1. This appeal is filed by the State of Gujarat against the order of the Judicial Magistrate, First Class, at Veraval, acquitting the accused of the offence under S. 92 of the Factories Act. The accused is a factor manager of the Indian Rayon Corporation, Ltd., and the factory is situated at Veraval. The case of the prosecution is that on 6 January, 1964 one worker K. Parmeshwaran Pillai was working on the shredder machine as a paid apprentice operator. The shredder machine is working continuously. The speed of the common shaft of the screw conveyer and the shredder is about 150 revolutions per minute. The diameter of the hole in the shredder at the bottom side is about 8 inches and the screw conveyor worms are situate just near the hole which is at a height of about 2 feet from the flour level so as to be easily accessible to the worker's hand. This hole was covered by a flange with two nuts which in that position serves as a guard to the running screw conveyor worms. The duty of the operator was to note down the ampere reading of the electric current every half-an-hour and if the reading exceeded 50 amperes, jamming was indicated and it was the duty of the operator to open the said flange covering the screw conveyor worms by removing the two bolts. As soon as the flange was opened, the alkaline cellulose would be stopped being fed to the shredder and the viscous liquid would immediately get out of the hole and there by jamming would get automatically removed. This operation had to be done by the operator whenever there was jamming. On the day of the incident when the ampere reading was 85, the worker K. Parmeshwaran Pillai tried to open the flange to remove jamming. He applied his left hand for this operation and his hand slipped and as it came in contact with the running screw conveyor worms of the shredder, half of his left thumb, the whole of first and second fingers and a portion of the third finger up to two phalanges were chopped off. The complainant factory inspector visited the factory and inquired into this accident. As he found that at the time of the accident to the said worker, the shredder machine with its screw conveyor worms had been running at a speed of 150 revolutions per minute without any guard in front of the hole of the shredder to prevent contact with the screw conveyer worms, which was a dangerous part of the machine, he has filed this complaint against the accused for contravention of S. 21(1)(iv)(c) of the Factories Act, 1948, hereinafter referred to as the Act, which is punishable under S. 92 of the Act. The defence of the accused was that it was not possible to take any further precaution and that the flange itself served as the guard for the screw conveyor worms. Besides, the operator had been instructed to work carefully when the reading exceeded 50 amperes and the flange had to be opened. The operator had to remove the nuts and he had not to touch the flange as the viscous liquid would automatically fall down. If something more was necessary to be done, he had to inform the chief chemist. The learned Magistrate held that the worker was not expected to touch the machine after opening the flange and that therefore this was not a foreseeable accident and that there was no liability to provide any other guard, except the flange, as the said act of adjustment was excluded by the proviso to S. 21(1)(iv)(c) of the Act. Accordingly he acquitted the accused and, hence, the State has filed the present appeal.
2. The prosecution was under S. 92 of the Act which provides that -
'save as otherwise expressly provided in the Act ... if in, or in respect of any factory there is any contravention of any of the provisions of this Act ... the occupier and manager of the factory shall each be guilty of the offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.'
3. The contravention alleged is of S. 21(1)(iv)(c) of the Act. Section 21(1) provides that in every factory ...
'(iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely :
(a) every part of tn electric generator, a motor or rotary convertor,
(b) every part of the transmission machinery, and
(c) every dangerous part of any other machinery,
shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of the machinery they are fencing are in motion or in use.'
4. Then follows the proviso which is also material for our purpose. The proviso enacts that for the purpose of determining whether any part of machinery is in such position or is of such construction as to be safe as aforesaid account shall not be taken of any occasion when, it being necessary to make an examination of the machinery while it is in motion, or, is a result of such examination to carry out any mounting or shipping of belts, lubrication or adjusting operation while the machinery is in motion, such examination or operation is made or carried out in accordance with the provisions of Sub-section (1) of S. 22. Section 22 provides limitations for carrying out the examination or as a result of the examination, the operation of mounting of belts, lubrication or other adjusting operation, if they are necessary to be done while the machinery is in motion on fulfillment of the safeguard provided in that section. This section runs as under :
'22. Work on or near machinery in motion. -
(1) Where in any factory it becomes necessary to examine any part of the machinery referred to in S. 21 while the machinery is in motion, or as a result of such examination to carry out any mounting or shipping of belts. Lubrication or other adjusting operation while the machinery is in motion, such examination or operation shall be made or carried out only by a specially trained adult male worker wearing tight-fitting clothing whose name has been recorded in the register prescribed in this behalf and while he is so engaged -
(a) such worker shall not handle a belt at a moving pulley unless the belt is less than 6 inches in width and unless the belt joint is either laced or flush with the belt,
(b) without prejudice to any other provisions of this Act relating to the fencing of machinery every set-screw, bolt and key on any revolving shaft, spindle, wheel or pinion, and all spur, work and other toothed or friction gearing in motion with which such worker would otherwise be liable to come into contact, shall be securely fenced to prevent such contact ...'
