1-6. x x x x x x
7. The question that falls for determination is whether that cover, (of spur gear wheel --Ed.) having been removed without the knowledge or consent or connivance of the respondent(the manager of the Oil Mills--Ed.) he could still be held guilty of breach of Section 21(1)(iv)(c) read with Section 92 of the Art (Factories Act --Ed.). As we have said, the learned Magistrate found that he was not, and that finding has been strenuously challenged by the learned Government Pleader.
8. The learned Government pleader contended that (1) under Section 21(1)(iv)(c) of the Act, the liability of the occupier or, the manager of a factory was absolute; and (2) that if Section 21(1)(iv)(c) were to be read with Section 101 of the Act, it would be clear that unless the occupier or manager of a factory, when charged with an offence punishable under this Act, files a complaint to have any other person whom he charges as the actual offender, brought before the court at the time appointed for the hearing of the charge against him, and proves to the satisfaction of the court that that person committed the offence in question without his knowledge, consent, or connivance, the absolute liability, provided for in Section 21(1), would remain attached to him, and he should be found guilty of the breach of the provisions of that section.
9. In order to appreciate these two contentions of the learned Government Pleader it would be necessary to quote these two sections. Section 21(1)(iv)(c) provides as follows :
'In every factory, 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 machinery they are fencing are in motion or in use'.
There is a proviso to Section 21, but as it is nobody's case that that applies, it is not necessary to quote it. Section 92 provides that :
'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 rule made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to three months orwith fine which may extend to five hundred rupees or which both.......'.
It is clear from these two sections that there is a clear obligation to have every dangerous part of machinery in a factory securely fenced bysafeguards of substantial construction which shall be kept in position while the parts of machinery they have fenced are in motion or in use, and the liability for a default of failure to execute this part of the section is absolute on the occupier or the manager of the factory where such machinery is situate. In other words, the prosecution has only to establish that the machinery or part of themachinery, which is dangerous, was not fenced securely as required by this section and no more.The liability thus does not depend on the existence of mens rea, which is the usual ingredientof a penal offence.
10. Section 101 which provides for theexemption of the occupier or manager from liability in certain cases is as under : --
'Where the occupier or manager of a factory is charged with an offence punishable under this 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 writting 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 the commission of the offence has been proved, the occupier or 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
that other person shall be, convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory, and the occupier or manager, as the case may be, shall be discharged from any liability under this Act in respect of such offence.'
The learned Government Pleader contended that once an occupier or a manager is charged under Section 21(1)(iv)(c), unless he brings his case under Section 101 of the Act, as soon as the commission of the offence is established by the prosecution, such an occupier or manager, as the case may be, without anything more, must be found guilty under Section 21(1) read with Section 92 of the Act. On a reading of Section 101, it is clear that the section is a sort of a proviso to the absolute character of the liability laid down in several sections in this Act. Having laid down the absolute liability on the occupier or manager; it would seem that the legislature considered it necessary to provide that he would be entitled on a complaint made by him to have another person prosecuted as the actual offender. If he then were to prove that he was duly diligent to enforce the provisions of the Act, and that it was that other person who did the act or default in question, as the case may be, without his knowledge or consent he would be exempted from the liability. Thus, although the statute throws absolute liability on the occupier or manager, it recognizes a defence to such absolute liability where an accused can show to the satisfaction or the court that someone else committed the offence without his knowledge or consent.
