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Chandra Bhusan Chatterjee and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1962CriLJ22
AppellantChandra Bhusan Chatterjee and ors.
RespondentThe State
Cases ReferredR. v. Burah
Excerpt:
- .....being hoisted from the ship's hold by means of a derrick, the wire runner fouled against the thwartship beam on the top deck of the hatch as a result of which the workers fell from a height of about 25 feet and suffered injuries which ended fatally for one of them. it is said that the hatch beam not having been adequately secured, got displaced which resulted in the men being thrown into the ship's hold down a depth of about 25 feet.5. there were two derricks operating on the ship on which there were several hatches with coverings on them. these hatches were supported by beams which had mechanical locking devices; they were of the removable type of beams, and each had at both ends a beam bolt in the nature of a locking bar which was to be fitted to a corresponding hole in the ship's.....
Judgment:

Debabrata Mookerjee, J.

1. This is an appeal from convictions under paragraph 55(2) of the Indian Dock Labourers Regulations 1948, read with Section 5 of the Indian, Dock Labourers Act, 1934.

2. The appellants were convicted by the Chief Presidency Magistrate and each sentenced to pay a fine of Rs. 500/- in default to suffer simple imprisonment for six months.

3. Appellants Chandra Bhusan Chatterjee and Byomsankar Chatterjee are partners of a firm of Stevedores, Messrs, P. Chatterjee of 7, Garstin. Place, Calcutta. Appellant Mati Lal Chatterjee is an employee of the firm entrusted with the work of supervision in connection with the firm's business.

4. A ship carrying cargo of salt was berthed at the Prinsep Ghat moorings and salt was being off-loaded by the said firm on the 23rd of October 1958 when an incident occurred which caused the death of a worker and injuries to four others who had been employed by the appellants in unloading the cargo. On receipt of information the Inspector, Dock Safety, commenced an investigation which resulted in a complaint charging the appellants with having contravened paragraph 55(2) 'of the Regulations. The allegation is that when a basket of salt was being hoisted from the ship's hold by means of a derrick, the wire runner fouled against the thwartship beam on the top deck of the hatch as a result of which the workers fell from a height of about 25 feet and suffered injuries which ended fatally for one of them. It is said that the hatch beam not having been adequately secured, got displaced which resulted in the men being thrown into the ship's hold down a depth of about 25 feet.

5. There were two derricks operating on the ship on which there were several hatches with coverings on them. These hatches were supported by beams which had mechanical locking devices; they were of the removable type of beams, and each had at both ends a beam bolt in the nature of a locking bar which was to be fitted to a corresponding hole in the ship's coming at the end of the hatch. The beam bolts were bent and they had gone out of alignment. That being the case, each beam was secured with a coping stanchion by lashing it with wire ropes. The result was, the beams by being only lightly secured were 'at play'. The sling to which the basket was tied carrying each time a heavy load of several maunds, struck against the beam when the derrick was being operated and that caused displacement of some of the hatch, coverings resulting in the workers being thrown down a depth of about 25 feet. The Inspector who preferred the complaint, examined himself and three of the workers employed by the firm of stevedores of which two of the appellants were partners.

6. The appellants pleaded not guilty and the defence seems to be that they were not the ship's owners and whatever precautions it lay in them to take, had been taken. It was suggested that the beam had been tightly secured with wire ropes and it Was Just an accident which had occurred resulting in the death of a worker and injury to others.

7. On a consideration of the evidence the learned Magistrate held that the allegations made against the appellants had been proved. He accordingly convicted and sentenced them as stated above.

8. The Indian Dock Labourers Act has been enacted to give effect to the draft convention adopted at Geneva concerning protection against accidents of workers employed in loading and unloading ships. It provides for the appointment of Inspectors who have been given power to enter any premises or ship where processes are carried on; and a bar has been imposed upon prosecution for infringement of the Act or Regulations made under it except at the instance of such Inspector. By Section 5 the Central Government has been empowered to make regulations providing for the safety, of workers and of working places. By Sub-section (3) of the section it has been provided that

in making a regulation under this section, the Central Government may direct that a breach or it shall be punishable with fine which may extend to five hundred rupees.

Pursuant to powers given by the Act, the regulations have been framed by the Central Government and duly promulgated in terms of the Act. Paragraph 22 of the Regulations provides for maintenance of beams and hatch coverings. It says that all fore and aft beams and thwartship beams used for hatch coverings and all batch coverings shall be maintained in good condition. This is a general provision and liabilities for breach of certain specified regulations are dealt with in paragraph 44 thereof which says that it shall be the duty of every person who by himself or his agents or employees carries on the processes and of all agents, employees and workers employed by him in the processes to comply with Regulations 45 to 57-A. In this case we are concerned with Regulation 55 which says that the beams of any hatch in use for the processes shall, if not removed, be adequately secured to prevent displacement. 'Processes' have been defined as operations which include all work which is required for or is incidental to the loading or unloading of cargo or fuel into or from a ship and is done on board the ship or alongside it.

9. The citations above indicate that everyone connected with the processes and all agents, employees and workers engaged in the operations have responsibilities to satisfy themselves that the beam of any hatch in use must be adequately secured to prevent its displacement.