5. Section 21(1), Clause (iv), casts an absolute obligation to fence securely every part of an electric generator, a motor or rotary converter, every part of the transmission machinery, and every dangerous part of any other machinery. This obligation of securely fencing such dangerous part is not complied with by merely providing a safeguard of substantial construction, but such safeguards must always be kept in position while such dangerous parts of the machinery which they are fencing are in motion or in use. The only exception is in cases where by reason of it position or construction such dangerous part is safe to every person employed in the factory as if it was securely fenced. The position of the dangerous part of its construction must be such as to make it inaccessible to every employed person as if it was securely fenced. If the dangerous part is at such height that it is inaccessible or its construction is such that it is so safe as if it had been securely fenced, the requirements of the section are complied with. It is also implicit in this absolute obligation to safeguard that it is qualified by the test of fores ability. The normal rule of providing and maintaining the safeguard in position therefore does not apply and the machine may be left unguarded, if it is so safe as if it was securely fenced in respect of every employed person by reason of its position or its construction or if the risk from the unguarded machine was not a foreseeable risk. As the exception contemplates the part being safe and inaccessible to each and every one of the persons employed, a further excedtion had to be carved out in the shape of a proviso to exclude certain occasions in determine whether the part was in such position or was of such construction, when out of necessity the concerned worker had to be permitted to have access to such dangerous part while the same is actually in motion. The occasion would be one of examination or as a result of such examination, of some operation like the mounting of the belt, lubrication or other adjustment, if the same was necessary to be done while the machinery was in motion. The legislature had either to permit such risk being taken by allowing such necessary examination or consequential adjustment operated to be carried out, while the dangerous part of the machine was in motion or to suffer loss of production or even interruption of the continuous process. If even in such cases the legislature were to insist on absolute safety of any such worker who must have a necessary access to the moving parts such worker would be required to carry out every such work of necessary examination or even of consequential adjustment only after stopping the machinery. The legislature, therefore, struck a just balance between the need of absolute safety and the need of machinery being kept in motion and permitted certain workers to approach the unguarded machinery in motion, provided such work was carried out in accordance with limitations enacted in S. 22(1) which guaranteed at least in a limited manner some measure of safety even to such workers. Once this exception was provided, the legislature had to enact this proviso to S. 21(1)(iv) by excluding such occasions of work by these special workers in judging the safety of the unguarded machinery by reason of its position or construction in respect of every person employed in the factory, in so far as such workers were in terms permitted to have access thereto subject to the limitations provided in S. 22(1). The occasions which are included in the proviso to S. 21(1)(iv) and on which the legislature permits access to an unguarded machinery in motion must therefore, fulfill the following conditions :-
(1) The occasion must be one on which it becomes necessary either to examine the machinery when it is in motion or as a result of such examination to carry out any mounting of belt, lubrication or other adjusting operation while the machinery is in motion.
(2) Such work of examination or consequential operation of mounting of belt, lubrication or other adjustment must be down only by a specially trained adult male worker wearing tight-fitting clothes and whose name has been recorded in the prescribed register in that behalf.
(3) While the worker is so engaged, there must be the limited provision for this safety, in that
(a) the belt which he has to handle at a moving pulley shall not be more than 6 inches in width and the belt-joint must be either laced or flush with the belt;
(b) without prejudice to any other provision of the Act relating to the fencing of the machinery, every set-screw, bolt and key on any revolving shaft, spindle, wheel or pinion, and all spur, worm and other toothed or friction gearing in motion with which such worker would otherwise be liable to come in to contact, shall be securely fenced to prevent such contact.