11. The learned Government Pleader referred to certain unreported judgments of the High Court of Bombay in order to establish that the liability of an occupier or a manager of a factory, was absolute in character. In State v. Sankalchand G. Shah, Criminal Appeal No. 120 of 1950, D/- 18-4-1950 by Gajendragadkar and Vyas, JJ. it was held that on a consideration of Section 63 read with Sections 92 and 101 of the Act, in a case, where certain workers were made to work over-time, the liability of the occupier or manager of the factory was absolute and not dependent on the proof ofguilty intention or knowledge. Similarly in Criminal Appeal No. 1107 of 1953, State v. James Albert Sutton, decided by the same learned Judges on the 14th April 1954, the charge was under Section 21(1)(iv)(c) read with Section 92 of the Act. There the facts were that on the 15th December 1952, the Inspector of Factories learnt that one Jiwoo Amir, a workman in the Kohinoor Mills Ltd., died as a result of an accident. At the time of the accident, be was working on the Hydro Extractor, which was driven by electric motor with patent rope drive, and according to the prosecution, the speed of the basket was 1200 involutions per minute. The workman received injuries near his right eye, on the face and on the skull. Inquiries revealed that the interlocking device, which would have kept under cover the basket of the Hydro Extractor in close position until the basket ceased to revolve, was not in working order at the time of the accident. The defence was that the lid on the top of the basket should not have been opened by the workmen before ascertaining through the looking glass in the lid that the basket had ceased to revolve. After considering the provisions of Section 21(1)(iv)(c), the learned Judges held that there was an absolute obligation on the employer to securely fence the dangerous machinery so as to save any accident to the workman, and that that obligation must be fully and effectively complied with. They also observed that the obligation on the employer cast by this section was made absolute with the object of protecting the workman even against his careless or unreasonable contact on occasions, and that sometimes without wilful default or without any criminal intention, workmen handling dangerous machineries were likely to be careless casually or even unreasonably and that it was in view of such human conduct that an absolute obligation had been imposed on the employers who employ labour in industrial concerns. The learned Judges rejected the defence on the ground that it would not be a reasonable argument to contend that the device which had been adopted by the respondent in that case might have served the purpose if the workman had been more careful. Dealing with the absolute character of the obligation cast by Section 21(1), they observed that it was no answer by an accused that the workman could have avoided the accident if only he had been careful or had not been careless or foolish. The Act threw absolute obligation on the occupier or manager, because it must not be assumed that everybody would always be careful, and it was impossible to guarantee that workers sometimes would not be foolish or even reckless. The object of the Act was to save and protect them against their own folly or carelessness. The absolute nature of such an obligation on the occupier or the manager of a factory is also found in a corresponding section, Section 14, of the English Factories Act. In Davies v. Thomas Owen and Co. Ltd., (1919) 2 K. B. 39, this aspect of the obligation was emphasised by holding that even if it was commercially impracticable to fence a dangerous machinery, it would be no answer to the provisions of this section.
12. Though these decisions would seem to show that the liability under Section 21 of the Act is absolute in character, a series of decisions indicate that there are certain limits to the absolute character of this obligation. The case or State v. L. G. Patel, 61 Bom L. R. 1021 : (AIR 1960 Bom D, is a case in point, where on an interpretation of Sections 21 and 92 of the Act the liability, though absolute, was held to be limited to dangers which were reasonably foreseeable. In that case, some carding machines, in the carding department of a mill were being shifted to some other place during the recess time when the machinery was not in motion. Instructions were issued to do the shifting only during the recess when the shaft and pulleys were not in motion. One of the carding machines had been stopped working as it was to be shitted on the following day. On that day, a few minutes before the recess, a workman placing a ladder against a steam pipe stood up on it and attempted to take a belt of this carding machine which was lying idle on a hanger on the other side or the shaft and pulley, which were in motion. In doing so the workman was entangled in the belt and the moving shaft and died as a result of the injuries sustained by him. On these facts, the accused, who was the manager of the mill, was charged under Section 21(1)(iv)(c) for having failed to securely fence the shaft and pulleys or the carding department which formed part or the transmission machinery. On behalf of the State it was contended that the safety aimed at by Section 21(1)(iv) was absolute safety, and that the shaft and pulleys were not by their position absolutely safe to every person employed in the factory. The accused contended that the safety, though absolute, could be only against foreseeable risks and dangers and not otherwise and that therefore, the shaft and the pulleys did not require to be fenced as they were in such a position as to be safe to every person employed in the factory, as they would have been, if they were securely fenced It was held that in the circumstances of the case, the risk from the unfenced overhead shaft and pulleys was not a foreseeable risk, and, therefore there was no breach of the statute. The learned Judges relied upon two English decisions in Findlay v. Newmin, Render and Co. (1937) 4 All E R 58 and Burns v. Joseph Terry and Sons, Ltd., (1950) 2 All E. R. 987. In (1937) 4 All ER 58, Du Parcq, J. observed :--
'The magistrates may possibly have thought that it was negligence; they may have thought that if was serious negligence and disobedience to orders by the man who was injured. But even if that be so, if the occupier of the factory could have foreseen that workmen would do what the workman did, or if any reasonable person could have foreseen such a thing's happening, it is impossible to say that the machinery was safe. Here the injury was undoubtedly suffered; it was suffered by a man doing something which, clearly from the finding that there had been a noticewarning the workmen, the employers had understood might happen.
