P.R. Sharma, J.
1. This is an appeal by the State Government against an order of acquittal under the Factories Act (Act LXIII of 1948). The respondents K. N. Shnvastava and L. N. Bnagwati were at the relevant time respectively the uccupier and Manager of the Central India Machinery Manufacturing company Limited, Gwalior. On the 6th of May 1959, the said Company was inspected by Shri C.P. Tyagi, Factory Inspector, He noticed that the hoist way enclosure in the Factory was not provided with gates having interlocking arrangement or other efficient device to secure that the gate could not be opened except when the cage was at the landing, and that the cage could not be moved unless the gate had been closed. The present respondents were, theretore, prosecuted for breach of Section 28(1)(e) of the Factories Act. The trial Court found the respondents guilty of the charge and sentenced them to pay a tine of Rs. 50-each. On appeal, the order of conviction and sentence was set aside by the Additional Sessions Judge, awalior.
2. The contention of the present respondents In we Courts below was and still is, that the hoist which was imported from the United Kingdom in 1951 was provided with an arrangement whereby in order to operate it the operator had to come out of the enclosure so as to put on the switch, which was affixed outside the enclosure, This device, it was contended, was sufficient to meet the requirement of the law. The Courts below rejected this contention, and have rightly held that the interlocking arrangement required under the law has to be efficient in order to secure tray the gate cannot b opened except when the cage is at the landing, as also that the cage cannot be moved unless the gate is closed. In the present case, the operator actually got trapped between the moving cage and the fixed tranw of the structure. It is, therefore, obvious that the interlocking arrangement made by the manufacturers in the hoist was not sufficient in order to meet the requirements of Section 28(1)(e) of the Factories Act.
3. The contention which, however, found favour with the lower appellate Court was that the case of the present respondents was covered by Section 117 of the factories Act. That section runs as under;
No suit, prosecution or other legal proceeding snan lie against any person for anything which is in good taitn done or intended to be done under this Act.
The lower appellate Court held that the respondents were entitled to the benefit of the aforesaid provision by reason of the facts that there was no evidence to show that the breach in question had been intentionally or knowingly committed by them, and that the Factory Inspector, san C. P. Tyagi, had admitted that though he had inspected the machinery several times before the date of the incident, he did not notice that the interlocking arrangement in the hoist fell short of the requirements of the law. Relying on the decisions in Public Prosecutor v. Mangaidas V. Inakkar AIR 1958 Andh Pra 79 and In re, P. Lakshmaiah Naiau : AIR1959AP536 the learned Judge held that in cases where no oblique motive or criminal intention has been attributed to the accused the benefit of the provisions of Section 117 of the Factories Act might legitimately .De claimed by them.
It might be mentioned here that In the Factories Act XXV of 1934 a similar provision had been made in Section 81 of the Act, which came up for interpretation before a Division Bench of this Court in Provincial Government or and Berar v. Chap is Dhanji AIR 1938 Nag 406. It was laid down by Pollock and Gruer JJ. that in a prosecution under the Factories Act to prove that the accused was infringed the Act or Rules made thereunder, it is not necessary to show that the accused intended to infringe the Act or the Rules. It was also observed that Section 81 of the Factories Act XXV of 1934 was inserted in the Act primarily, if not entirely, for the benefit of the inspecting staff.
4. In the present case, the contention of the accused is not that they did not know the nature of the interlocking arrangement provided in the hoist by the manufacturers, or that the arrangement was not sufficient to meet the requirements of the law. In fact, the respondents cannot pied in their havoc ignorance of the law as contained in the provisions of Section 28(1)(e) of the Factories Act. I he tact that the inter-locking arrangement was not of the type required by the provisions of the law cannot be disputed. The question which arises, therefore, is whether merely by reason of the fact that the deficiency in the interlock arrangement was not brought to the notice of the occupier or the manager by the Factory Inspector, they can claim the benefit of the provisions of Section 117 of the Factories Act. It would be too far-fetched to say that the installation of the hoist was an act done by the respondents under the provisions of the Factories Act (Act LXIII of 1948). In fact, this hoist was installed prior to the application of the Factories Act of 1948 to this region. On the coming into force of the Indian Factories Act of 1943 the respondents were bound to provide inter-locking arrangement of We type mentioned in Section 28(1)(e) of the said Act, ma omission by them to do so could not in any sense be termed to be an act done in good faith under the provisions of that Act. The cases on which reliance was placed by the lower appellate Court were both of an entirely different character.
In AIR 1958 Andh Pra 79 (supra) the question was whether the Manager by merely allowing workers, who not come late, to work beyond the scheduled time had committed a breach of the Rule 103 of the Madras Factories Kuies. it was held by the High Court on the evidence on record that the workers had not worked for a longer period than was permissible under the law, and that at the time of inspection no one complained that the total number of hours for which they had worked on that day exceeded the prescriDeo limit. It was in these circumstances that the Court neia the breach to be merely technical in nature. I find that the facts of this case d not afford any analogy to the one before us.
In : AIR1959AP536 (supra) also the alleged breach was purely technical in nature. Certaiji casual workers were allowed to work overtime and were paid for tneir part-time work. Section 59 of the Factories Act 1948 permits extra wages to be paid for overtime work, mejr Lora-ships held that the Manager of the Factory honestly benevea that by employing such casual labourers he was not contravening any provisions of the Act. There might be cases where a person in doing an act, which he in good lartn, considers justified in doing under the provisions of the Factories Act, may claim the benefit of Section 117 of that Act. But it is hardly possible to apply that section to a case in which the manager or occupier of a factory not omitted to comply with the provisions of We Act or the Rules made thereunder by reason of sheer neglect on their part to acquaint themselves with the requirements of the law and satisfying themselves that the arrangements make in the factory under their charge are in conformity with those requirements. The neglect to do so would, in my opinion, be the kind of mens rea necessary to constitute an offence punishable under the Factories Act.
5. We would, therefore, allow this appeal and set awe the order of acquittal passed by the lower appellate court, and convict both respondents Under Section 92 of the Factories Act for breach of the provisions of Section 28(1)(e) of the said Act. Considering however, the facts and curcuma stances of this case, we are of the opinion that a nominal sentence of fine would meet the ends of justice in mis case. We would, therefore, order that the respondents snouid pay a fine of Rs. 10/- each or in default Sutter simple imprisonment for one week.
A.H. Khan, J.
6. I agree.