHAR, J.]

      7. A perusal of the above ord~r reveals, that two defects pertaining      A
to contract labour had not been removed. Insofar as the instant aspect
of the matter is concerned, it has·1been the submission of the learned
counsel. for the appellants, that these two allegations leveled against the
appellants, were the responsibility·ofthe contractor who had provided
the contract labour. And, not of the appel Iants.
                                                                                B
      8. Lastly, the matter came up for consideration on 27.4.2016, when
this Court ordered as under:
      "Learned counsel for the petitioner(s) states, that the violation
      with reference to the contract labourers, depicted in paragraph 3
      of the impugned judgment, will be rectified within four days from         c
      today, and that the matter may be taken up for hearing again on
      4.5.2016.
       List again on 4.5.2016."
      9. In compliance with the directions issued by the motion Bench
order dated 27.4.2016, an affidavit has been filed on behalf of both the        D
appellants, affirming that the two defects pertaining to the contract labour
have also been rectified.
      10. Given the aforesaid f~ctual position, the question which arose
for consideration is, whether the appellants could still be punished under
Section 92 of the Act, which provides as under:                                 E
       "92. 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 thereunder or of
       any order in writing given thereunder, the occupier and manager          F
       of the factory shall each be guilty of an offence and 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
                                                                                G
       which the contravention is so continued:
       Provided that where contravention of any of the provisions of
       Chapter IV or any rule made thereunder or under section 87 has
       resulted in an accident causing death or serious bodily injury, the
       fine shall not be less than twenty five thousand rupees in the case
                                                                                H
1056            SUPREME COURT REPORTS                          [2016] 2 S.C.R.



 A           of an accident causing death, and five thousand rupees in the
             case of an accident causing serious bodily injury.
             Explanation - In this section and in section 94 "serious bodily
             injury" means an injury which involves, or in all probability will
             involve, the permanent loss of the use of, or permanent injury to,
 B           any limb or the permanent loss of, or injury to, sight or hearing, or
             the fracture of any bone, but shall not include, the fracture of
             bone or joint (not being fracture of more than one bone or joint) of
             any phalanges of the hand or foot."
             11. Insofar as the seriousness of the issues is concerned, learned
 c     counsel for the State of Jharkhand, Mr. Tapesh Kumar Singh, vehemently
       contends, that the violations committed at the hands of the appellants
       should not be termed as trivial. It was submitted, that the enactment
       under reference has a laudable role, inasmuch as, the same extends to
       ensure due facilities to the labour engaged in factories, and provides
       measures to regulate emoluments of factory employees. In this behalf,
 D     learned counsel for the respondents has placed reliance on a decision of
       this Court rendered in J.K. industries Limited and others vs. Chief
       Inspector of Factories and Boilers and others, reported in ( 1996) 6
       SCC 665, and placed reliance on the following observations recorded
       thereunder:
 E            "40. In keeping with the aim and object of the Act which is
             essentially to safeguard the interests of workers, stop       their
             exploitation, and take care of their safety, hygiene and welfare
             at their place of work, numerous restrictions have been enacted
             in public interest in the Act. Providing restrictions in a Statute
 F           would be a meaningless formality unless the statute also contains
             a provision for penalty for the breach of the same. No restriction
             can be effective unless there is some sanction compelling its
             observance and a provision for imposition of penalty for breach
             of the obligations under the Act or the rules made thereunder is a
             concom.itant and necessary incidence of the restrictions. Such a
 G           provision is contai.ned in Section 92 of the Act, which contains a
             general provision for penalties for offences under the Act for
             which no express provision has been made elsewhere and seeks
             to lay down uniform penalty for all or any of the offences
             committed under the Act. The offences under the Act consist of
             contravention of (I) any provision of the Act;(2) any rules framed
 H
HEMANT MADHUSUDAN NERURKAR v. STATE OF                                  1057
  JHARKHAND [JAGD!SH SINGH KHEHAR, J.]