In(1950) 2 All ER 987 Somervell L. J., referring to the decision in (1937) 4 All ER 58, observed -
'I do not think there is any decision on the point binding on this Court, I think, the balance of dicta is slightly against the plaintiff. On the face of them the words used by Lord Hewart, G. J., are in his favour, but Lord Hewart, C. J., did not, I think, have in mind the issue whether the 'absolute safety' was to be against foreseeable risks .... I will, however, consider the question of construction on principle. In the first place, I think that in this group of sections the same test should be applied in deciding whether machinery is 'securely fenced' as is applied in deciding whether it is 'dangerous.' To an allegation that machinery which has, in fact, caused injury, is dangerous, it is admittedly a good answer to prove that it was not dangerous in any reasonably foreseeable circumstances. I see no difficulty in applying the same test to the question whether machinery is securely fenced, and would respectfully adopt the form in which the question is formulated on this basis by Lord Du Parcq and Lord Normand............'
As Somervell L. J. put it,
'the question was not whether what the plaintiff actually did was reasonably foreseeable, but whether the occupier should have reasonably foreseen the possibility of an accident. The question was whether the prosecution would have succeeded before the accident, which leads to the claim, has happened. On the other hand, if, an accident having happened, no one can suggest other circumstances which would have led to an accident, the issue may, in fact, narrow itself to the 'question whether the circumstances which led to the accident were reasonably foreseeable.'
Relying on these observations, the learned Judges, who decided the case of 61 Bom LR 1021: (AIR 1960 Bom 1) held that on a construction of Section 21(1)(iv), there was no doubt that the transmission machinery in question in that case, should be securely fenced unless the same, by reason of its position or construction, was safe to every person employed in the factory, as it would be, if it were securely fenced. They also held that the safety aimed at was absolute safety. They, however, observed that the aim of the section was to provide absolute safety to every person employed in the factory from the risk and danger of coming into contact with the transmission machinery, but that risk or danger as contemplated by this section must reasonably be foreseeable. The Legislature could not have intended that the occupier was to provide safety for the persons employed in the factory, against risks which could not even reasonably be foreseen. The risk and danger resulting from a person coming into contact with machinery can be so complex and varied that all possible risks or dangers cannot be reasonably foreseen or anticipated. They further observed that the Legislature could not have contemplated to penalise anoccupier of a factory for not providing for safety against risk or danger which he could not reasonably foresee or anticipate. In this connection, Mr. Shah drew our attention to certain observations to be found in Halsbury's Laws of England, Third Edition, Vol. 17, page 74, where the propositions laid down in some of the leading cases on the corresponding section in the English Factories Act have been succinctly summarised. It is there stated that every dangerous part of a machinery in a factory, other than prime movers or transmission machinery, must be securely fenced, unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced. This is so even though the effect of fencing securely is to make the machinery unusable, and this obligation cannot be evaded by the issue of instructions to employees. At page 71 in the same volume, it is observed that the words 'securely fenced' have the same meaning in each of the statutory provisions requiring machinery to be securely fenced, and mean so fenced as to give security to all persons employed or working on the premises against such dangers as may reasonably be expected. For this purpose, circumstances, which may reasonably be anticipated include a great deal more than the staid, prudent, well-regulated conduct of men diligently attentive to their work, and the possibility of negligent, ill-advised, indolent or even frivolous conduct must always be taken into account. These decisions thus show that the obligation or liability under Section 21(1)(iv), though absolute, must be considered to be limited to dangers which are reasonably foreseeable.
