1. This is an appeal from acquittal and it is filed by the State from ,a judgment or the learned Joint Civil Judge, J. D. and Judicial Magistrate, First Class, Broach, acquitting the respondent who was charged with having committed offences under Sub-sections (3) and (4) of Section 36 of the Factories Act (Act LXIII of 1948) read with Section 92 of the said Act.
2. The appeal raises a question under the Factories Act and the question is one of construction of Sub-sections (3) and (4) of Section 36 of the Act. This question arises upon the following facts: The respondent is the occupier of the Gopal Mills Company Ltd., Broach, a factory defined by Section 2, Sub-sections (m), Clause (i) of the Act. On 5-7-1955 at 9-30 O'clock in the morning when the factory was working, an accident occurred in the valve pit of the purification plant installed in the factory. As a result of the accident, five workers died. The names of the workers were Chhotalal Nathubhai, Fakirji Dhanjisha, Melia Daodla, Manganlal Gordhanbhal and Chunilal Bechar. The accident occurred in this way. As the valve for pit No. 2 could not be operated on that day, Melia Dadla was asked to go down into the pit to attend to it. Melia went down into the pit 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. He was made to go down into this confined space without taking all practicable measures to remove any dangerous fumes that were likely to be present to such an extent as to involve risk of his being overcome thereby. Melia was soon overcome by deadly poisonous gases in the valve pit and he died. Subsequently, Fakirji, Maganlal, Chunilal and Chhotubhai were also made to go down into the pit. They too went down without wearing suitable breathing apparatus. They also were overpowered with poisonous gases and died. Tanna, the Superintendent of the Municipal Fire Brigade, went to the spot with breathing apparatus and other appliances and he also entered the pit to save the dying persons. There was poisonous gas inside the pit and Tanna himself was attacked by it and his eyes were affected. He became unconscious. Dr. Rasiklal Parikh, Chief Medical Officer and Surgeon at the Seva-shram. Hospital also arrived at the place of the accident. He found that three persons were lying dead outside the pit and the gas which was coming out of the pit was emitting foul odour. Dr. Rathilal Vakharia is a Mill doctor. He found that five persons had died as the result of having been overcome by carbondioxide. Dr. Khar-shedji H. Kamakaka, the Honorary Surgeon at the Civil Hospitals Broach, is an eye-specialist. He examined the eyes of Tanna and his opinion was that the condition from which Tanna's eyes were suffering was possible to he caused by poisonous gases. The incident was reported ta the Inspector of Factories, Mr. K. N. Parekh, and Mr. Parekh visited the factory and made enquiries. He found that suitable breathing apparatus, reviving apparatus, belts and ropes were not available and were not kept ready for instant use beside the confined space. The Inspector visited the factory again on 18-7-1955 and 6-8-1955, and even then none of the above appliances was kept ready beside the valve pit. Indeed, they were not available anywhere in the factory. Upon these facts, the respondent was prosecuted under Section 36, Sub-sections (3) and (4) read with Section 92 of the Factories Act.
3. After this complaint was Tiled against the respondent, he filed a complaint under Section 101 of the Factories Act against S. D. Vashistha and Haribhai, Tripathi alleging that it was the duty of these two persons to maintain the apparatus specified in Sub-sections (4) of Section 36 and, therefore, he (respondent) was not guilty of the offences with which he was charged.
4. The respondent's defence to the charges against him is that he did not permit the workers to enter the valve pit, that the pit was to be worked from outside and that he was not even present in Broach on the date of the accident.
5. The charges against the respondent having arisen out of the alleged contraventions of Sub-sections (3) and (4) of Section 36 of the Factories Act, Sub-sections (3) and (4) may be set out. Sub-section (3) provides:
'No person in any factory shall enter or be permitted to enter any confined space such as is referred to in Sub-sections (1) until an practicable measures have been taken to remove any fumes which may be present and to prevent any ingress of fumes and unless either (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.'
6. Sub-section (4) provides:
'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, & 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.'
7. As Sub-sections (3) makes a reference to Sub-section (1), Sub-sections (1) may also be set out. Subsection (1) provides:
'In any factory no person shall enter or be permitted to enter any chamber, tank, vet, pit, pipe, blue or other confined space in which dangerous fumes are likely to be present to such an extent as to Involve risk of persons being overcome thereby, unless it is provided with a manhole of adequate size or other effective means of egress.'