6. The effect of Ss. 21(1)(iv) and 22(1), therefore is to lay down a normal rule that every part of electric generator, a motor or rotary convertor, every part of the transmission machinery, and every dangerous part of any other machinery shall not only be securely fenced by a substantial safeguard but such a guard shall always be kept in position while the part of the machinery it is fencing is in motion or in use. This absolute liability to fence extends only to foreseeable dangers and does not cover any risk from the unguarded machinery which is not a foreseeable risk. This liability of fencing also does not extend to the cases where such unguarded part by reason of its position or construction is so safe as to be inaccessible to every person employed in the factory. In judging the applicability of that exception, certain occasions are excluded when it becomes necessary to examine the machinery in motion or as a result of such examination, to carry out the operation of mounting of belt, lubrication or other adjustment, provided it is necessary to do so while such dangerous part is in motion and such work is carried out in accordance with the conditions laid down in S. 22, by a specially trained adult male worker, wearing tight-fitting clothes and whose name is recorded in the register prescribed in that behalf. Even for such work such worker is secured a minimum measure of safety as regards the belt to be handled and as regards the set-screw, belt and key on any revolving machinery and all spur, worm and other toothed or friction gearing in motion with which he would otherwise be liable to come in contact for that part at least must be securely fenced to prevent such contact. When the absolute liability for fencing is cast on the occupier or the manager, it will be his duty to keep the guard in position when the machinery is working and as soon as the default is established by showing that on a particular occasion there was no fencing it will be for him to establish that notwithstanding that there was no liability on him. The burden of proving that the case was one of exception to the normal rule must lie on the accused in such a case.
7. The main provision in S. 21(1)(iv)(c) came up for interpretation of the Supreme Court in State of Gujarat v. Jethalal Ghelabhai Patel [1964 - I L.L.J. 389] where the manager of an oil mill was charged for not fencing the spur gear wheel of the mill. A workman of the mill while greasing the spur gear wheel which was in motion had one of his hands caught in it. It was contended that the spur gear wheel had a cover which had bolts for fixing it to the base but at the time of the accident, the cover was not there, having apparently been removed earlier, and so the employer was not liable. This Court had acquitted the accused on the ground that the absolute obligation under S. 21(1)(iv)(c) of the Act was qualified by the test of foreseeability and on the ground that if the safeguard provided by the employer was rendered nugatory by an unreasonable or perverted act on the part of the workman; there was no liability of the employer or the manager. The Supreme Court, while reversing the said judgment, held that those two principles had no application to those facts as it was not contended that risk (sic). The Supreme Court further held at p. 391 as under :-
'Does the mere fact that someone else had removed the safeguard without the knowledge, consent or connivance of the occupier or manager always provide a defence to him We do not think so. When the statute says that it will be his duty to keep the guard in position when the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this he was not liable. It is not necessary for us to say that in every case where it is proved that the manager or occupier had provided the necessary fence or guard but at a particular moment it appeared that the fence or guard had been removed, he must be held liable. Suppose the fence for some reason for which the manager or occupier is not responsible suddenly breaks down and the machine remains unfenced for some time before the owner or occupier found that out and replaced the fence. It may be that in such a case he cannot be made liable. A statute does not of course require an impossibility of a person. But there is nothing to show that is the case here. The respondent has given no evidence whatever to show what he had done to carry out his duty to see that the guard was kept in position when the machine was working. The onus to prove that was on him because his defence depended on it. He has completely filed to discharge that onus. We, therefore, think that he is liable under S. 92 of the Act for having failed to carry out the terms of S. 21(1)(iv)(c).'
8. In Criminal Reference No. 57 of 1960 decided on 31 January, 1961 by the Division Bench consisting of Shelat, J. (as he then was), and Bakshi, J., the question arose in connexion with a belt-mounter who had met with an accident while he was mounting a belt at a shaft which was running at a speed of 120 revolutions per minute and which was, normally at an inaccessible height. That occasion on which the said worker had an access to the shaft for the purpose of mounting the belt was held to be an excluded occasion for judging safety of that dangerous part by reason of its inaccessible position, for in that case the defence had proved all the three conditions which were necessary before the proviso could apply, namely :
(1) that there was an occasion when it was necessary on examination to mount the belt on a pulley;
(2) that it was necessary to do so while the machinery was in motion; and
(3) that such mounting operation was carried out in accordance with the provisions of S. 22(1).
9. As the defence had proved that all the conditions necessary to be fulfilled under S. 22(1) had been fulfilled, it was held that such occasion of access to an unguarded machinery in respect of a belt-mounter was excluded under the proviso to S. 21, and, therefore, the manager was acquitted of the offence of contravention of S. 21.