13. Another aspect of such limitation is to be found in cases such as Carr v. Mercantile Produce Co. Ltd., (1949) 2 KB 601, where the respondents were charged as occupiers of a factory for breach of Section 14(1) of the Factories Act, 1937, on the footing that the worm of a macaroni extruding machine, was not securely fenced and that in consequence of such contravention, the girl working the machine suffered injury. The machine in question consisted of a hopper into which the dough used in the manufacture of macaroni was fed by the person who attended the machine. The hopper consisted of two parts, the upper part being funnel shaped. In between the two parts was a circular metal plate situated 5 inches above the rotating worm, which was at the bottom of the lower half of the hopper. The metal plate consisted of two concentric rings, the diameter or the outer ring being 5 inches and that of the inner 1-5/8 inches. It was possible for the fingers of the operator to pass through these spaces, but if a person working the machine only put his or her fingers through, they would not come in contact with the worm. It was only possible for fingers to touch the worm if the hand was also pushed through the space in the plate, an operation which was not altogether easy to accomplish. When the machine was, in operation, dough from time to time would stickto the side of the lower part of the hopper and on the day of the accident, the injured girl put her hand through the metal plate, which was intended as a guard for the purpose of dislodging some dough while the worm was rowing, with the result that the extreme ups or two of her fingers were caught by the rotating worm and cut off. The question was whether in these circumstances, the employer should be held liable under the Factories Act.
14. The Magistrate held that it was Unreasonable of the employee to attempt to dislodge, the adherent dough with her fingers while the worm was rotating when she could, without difficulty, have switched off the motor, or have dislodged the dough with a stick or other Implement. He also found that on other occasions the injured girl and other women employees had put their fingers through the open space of the plate to release dough adhering to the inside of the hopper, but there was no finding either that the respondents knew of this practice or that any accident had ever happened in consequence. He accordingly dismissed the prosecution. The order of dismissal was confirmed by the Appellate Court, In confirming the order of dismissal, Stable J., while agreeing that the Factories Acts were enacted not merely to protect the careful, the vigilant and, the conscientious workmen, but human nature being what It is, the careless, the indolent, the inadvertent, the weary, and even perhaps in some cases the disobedient, observed that the duty, as has been said, was not to fence 'somewhat securely', but securely, but there must be some limit placed on the word 'securely,' and a fence did not necessarily cease to be secure because by 'some act of perverted and deliberate ingenuity' the guard could be forced or circumvented and the safeguards provided thereby rendered nugatory. Lord Goddard, C, J., approvingly quoted the observations made by Scrutton L. J. in Higgins v. Harrison, (1932) 25 BWCC 113 at p. 118, where he had, stated-
'The first question is, was the machine dangerous?. ................'
Holding that the machinery in question was not dangerous, he stated:
'Of course, it was dangerous if you went and put your hand into it every machine is dangerous if you go and put your hand into it whilst it is working..................'
A little later he stated:
'She (the injured worker) does not suggest that anybody told her to pick up that particular thing; the suggestion is that nobody told me not to'. Nobody told her not to go and stand on her head in the middle of the machine, but it did not follow that, if she did so, the employer would be liable for negligence because he had not provided for that unexpected manoeuvre.'
Greer L. J. also delivered the judgment in (1932) 25 BWCC 113 to the same effect. It is true that the action in (1932) 25 BWCC 113 was a civil action. But as Lord Goddard has observed, the rules of construction of a section would apply in the same manner both in civil as well as criminal matters. Though put in somewhat different language, the test applied in (1932) 25 BWCC 113 is again, what has been called, the test of foreseeability, that is, the behaviour of human beings to which regard is to be had is such behaviour as is reasonably foreseeable.