8. Now, there is no dispute that the five men who went down into the confined space, namely, the valve pit, died as they were overcome by poisonous fumes which were present in the valve pit. There is also no dispute that these five men went down into the pit without wearing a breathing apparatus. It is also not disputed that no breathing apparatus, no reviving apparatus, no belts and no ropes were kept ready for instant use beside the valve pit. Now, so-far as the charge under Sub-sections (3) of Section 36 was concerned, the learned Magistrate held that as the pit was to be worked by a contrivance from outside, it was not necessary for anybody to enter the pit so long as the machinery outside was in order and no permission was expressly given to anybody to enter it. In the view of the learned Magistrate, 'no permission was given, express or implied, to Fakirji or any of them to enter the pit.' and therefore there was no contravention of Sub-sections (3) of Section 36. Regarding the charge under Sub-sections (4) of Section 36, the learned Magistrate held that the liability to keep the apparatus specified in Sub-sections (4) beside the pit arose only when the permission to enter the pit was granted or when a person had entered the pit consequent upon that permission. He took the-view that for a liability to maintain the apparatus under Sub-sections (4) to arise, the person must enter the pit lawfully, i.e. after obtaining permission. As the five men who died in this case had entered the valve pit without permission, the learned Magistrate held that the provisions of Sub-sections (4) of Section 36 were not attracted. Upon the above construction which the learned Magistrate put upon Sub-sections (3) and (4) of Section 36, he acquitted the respondent and the State has appealed from that acquittal.
9. In our view, the construction put by the-learned Magistrate upon Sub-sections (3) and (4) of Section 30 is not right. For attracting the application of Sub-sections (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 with 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. It is contended for the respondent that as the valve pit was worked by a machinery from outside, it was not necessary foranybody to ask for permission to enter the pit and no question arose for the occupier or the manager to grant the permission. It is also contended that no such permission was asked for or granted. Now, it could not possibly be said that the machinery for operating the pit would never get out of order. Machineries do get out of order and indeed in this case it did get out of order on the date of this accident. The scheme of the Act, which is a welfare legislation, is to require an employer, to take precautionary measures for safe-guarding 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. In our view, the respondent who is the occupier of the factory, upon whose premises there is a valve pit containing deadly poisonous gases, ought to have foreseen quite a normal possibility of the machinery getting out of order and of the workers thereupon entering the pit to operate the pit. In the discharge of his duties and obligations under the Act, he ought to have taken all reasonable steps to prevent the workers from entering the pit except in conformity with the provisions of Sub-sections (3) and (4) of Section 30. In the judgment delivered by a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice Tendol-kar on 15-10-1948 in Criminal Revn. Appln. No. 1222 of 1948 (Bom) (A), it was observed by the learned Chief Justice that the primary responsibility is that of the Manager to take every step to see that the provisions of the Act are carried out. Now, there is no evidence in this case to show that the respondent had taken all reasonable steps to prevent the workers from entering the pit in case a normal possibility of the machinery getting out of order arose. There is no evidence to show that he had instructed the workers not to enter the valve pit under any circumstances whatsoever without wearing the breathing apparatus and the belt securely attached to a rope, the free end of which was held by a person standing outside the pit. There is nothing to show that he had put up a notice to that effect upon the premises. Pakirji was the person in charge of operating the pit. There is no evidence to show that the respondent had cautioned him to see that nobody entered the valve pit without wearing the appliances aforesaid. All this would show that the respondent had failed to prevent the entry of the workers into the pit except as provided by Sub-sections (3) and (4) of Section 36. This would in law mean that he had permitted the entry. In Criminal Revn. Appln. No. 1222 of 1948 (Bom) (A), to which I have just referred, the fact was that no steps were taken by the Manager of a factory to prevent the workmen from working overtime. It was held by this Court that the Manager had permitted the workers to work overtime. For the reasons mentioned above, we hold that the respondent in this case had permitted the entry of the abovementioned five men into the valve pit in contravention of the provisions of Sub-sections (3) ofSection 36.
10. As to the alleged contravention of the Provisions of Sub-sections (4) we are of the view that it is not a sufficient compliance with the sub-section to provide a breathing apparatus, reviving apparatus etc., only after coming to know that some person is about to enter the confined space. The Factories Act is a benevolent legislation regulating labour in factories and the safeguarding appliances contemplated by the sub-section (Sub-section (4)) must be kept readyfor instant use at any time and must be immediately available, not only to the person who might enter the confined space with permission, but even to the person who might enter the said space without permission. So far as the benefit of the safeguards is concerned, a beneficent legislation makes no distinction between the persons who comply with the provisions of the Act and those who do not, while in the precincts of the factory. The benefit is intended to be enjoyed by every person working in the factory, irrespective of whether some persons through folly, rashness or negligence contravene the provisions of the Act while in the course of their employment. The respondent's factory has bleaching, dyeing and washing departments and a purification plant is installed for the treatment of effluent water from these departments. The purification plant has a valve pit which is 5 ft. square at the bottom and 12 ft. deep. In this pit or confined space, dangerous fumes are likely to be present to such an extent as to involve risk of persons being overcome thereby. Now, where an employer is making use of a dangerous process such as the one involved in the working of the purification plant, it is not enough for him to make available the appliances necessary to avert or minimise the danger, only when the danger actually overtakes or is about to overtake a worker. The appliances, viz., the breathing apparatus, the reviving apparatus, the belts and the ropes must at all times be available beside the confined space and must be kept ready for instant use at any time, no matter whether the necessity for that use might arise or not arise.