10. None of these decisions can help Sri Chhaya in the present case. It is not disputed that the screw conveyor worms of the shredder revolving at the speed of 150 revolutions per minute formed a dangerous part and it is fact admitted that the flange was provided as a guard for fencing this dangerous part of the shredder machine. The prosecution had, therefore, clearly established the default of the accused by shoeing that on the occasion in question when Pillai was injured, that part was left unfenced as a result of the flange having been opened out. The burden would, therefore, be upon the defence to show that the exception was attracted. This dangerous part was only at a height of 2 feet from the floor level and no question could arise of safety of this part by reason of its position to every person employed in the factory. Similarly no question could arise of safety of this dangerous part by reason of its construction to every person employed in the factory as it was not disputed that the operator himself had to open the flange by unscrewing bolts for removing jamming as soon as the ampere reading exceeded 50 amperes and the jamming was indicated. Even though Sri Chhaya vehemently argued that this was not a foreseeable risk, there was no such plea taken up by the defence either in the cross-examination of the prosecution witnesses or in the statement of the accused under S. 342. In fact the manager admits in his statement that the worker had pulled down the flange and while pulling it down the hand had gone inside, but that would not always happen. The very fact that this adjustment operation had to be done about 3 to 4 times a day would rule out any contention of unforeseability of the risk. Even as per the instructions alleged to be given to the operator to be careful while opening out the flange in case of jamming and not to touch it but to report the matter to the chief chemist would suggest that the risk had been foreseen. It is the case of the defence that as soon as the two bolts were taken out, the flange would always automatically fall down, while the complainant factory inspector in his evidence says that the flange may not automatically come down and some kind of pull may have to be exerted to open out the flange so that the viscous liquid may fall down and jamming may be removed. The factory inspector has deposed that in fact when he carried out the demonstration at the time of his visit, the flange had to be pulled out. Whatever may be the true position, the risk in such a case was inherent in any such instruction for handing the flange by the operator as the flange was the only safeguard which prevented the access of the worker to the dangerous part of the shredder machine. It must not be forgotten that this liability of fencing is absolute and it does not depend on the fact that the worker is wise or foolish, careful or negligent, obedient or disobedient. The two doctrines urged by Sri Chhaya based on the foreseeability of the danger and on the ground that there was no liability to guard against a perverted act of the worker could hardly have any relevance to the facts of the present case.
11. Chhaya next relied upon the proviso to S. 21(1)(iv) and urged that this occasion of adjustment at the time of jamming was clearly an excluded occasion. The argument of Sri Chhaya which has been accepted by the learned trial Magistrate is clearly misconceived. It is not that every such occasion of adjustment that is excluded under the proviso to S. 21(1)(iv), but it is so, only when the worker specified in S. 22 approaches the moving machinery for carrying out such necessary operation on fulfillment of the conditions provided in that section. The present worker K. P. Pillai is not shown to be such a worker. The factory inspector has deposed that he was only a paid apprentice operator. Under S. 22, the worker who is permitted to make adjustment operation as contemplated in the said section must be a worker who is a specially trained adult male worker, wearing tight-fitting clothing and whose name is entered in the prescribed register for this purpose. It is also an admitted fact that except the flange, no other guard was provided. One of the necessary conditions specified in S. 22 which has to be fulfilled even when the worker specified in that section is permitted to take the risk by approaching the moving machinery is that all the spur, worm or other toothed friction gearing in motion with which such worker is liable to come in contact shall be securely fenced to prevent such contact. There is, therefore, not an iota of evidence led by the defence to show that this was an excluded occasion by reason of the fact that the necessary adjustment was carried out by the worker permitted to do it in accordance with the provisions of S. 22(1). Sri Chhaya, however, argued that this is not a case for breach of S. 22, but he forgets the fact that in order to claim the benefit of proviso to S. 21(1)(iv) for getting the occasion excluded it is a necessary condition that on such occasion the necessary adjustment operation to the moving part of the machinery must be done by a worker specified in S. 22 and in the manner provided in S. 22. The proviso to this section incorporates all the conditions or limitations laid down in S. 22 for the purpose of finding out whether it is an excluded occasion or not. To avail of the exception, therefore, the defence must show that all the requirements of S. 22 were fulfilled and in respect of that worker such risk was permitted and then only the occasion would be excluded for consideration of the fact whether the dangerous part was in such position or was of such construction as to be safe to every person employed in the factory. There is, therefore, not an iota of evidence in the present case to invoke the exception to S. 21. The prosecution had, therefore, beyond all doubt established that the machinery in question was unfenced in so far as it was accessible to the worker K. P. Pillai on the date of the incident and the accused had, therefore, committed the breach of S. 21(1)(iv)(c) which was punishable under S. 92 of the Act. As nothing was shown by the defence to bring the case under any exception, the order of acquittal of the learned Magistrate must be set aside. The appeal is, therefore, allowed and the accused is convicted under S. 92 of the Act and is sentenced to pay a fine of Rs. 200, in default, simple imprisonment for a week.