15. Similarly in John Summers and Sons Ltd. v. Frost, (1955) 1 All ER 870 Viscount Simonds said the correct position in law is the dicta of Du Parcq, J. in Walker v. Bletchley Flettons, Ltd. (1937) 1 All ER 170 at p. 175 to the effect that a machine is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur, if read in conjunction with what Lord Justice Clerk said in Mitchell v. North British Rubber Co., Ltd., 1945 SC (J) 69 at p. 73 that a machine is dangerous if in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent upon his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part.
16. A proposition of the like nature is also to be found in Charlesworth on Negligence, Third Edition, at page 417, where the learned commentator states that if the carelessness on the part of a worker is quite outside ordinary expectation, the fact that the machine has caused injury to the person who has committed such carelessness is not conclusive proof that it is a dangerous machine. He quotes with approval a case where a girl, told to pick up capsules from the floor, put her hand in a machine which was working, and it was proved that there had been four similar unfenced machines in use in the factory for sixteen years, without any accidents and without any requirement from the factory inspector that they should be fenced, it was held that the machines were not dangerous machines. At page 419, the same learned author remarks that a guard which has been forced off or removed in some exceptional way inconsistent with the reasonable though careless use of the machine would not be a breach of the statute. This statement would indicate that if a safeguard, such as a cover or a screen against a dangerous machine, is already provided for by the employer, but that guard or screen is found to have been forced off or removed in some unusual, way inconsistent with the reasonable use of such machine, then the employer would not be liable.
17. So far as is relevant for our purposes, two principles seem to emerge from these authorities, (1) that though the obligation to safeguard is absolute under Section 21(1)(iv) of the Factories Act, it is qualified by the test of foreseeability; and (2) that if protection is provided for by the employer by having a guard or-other, safeguards, if such safeguard is rendered nugatory by an unreasonable or perverted act on the part of the workman, even though such act is notdone with any criminal intention, there is no liability on the part of the employer.
18. The learned Government Pleader contended that the Factories Act is a social piece of legislation and should be leniently construed. Such an argument was in fact suggested in (1650) 2 All ER 987, but was negatived by Somervell L.J. who approved Lord Simonds' statement in London and North Eastern Ry. Co. v. Berriman, (1946) 1 All ER 255 at p. 270 that a man is not to be put in peril upon an ambiguity, however much or little the purpose of the Act appeals to the predilection of the court. Lord Wright, who dissented in that case had suggested that that principle did not apply to Acts such as the Factory Acts and to the Act what was considered in that case, viz., the Railway Employment (Prevention of Accidents) Act, 1900. But Lord Simonds regarded the principle as applicable to all provisions imposing penalties, including those where the object of the Act, was the protection of the life and limb of workers.
19. Bearing these principles in mind, we ask ourselves, what is the position in the present case before us? There was indisputably a guard covering the spur gear wheel. It is not in dispute that that was a sufficient and adequate screen against all possible risks or dangers even taking into account that human nature being what it is, workers not only careful and skilled, but even the careless, the foolish, the unskilled and, in some cases, even the disobedient, might come hear the wheel and would require protection. It is the case of both the workman and the respondent that the cover which was provided for was removed, and was not there when the accident occurred. The controversy starts at this point on the question, who removed it and why? The workman said that it was removed for repairs, and, therefore, the gear wheel ought to have been stopped when he went to that wheel for greasing.
