SARKAR, J. - (1.) This appeal raises a question under the Factories Act, 1948. It was unfortunate that there was no appearance on behalf of the respondent but Mr. Prem appearing in support of the appeal has placed the matter very fairly before us with all the relevant reported decisions from the point of view of both the appellant and the respondent. We are much beholden to him for this assistance.
(2.) The respondent is the Manager of an oil mill. The mill had a spur gear wheel. A workman of the mill while greasing the spur gear wheel which was then in motion had one of his hands caught in it. Eventually that hand had to be amputated. It appeared 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. There is no evidence to show when it was last in position.
(3.) The respondent was prosecuted under S. 92 of the Act for having failed to comply with S. 21(1)(iv)(c) in it. The relevant part of this Section is as follows: "S. 21. (1) In every factory the following namely,- ********** ********** (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- ********** (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 machinery they are fencing are in motion or in use:" Section 92 of the Act provides as follows: "Section 92. Save as is otherwise expressly provided this Act.... if in, or in respect of, any factory there is any contravention of any of the provisions of this Act..... the occupier or manager of the factory shall be guilty of an offence and punishable with imprisonment....or with fine......" There is no dispute that a guard had been put over the spur gear wheel and it was a proper guard. It is not contended that if it had been there, then the respondent could be said to have committed any offence, but it was not there. The workman said that it had been removed by the respondent for repairs while the case of the respondent was that the workman had himself removed it. The learned trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone without his consent or knowledge.;