- (1.)THESE Petitions have been filed seeking to quash the proceedings pending against the petitioners herein in S.T.C.Nos.45 & 44 of 2005 respectively, on the file of the Chief Judicial Magistrate, Thiruchirapalli.
(2.)THE petitioners/accused are Manager and occupier respectively of the Dalmia Cement (Bharat) Limited, Dalmiapuram, Kallakudi, Tiruchirappalli District. THE complaint has been taken on file for offences punishable under Sections 41 and 112 of the Factories Act and Rules 61 """D, 61 """E & 61 """F of the Tamil Nadu Factories Rules and it is pending enquiry before the learned Chief Judicial Magistrate, Thiruchirappalli.
The case of the complainant/respondent is that on 28.5.2005 at about 11.00 a.m. contract workers have undertaken an expansion project for construction of Additive Transports Conveyor and were involved in construction eastern side load bearing beam of the base slab. There was obstruction in the compressor of the ready mix concrete pipe. For the purpose of clearing the same, the workers induced strong whippings, which has resulted in the disturbance and collapse of base slab with load bearing beam. On account of that 13 workers died on the spot and 28 workers sustained injuries, which has resulted in the filing of the above case against the petitioners.

The learned counsel for the petitioners submits hat the entire work has been entrusted to contract labourers and those contractors are reputed experts on the job. The deceased and injured are workers of the contractors, employed by them; that since the work was entrusted to the contractors, whatever negligence committed by the workers of the contractors, it cannot be attributed to the Manager and Occupier of the Factory. If at all any allegation to be levelled, it has to be stated only against the contractors; that the petitioners do not have any control ever the workers of the contractors and the method of the work done by them; that the complainant at the most may have to take reasonable care for the safety or the workers. The general duties of the Occupier have been listed under Sections 7"""A and 7"""B of the Factories Act; that when the contract labours are under total control of the Contractors, it is the duty of the Contractors to take care of the health, safety and welfare of the workers. Any negligence committed by them cannot be attributed to the Occupier & Manager of the factory. To substantiate the contentions made, the learned counsel for the petitioners relied on the following decision. In Public Prosecutor v. Pitchaiah Moopanar, 1969 LW (Crl.) 158, it has been held as follows:

"It is not the case of the prosecution that the respondent himself constructed the building. It is not disputed that he sought the assistance of the masons and the masons constructed the building. If the masons had not done the work properly and if they had been negligent in not mixing the lime and mortor in proper proportions, the respondent could not be liable for the negligence of those persons who actually constructed the building, who are supposed to be skilled. The respondent is a lay man. He therefore, cannot be held liable for the negligence of the persons who actually constructed the building, which negligence is the causus causans for the collapse of the building."

(3.)IN State v. Shri Krishna Pd., AIR 1954 Alla. 44 (Vol.41, C.N.33), it has been held as follows: "Only such persons can be classified as workers of a factory who are either directly or indirectly or through some agency, employed for doing the work of any manufacturing process or cleaning, etc. with which the factory is concerned. It does not contemplate the case of a person who comes and that too without the knowledge of the factory owner or without his intervention, either directly or indirectly, and does some work on the premises of the factory. No presumption can be raised that the persons are the workers of the factory from the mere fact that they are found working on the portion of the premises of the factory." IN S. Palaniappa Mudalier v Additional First Class Magistrate, Kulitalai and others, 1958 (2) MLJ 346, he relied on the following passages:
"The employment referred to in Section 2(1) of the Factories Act is in connection with a manufacturing process that is carried on in the factory which processes normally call for a large measure of co"""ordination between various sections inside a factory and between various individuals even inside the same, Section."

The learned counsel for the petitioners also relied on the judgment in Kanpur Suraksha Karamchari Union v. U.O.L, 1988 (4) SCC 478, wherein it has been held as follows:

"""6. """ """We may, however, add that in the case of a canteen run by a contractor or a co"""operative society or some other body the position may be different. But even then there has to be a Managing Committee, if such a canteen is treated as a canteen established for purposes of satisfying the requirements of Section 46 of the Act. Even in this case the contractor or the co"""operative society or some other body will be the employer but not the Managing Committee." In a judgment in Shankar Balaji v. State of Maharashtra, AIR 1962 SC 517 (V 49 C 79), he relied on the following passages: "There was no agreement or contract of service between the appellant and P. P was not bound to attend the factory for the work for any hours of work or for any fixed period." By relying on the judgment in Nathulal v. State of M.P., AIR 1966 SC 43 (V 53 C 12), the learned counsel for the petitioner contended that mens rea is essential ingredient of criminal offence unless excluded by statute. The learned counsel for the petitioners contented that therefore the provision of the Factories Act will not be attracted against the petitioners, and prayed to quash the proceedings.