10. There is no controversy that appellant Mati Lal Chatterjee was a supervisor appointed by the other appellants who were partners of the firm of stevedores engaged in the operation of offloading the cargo of salt from the ship's hold. It was somewhat feebly argued that appellants Chandra Bhusan and Byomsankar bad nothing to do with tile operations; at any rate, Byomsankar had not even been proved to have any interest in the partnership business. It is quite obvious that the prosecution proceeded on the footing that Chandra Bhusan and Byomsankar were partners. Except for the plea, of not guilty, neither of them said anything from which it could even remotely be said that they or either of them disclaimed connection with the firm's business. Nothing was easier for Byomsankar than to say in answer to the allegation, made against him that he had nothing to do with the partnership. Ho never said so but only attempted to suggest that there was no positive proof produced of his connection with the firm. I have no hesitation to say that the plea of want of sufficient evidence to establish the connection of this appellant with the partnership business is a specious plea which must be rejected. The position then is that Chandra Bhusan and Byomsankar have been sought to be made liable as partners of the firm of stevedores and Mati Lal Chatterjee as the supervisor in charge of the process or operation of unloading the cargo of salt.

11. There is no dispute that the nature of Mati Lal's duties required his presence at the place at the time the salt was being lifted from the ship's hold; but on behalf of the other two appellants it has been sought to be argued that even if they were interested in the firm's business, their interest would not require them, to be present at the place when the incident occurred. The argument is that being absentees, they could, not possibly be fixed with liability for failure to comply with the Regulations. This contention must also be rejected. The duty or obligation to comply with paragraph 55 is inalienable for every one connected with the process of loading or unloading cargo. The words of paragraph 44 are imperative and a duty is laid on every one connected with the operation. The words are also absolute in their import and appear to make no distinction between persons present or absent from the place of operation. No question of menses arises in a case of this kind. The reason for such a rigorous provision can well be appreciated. The regulations are designed to ensure the safety of the workers quite often employed is hazardous pursuits in course of their employment. In my view, it cannot be said that absentee employers of workers cannot be brought within the mischief of these provisions of the law.

12. It was then argued that it was not competent to the legislature to delegate such wide powers to the Central Government by authorizing them to make regulations providing for the safety of workers and of working places on shore or on ship at which processes are carried on. The contention is that except for laying down the limit of punishment, Sub-section (3) of Section 5 gives an unsheltered right to the Government to determine what acts will be punishable as breaches of the regulations which the Central Government was authorised to make. The Central Government, it is said, was clothed with extensive powers without check or control, to promulgate regulations in aid of the purpose of the Act. In this view the delegation to the Central Government was beyond the competence of the legislature.

13. Though the argument has been presented in an attractive form, it does not carry conviction. It is well-known that tile legislature quite often gives the Government or local authorities power to make bye-laws with the object of carrying a given enactment into operation and effect. In Archibald G. Hodge v. R. (1883) 9 AC 117, the House of Lords observed that such authority was ancillary to legislation and without it, an attempt to provide for varying details and machinery to carry them out might become oppressive. It is obvious that the legislature does not part with powers permanently. If it has reason to think that there has been abuse of the power or even a likelihood of it, it can always step in and withdraw the power. As was observed in the case just cited, the legislature

retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them are matters for each legislature, and not for Courts of law to decide.

14. In the case of R. v. Burah (1878) 3 AC 889 similar observations were made and it was said that exercise of discretion entrusted by the legislature to persons and authorities in whom it places confidence, may sometimes be highly convenient. As far as I can see there is nothing in the Regulations which exceeds the power expressly given to Government to frame Rules or Regulations to give effect to the Act, The contention that the Regulations were not in pursuance of the Act or their promulgation by the Central Government involved delegation of unrestricted power to make laws, must be rejected.

15. Turning to the facts, it seems plain that the three workers Abdul Hakim (P.W. 2), Yousuf Sardar (P.W. 3) and Ram Avatar Singh, (P.W. 4) employed by the appellants for unloading the cargo on the night in question, gave evidence which may in one view be construed as an attempt to exonerate their employers. They stated that the beam had been very tightly secured by its both ends being bound or lashed by wire ropes. One of them suggested that the beam would not even move from its fixed position. They added that the hook or the basket carrying the cargo or the rope attached to it for the purpose of hoisting, struck against the beam which displaced it with the result that the planks on the hatch were removed and four or five of the workers fell down the height. These witnesses being employees of the firm were obviously trying to give a clean bill to the appellants. The partisan character of their evidence cannot be disputed. Still they were prosecution witnesses and the learned Magistrate was right in observing that in spite of everything their evidence must be considered as evidence of men upon whom the prosecution relied for the purpose of proving its case. In my view, even if one took the evidence of these witnesses at their face value that would not exonerate the appellants in any way. Taking this body of evidence at its highest, it seems plain that the beam was not fixed by means of bolts and nuts although there were locking devices at the beam's end. According, to them, the beam was just lashed or bound up with wire ropes. In my judgment a fairly heavy beam cannot possibly be left without being fixed by bolts and nuts to the coming or the stanchion intended for its support. Paragraph 55 of the Regulations clearly provides that the beam o the hatch must be adequately secured to prevent displacement. No one could possibly say with reason that a big beam on which the hatch coverings. Were rested, could be said to have been adequately secured by being merely lashed or bound by wife ropes.