thereunder; and (3) any order in writing made thereunder. It             A
comprises both acts of omission and commission. The persons
punishable under the Section are occupiers and managers,
irrespective of the question as to who the actual offender is.
The provision, is in consonance with the scheme of the Act to
reach out to those who have the ultimate control over the affairs
                                                                         B
of the factory to see that the requirements for safety and welfare
of the employees are fully and properly carried out besides
carrying out various duties and obligations under the Act. Section
92 contemplates a joint liability of the occupier and the manager
for any offence committed irrespective, of the fact as to who is
directly responsible for the offence. The fact that the notjfied I       c
identified director is ignorant about the 'management' of the
factory which has been entrusted to a manager or some other
employee and is himself not responsible for the contravention
cannot absolve him of his liability. The identified/notified director
is held vicariously liable for the contravention of the provisions of
                                                                         D
the Act, the rules made thereunder or ofany order made in writing
under it for the offender company, which is the occupier of the
factory.
41. Mr. Jain, Mr. Nariman and Mr. Tripathi, appearing for the
appellants, however, argued that since Section 92 imposes a
liability for imprisonment and/or fine, both on the occupier (the        E
notified director) and the manager of the factory, jointly and
severally, for the contravention of any of the provisions of the Act
or any rule made thereunder or of any order in writing given
thereunder, irrespective of the fact whether the occupier (the
notified director) or manager, had any mens-rea in respect of            F
that contravention or that the contravention was not committed
by him or Was committed by any other person in the factory
without his knowledge, consent or connivance, it is an
unreasonable restriction. Learned counsel argued that in criminal
law, the doctrine of vicarious liability is unknown and if a director
is to be punished for some thing of which he is not actually guilty,     G
it would violate his fundamental right as enshrined in Article 21
of the Constitution. It was urged that on account of advancement
in science and technology, most of the companies, appoint
professionally qualified men to run the factories and nominate
such a person to be the 'occupier' of the factory and make him.          H
1058      SUPREME COURT REPORTS                              [2016] 2 S.C.R.



 A     responsible for proper implementation of the provisions of the
       Act and it would, therefore, be harsh and unreasonable to hold
        any director of the company, who may be wholly innocent, liable
       for the contraventions committed under the Act etc. when he
       may be totally ignorant of what was going on in the factory, having
       vested the control of the affairs of the factory to such an officer
 B
       or employee, by ignoring the liability of that officer or employee.
       The argument is emotional and attractive but not sound.
       42. The offences under the Act are not a part of general penal
       law but arise from the breach of a duty provided in a special
       beneficial social defence legislation, which creates absolute or
 c     strict liability without proof of any mens rea. The offences are
       strict statutory offences for which establishment of mens rea
       is not an essential ingredient. The omission or commission of the
       statutory breach is itself the offence. Similar type of offences
       based on the principle of strict liability, which means liability without
 D     fault or mens rea, exist in many statutes relating to economic
       crimes as well as in laws concerning the industry, food adulteration,
       prevention of pollution etc. In India and abroad. 'Absolute
       offences' are not criminal offences in any real sense but acts
       which are prohibited in the interest of welfare of the public and
       the prohibition is backed by sanction of penalty. Such offences
 E     are generally knows as public welfare offences. A seven Judge
       Bench of this Court in R.S. Joshi vs. Ajit Mills (AIR 1977 (SC),
       2279, at page 2287: SCC p. 110, para 19):
          "'Even here we may reject the notion that a penalty or a
          punishment cannot be cast in the form of an absolute or no-
 F        fault liability but must be proceeded by mens rea. The classical
          view that ' no mens rea no crime' has long ago been eroded
          and several laws in India and abroad, especially regarding
          economic crimes and departmental penalties, have created
          severe punishments even where the offences have been defined
 G        to exclude mens rea. Therefore, the contention that Section
          37(1) fastens a heavy liability regardless or fault has no
           force ...... "
       43. What is made punishable under the Act is the 'blameworthy'
       conduct of the occupier which resulted in the commission of the
       statutory offence and not his criminal intent to commit that
 H
     HEMANT MADHUSUDAN NERURKAR v. STATE OF                                       1059
       JHARKHAND [JAGDISH SINGH KHEHAR, J.]

       offence. The rule of strict liability is attracted to the offences          A
       committed under the Act and the occupier is held vicariously
       liable along with the Manager and ihe actual offender, as the
       case may be. Penalty follows actus reus, mens-rea being
       irrelevant."
      12. In view of the above declaration by this Court, we are of the            B
view, that it is not possible for us to interfere with the impugned order
passed by the High Court, wherein the prayer made by the appellants
for quashing the proceedings initiated against them, was declined. We
therefore hereby confirm the same.
       13. Despite our above conclusion, learned counsel for the appellants        c
points out, that the factual position is clear, and that, rather than requiring
the appellants to face a protracted trial, this Court may consider the
appropriateness of imposing a reasonable punishment on the appellants,
by-accepting the aforesaid violations, summarised in paragraph 3 of the
impugned order.
                                                                                   D
       14. Learned counsel for the respondents - State of Jharkhand,
states that he has no objections to the suggestion made by the learned
counsel for the appellants.
       15. Having given our thoughtful consideration to the allegations
levelled against the appellants, we are satisfied, that in terms of the            E
mandate of section 92 of the Act; ends of justice would be met, if a
penalty of Rs.50,000/- each is imposed on the appellants. Ordered
accordingly. The aforesaid amou.nt of penalty shall be deposited by the
appellants before the trial Court, within four weeks from today.
      16. The instant order shall also dispose of the criminal proceedings
                                                                                   F
against the appellants in G.O. Case No. 252 of2013, pending before the
Judicial Magistrate, First Class, Seraikella, after the penalty amount is
deposited by the appellants before the trial Court.
       Disposed of in the aforesaid terms.
Nidhi Jain                                                 Appeal.disposed of.     G