Of course, it is no answer for the employer to say that lie should not have tried to grease the wheel seeing that the spur wheel was in motion and there was no cover. That is a foreseeable risk and the employer has to see that in such a case the, machinery was not in motion. Bill it is clear that when the workman said that the cover was removed for repairs, he did not say so from his personal knowledge. He merely speculated, and that is quite obvious even from his evidence in chief. On the other hand, the respondent alleged that it was the workman himself who had removed it. There is no evidence to support either of these two positions though the fact was that someone had removed the cover which was there as a safeguard. Who removed it, is, therefore, a question. But the learned Government Pleader contended that as soon as it was found that the cover was not there at the time of the accident, the machinery was unfenced and since it was in motion when the workman went there to grease it and the accident occurred, the employer was liable unless he took resort to Section 101 of the Act. As we have observed, under Section 101 the employer has to prove, (a) that he was duly diligent; (b) that a particular person committed the mischief; and (c) that mischief was committed without his knowledge or consent or connivance; According to the learned Government pleader, if the case of the respondent does not fall under Section 101, and he does not comply with the provisions of that section, the respondent must be held guilty as the Act provides that defence only. He argued that the respondent did in effect take resort to Section 101 by his allegation that it was the workman himself who had removed the cover and was guilty, and ha having failed in that allegation, there was no other defence on which he could rely. Now it is true that the respondent did say that Ghela removed the cover while greasing and got the injury, and, therefore he cannot be held guilty. It is also true that barring his word, there was no evidence to establish that allegation. The workman having denied that allegation, there was, therefore, word against word. The learned Magistrate unfortunately has not discussed this part of the case and has given no finding.
20. But we will assume that the case of the respondent has not been established. What then is the result? The contention of the learned Government Pleader must come to this: that in a case as the one before us, if the employer were to fail to establish his case under Section 101, then he must necessarily be held liable. In other words, where an employer has securely fenced a machinery, but that fencing is removed by someone, if the employer can successfully establish that a particular individual has committed the criminal act, in this case the workman himself, he would be entitled to be acquitted. But if he were to fail to do so, his failure must result in his own conviction. We must disagree with this proposition, for, there is nothing in the Act which warrants it. Section 101 is intended not as an only exclusive defence, as the learned Government Pleader seems to think, but that section provides a procedure whereby in the same prosecution, an accused can establish that not he, but some other offender, has done the criminal act, and in that event, the section enables the court to convict such other person without having to have a separate complaint, a separate charge, and a separate trial. That, in our view is the object of Section 101. As a matter of tact, the respondent in this case did not resort to Section 101, because he did not file any complaint against the workman, as required by that section nor did he give to the learned Prosecutor the requisite notice. But the learned Government Pleader emphasised that even though Section 101, was not resorted to, the only plea by way of defence of the respondent was that the workman had removed the cover. He argued that that being the only defence put forward by the respondent, once he failed to establish it, he must be convicted. That proposition is again unwarranted. In a criminal case, and the present case is a criminal case, an accused is not bound to offer any explanation. Even if he were to offer an explanation, but is not able to establish it, or even if his explanation turns out to be untrue, that fact alone cannot afford a ground for his conviction. That is a fundamental principle or our Criminal Jurisprudence. There is, nothing in the Factories Act to indicate that that principlehas been given a go-by. Equally, there is nothing to indicate in the Act that the Legislature intended that an employer must always be on a look-out to bring to book every offender who removes a safeguard furnished by him, or that a failure on his part to do so must entail his conviction. Section 21(1)(iv) contemplates that there is a default or a failure on the part of an employer to furnish a secure and adequate protection against dangerous machinery. That default has to be established by the- prosecution. Though the obligation of the employer is absolute in the sense that the statute does not require the proof or existence of mens rea, it does not mean and cannot mean that though a proper safeguard was provided for, and the provisions of the statute were thereby duly complied with, although someone else, not known to the employer, removed it without his knowledge, consent or connivance, there would still be such a default as would make him liable to a penal consequence. It is obvious in this case, by any reasonable test, that the respondent could not have removed it, nor could he have caused anyone to remove it. Having provided a cover, he would have no reason to do so. Neither he, nor the workman having done so, and there being no evidence that the cover was sent for repairs, or that it was removed for repairs, it follows that someone, whom the employer could not fix upon, had removed that cover. It is something which an employer could not reasonably be expected to anticipate, and against which contingency, he is or can be expected to exercise surveillance as was argued by the learned Government Pleader.
21. In our view the prosecution failed to bring home, in these circumstances, the liability under Section 21(1)(iv)(c) of the Act to the respondent.