- (1.) TWO points of law, one relating to procedure and the; other to merits, have been raised in this Rule obtained by the Superintendent and Remembrancer of Lega affairs, Government of West Bengal, and directed against an order dated the 9th February, 1973 passed by Shri a. K. Dutta, Sub-Divisional Judicial magistrate, Chandernagoie, Dist. Hooghly in C. R. Case No. 793 of 1972 under section 92 of the Factories Act, 1948 (Act LXIII of 48 ).
(2.) THE facts leading on to the Rule can be put in a short compass. Shri k. K. Sengupta, Inspector of Factories, serampore filed a petition of complaint before the learned Sub-Divisional judicial Magistrate, Chandranagore on 14. 9. 72 against five accused persons, including the two accused opposite parties, stating infer alia that the complainant is the Inspector of Factories, serampore and filed the petition of complaint in his official capacity; that during his visit to the factory known as ms. Samnuggur Jute Factory Co. Ltd. , north Mill, 26, Grand Trunk Road, p. O. and P. S. Bhadreswar, Drst. Hooghly on the 16th June, 1972, it was ascertained by him that although mare than 250 workers were ordinarily employed in the factory, the drinking water supplied to them the 1st april, 1972 was not cooled by ice or other effective method as required under Section 18 (3) of the Factories act, 1948 read with Rule 35 of the West bengal Factories Rule 1958, prescribed under Sub-Section 4 of Section 18 of the Factories Act, 1948; that the accused Nos. 1-4 Gourilal Meluta, Harilal mehta, Madhavlal Mehta and S. C. Roy are the occupiers and the accused No. 5. R, P. Jha is the Manager of the said factory; that the accused persons; had committed an offence punishable under section 92 of the Factories Act, 1948 for a contravention of Section 18 (3)of the Factories Act 1948 read with Rule 35 of the West Bengal Factories Rules, 1958, prescribed under sub-section 4 of section 18 of the Factories Act, 1948 and accordingly process may be issued against them. The learned Sub-Divisional Judicial Magistrate by his order of the same date issued summons on the accused persons as prayed for. On 19. 12. 72. the next date fixed, three of the co-accused Viz. Gourilal Mehta harilal Mehta and R. P. Jha pleaded guilty through their learned lawyer and the learned Sub-Divisional Judicial "magistrate, accepting the same, convicted them, under Section 92 of the Factories act and sentenced them to pay a fine of Rs. 30/- each i. e. to undergo S. I. for five days each. On 9. 1. 73 an application was filed on behalf of the defence objecting to the maintainability of the prosecution against the present two accused opposite parties on points of law and praying for a recall of the warrant of arrest till the disposal of the same. On hearing the parties, the learned Sub-Divisional Magistrate by his order dated the 9th February, 1973 dropped the proceedings against them and recalled the warrant of arrest. The said order has been impugned and forms the subject-matter of the present rule.
(3.) AN affidavit-in-opposition on be half of the Opposite Party No. 2 and a supplementary affidavit on behalf of both the opposite parties were affirmed on the 30th July, 1973 and the 19th september, 1973 respectively. In paragraph 4 of the affidavit-in-opposition if has been averred that the opposite party No. 2 never was nor is a director of the jute mill referred to viz. the samnuggur Jute Factory Company limited (North mill) and that it is wholly incorrect to say that he ever was a Director thereof. It was further submitted in paragraph 6 that the process was issued against the opposite party No. 2 upon a mistaken view of feet that he was one of the Directors of the jute mills concerned and as such in the interest of justice the proceedings should not be allowed to proceed. In the supplementary affidavit affirmed by the Secretary of Thomas Duff and Co. (India) Ltd. , Agents in India for the Samnuggur Jute Factory Co. Ltd. it was stated in paragraph 4 that there was no change of Director in the Company since 1. 1. 73 and a copy of the return filed with the registrar of Companies in 1973 under section 592 of the Companies Act, 1956, was annexed marked with the letter "a". The names of both the opposite parties do not find place there. It was averred in paragraph 5 that "in the application for registration of grant of renewal of licenses and notice of occupation specified in Section 6 and 7 of the Factories Act, 1948 in respect of the said Company in the year 1971 submitted by the said Thomas Duff and co. (India) Ltd. as Agents in India for and on behalf of the said Company, sri S. C. Eoy was, through in advertence, wrongly shown as Director of the said Thomas Duff and Co. (India) Ltd. " and in paragraph 6 it was stated that "on a. similar application made in january 1973 the name of Sri S. C. Roy who was wrongly shown in the application for 1971 as a Director of thomas Duff and Co. (India) P. Ltd. was duly omitted. Copies of the said applications are annexed here to and collectively marked 'b'. It was ultimately stated in paragraph 7 that "neither Madhavlal Mehta nor S. C. Roy were over a Director of Samnuggur Jute Factory Company Ltd. and while, Madhavlal Mehta was upto 31st july, 1972 a director of the said Thomas Duff and Co. (India) Ltd. , S. C. Roy was never a Director of the said thomas Duff and Co. (India) Ltd. " In view of the materials disclosed as above and the submissions made in this behalf that the opposite party No. 2 never was nor is a Director of any one of the Concerns, Mr. Prasun Chandra ghosh, Advocate, appearing oh behalf of the Petitioner, did not, in his fairness, press the Rule against him and it was accordingly discharged against the said Opposite Party No. 2 by an order dated the 21st September, 1973. The Rule was thereafter directed to proceed against the other opposite party, Madhavlal Mehta only.;