11. The intention of the Legislature has to be gathered from the words used in the statute and the words in Sub-sections (4) are 'shall be kept ready for instant use'. It is implicit in these words that it is not enough for the Manager or occupier of a factory to procure the appliances when somebody applies for permission to enter the pit. Whether anybody applies for permission to enter the pit and then enters it or whether somebody enters it without permission and without satisfying himself that all practicable measures have been taken to remove any fumes which might be present in the pit and to prevent further ingress of fumes, the Manager or Occupier must keep ready the appliances for instant use. If he thinks of procuring them after a person has entered the pit, they might arrive too late and the result might be the same as if they had never been procured or provided at all. The Legislature enacting a salutary law could not have intended to create such a position. Moreover, the word 'beside' in the expression 'shall be kept ready for instant use beside any such confined space' is significant. It signifies that the Legislature by enacting Sub-sections (4), has cast an obligation upon the employer to keep ready at all times the appliances specified in Sub-sections (4) beside the confined space so as to be instantly available to a person for use in case a need suddenly arises for such use and not merely hunt for them, procure them and then keep them near the confined space in case a need is likely to arise for their use. Also, by providing for the periodical examination and certification of the apparatus by a comcetent person regarding its fitness for use, the Legislature has clearly expressed its intention that the apparatus specifically referred to in Sub-section (4) must always be kept ready beside the confined space for instant use irrespective of whether any person has entered the said space or not or whether he has entered it with or without permission or whether a necessity for the use of the apparatus actually arises or not. The learned Magistrate has construed the words 'which any person has entered' in Sub-sections (4) as meaning 'which any person has lawfully entered i.e., entered after obtaining permission' and has, upon that construction, held that it is sufficient compliance with the sub-section if the employer after granting permission to a person to enter the confined space provides the apparatus specified in Sub-sections (4). The learned Magistrate is in error. It is wrong, in our view, to limit the meaning of the entry of a person to an entry with permission. The word 'entered' in Sub-sections (4) must be given its full and natural meaning and it must be construed to mean entry with or without permission. Now, if a person enters without permission the confined space in which dangerous fumes are present, what would be the result if the breathing apparatus and reviving apparatus are not kept ready beside the confined space for Instant use, but are to be procured and then kept near the Raid space? The result would be almost certain death. In which case the safeguard provided by the Legislature in Sub-sections (4) would be useless and would be as good or as bad as not provided at all. For these reasons, we must accept the contention of the State that under Sub-section (4) of Section 36 of the Act there is an obligation cast by the Legislature upon the Manager or Occupier of a factory to keep ready at all times, beside a confined space, the suitable breathing apparatus, the reviving apparatus, belts and ropes for instant use whether any person has entered the said space or not, whether the entry has been made with permission or not and whether any need for the use of these appliances arises in fact or not. It is not disputed that no such apparatus and appliances were kept ready beside the valve pit or indeed anywhere in the factory. The respondent, therefore, clearly contravened the provisions of Sub-sections (4) of Section 36 also.
12. Mr. Rajani Patel has invited our attention to the provisions of Section 27 of the English Factories Act of 1937. We have read the provisions of Section 27. But in our view, a reference to these provisions on the point of construction of Sub-sections (3) and (4) of S, 36 of the Indian Act is futile. In the provisions of Section 27 of the English Act, we do not find any provisions analogous to the provisions of Sub-sections (3) of the Indian Act regarding granting of permission to enter a confined space nor do we find any provisions analogous to the provisions of Sub-sections (4) regarding keeping ready for instant use breathing apparatus, reviving apparatus, belts and ropes beside a confined space. It would, therefore, not be fruitful to comment further upon the provisions of Section 27 of the English Act.
13. I have already stated in the earlier part of this judgment that after the present complaint was filed by the Inspector of Factories against the respondent under Sub-sections (3) and (4) of Section 36 read with Section 92 of the Factories Act, the respondent himself had filed a complaint under Section 301 of the Act against S. D. Vashistha and Haribhai Tripathi alleging that it was the duty of those two persons to maintain the apparatus specified in Sub-sections (4) of Section 36 and that, therefore, the respondent was not guilty of the offences with which he was charged.
14. Accordingly, while allowing the present appeal filed by the State and while setting aside the acauittal of the respondent, we direct that the respondent's complaint filed by him underSection 101 of the Act against S. D. Vashistha andHaribhai Tripathi shall be proceeded with by theMagistrate and shall be decided according to law.After the complaint is decided according to law,the present complaint under Section 36, Sub-sections (3) and(4), read with Section 92 of the Act against this respondent shall be decided according to law in thelight of the present judgment delivered by usand also in the light of the decision of the Magistrate in the respondent's complaint under Section 101of the Act.
15. Appeal allowed.