16. I have been, addressed at length on paragraph 55 of the Regulations which is said to be somewhat vaguely worded, and therefore cannot be construed to the detriment of persons accused of its violation. The words 'adequately secured', it has, been argued, cannot be said to imply that the beam invariably required to be fixed by bolts and nuts. Wire ropes are sturdy things and if they were used for the purpose of securing the beam, it cannot be said that that amounted to an infringement of the Rule. It is true, the expression 'adequately secured' has not been, defined. It becomes, therefore, the duty of the Court to construe the words in a manner, consistent with the purpose which the Regulations were designed to achieve. Lashing with, a wire rope might be sufficient in the case of a less heavy thing than a beam on which hatch coverings were rested. It would all depend upon the facts of each case and the true test, in my view, would be the test of reason and common sense. The exigencies might conceivably vary from: case to case and it would require only sound common sense to decide whether the step taken to secure a tiling was adequate so as to meet the requirements o the case, I have, net doubt that a beam could not safely be left loose by being tied with a wire rope. The Inspector's evidence clearly show's that as 3 result of the beam having been lashed with ropes, there was play of the beam which meant that, it was not held fixed and could well be moved this way or that giving the beam what, may be called its play. According to the Inspector even, if it was tightly tied, with wire ropes, the beam would still have its play a few inches this side or that. Some of the worker, witnesses suggested that at the time they commenced the work, the beam; was found tightly secured by being lashed with, wire ropes. But that evidence is of no assistance to the appellants inasmuch as however tightly a beam might be secured by means of ropes, it can never be said that it was adequately secured. As I have indicated, it would all depend upon the nature the thing secured its weight and its mass. In the case of a heavy beam, no amount of tying with ropes even if made of steel, could be held to, adequately secure it.

17. The Inspector's evidence was criticised on the ground that he did not visit the ship until two days after the incident. That might have been unfortunate; but there is no material to suggest that at any time prior to his visit, the beam had been fixed by means of bolts and nuts. It is nobody's case that the beam had at the material time been fixed by means of bolts and nuts. Although there was a locking device which was to be fitted to a corresponding hold in the ship's coming, the Inspector added that he found upon his investigation that the beam bolts were bent and they had gone out of alignment. That may well be the reason why the beam was left in that condition and it was tinkered with by being merely tied with wire ropes. In spite of there having been mechanical locking arrangements, the beam was not fitted to the holes. That would, in my view suffice to establish that the lashing with wire rope was wholly inadequate to keep the beam fixed at its place.

18. There is no suggestion in evidence that even though the beam had been fixed by bolts and nuts, it had accidentally come out. That was nobody's case. Consequently it cannot now be argued that it was a mere accident when the hook of the sling fouled the beam's ends, causing an upward pressure which separated the planks covering the hatch. The case definitely was that the operations commenced and were continued with the beam tied or lashed with wire ropes. Such tying must, in my view, be held to be clear infringement of paragraph 55 of the Regulations.

19. It has been argued that paragraph 15 of the Regulations imposes certain definite responsibility on the owner, master, officer-in-charge or agents of the ship. This paragraph enjoins their compliance with some of the provisions of the Regulations. One of these provisions relates to the maintenance of beams and hatch coverings, and is contained in paragraph 22 which says that the maintenance of hatch coverings and of beams is a direct responsibility of the ship's owner or its master or officer-in-charge. That may be so, but this provision is not in derogation of any other provision and cannot affect the liability imposed by paragraph 55 of the Regulations.

20. I have indicated the appellants stated nothing except to say that they were innocent. They seem to have proceeded on the footing that if die beam was lashed with wire ropes, that would be sufficient compliance with paragraph 55. I have no hesitation to negative such a defence.

21. I hold the prosecution has been able to establish its case. The convictions must, therefore, be affirmed.

22. I have been pressed to consider the question of sentence. There can be no extenuating circumstance as far as the appellant Mati Lall Chatterjee is concerned. He was a responsible employee of the firm and it was under his supervision that the process of unloading of the cargo was being done. It was his inalienable duty to be vigilant. He failed in that duty. The sentence imposed upon him is, in my view, quite justified. The case of the other two appellants, Chandra Bhusan and Byomsankar appears to stand on a slightly different footing. It is true they were the partners of the firm engaged in removing the cargo, but the nature of their duties would not necessarily bring them everyday to the ship where the incident occurred. It may well be that they were not aware of all the conditions under which the work of unloading was being carried on, their ignorance of the actual working conditions can, perhaps, be pleaded in extenuation of their sentence. I think, the ends of justice would be met if I reduce the sentence on each of them to a fine of Rs. 250/- (Rupees two hundred and fifty) only; in default of payment of this reduced fine, they will suffer simple imprisonment for three months each.

23. Subject to modification as to sentences on two of the appellants the appeal is dismissed.


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