- (1.) THIS writ application has been filed for quashing the entire criminal proceeding of complaint case bearing C/2 Case No.2971 of 2007 including the order dated 24.8.2007 passed by the Chief Judicial Magistrate, Jamshedpur whereby and whereunder cognizance of the offence under section 92 of the Factories Act has been taken for violation of the provisions as contained under sections 61, 62, 79, 52, 54, 56, 59,46, 47 of the Factories Act read with Rule 80, 79, 87,88, 67(2), 70 and 71 of the Jharkhand Factories Rules, 1950.
(2.) THE facts giving rise this application are that one Binay Kumar, Factory Inspector along with officers of the Labour Department made a surprise inspection on 28.5.2007 in the factory premises of M/s. Timken India Limited. In course of inspection, inspecting team found 125 contract labourers employed by different contractors as well as 394 permanent labourers engaged in different process of the production. But entries of contract labourers were not found in requisite Form 12 and that the large number of workmen were found working beyond their working hours and that working hours in respect of workmen had not been displayed and that temporary labourers (contract) though were working continuously for years together but were not provided either the leave book nor they are being provided the salary paid annual leave and that attendance register and attendance card of number of workmen were not found and that workmen were not being provided with weekly holidays and that all the facilities were being not provided at the canteen to the workmen and that no rest room or shelter room was found. Thereupon the inspection report was forwarded, vide letter dated 30.5.2007 to the petitioners no.1 and 2 being the occupier and manager of the factory respectively for its compliance. On getting the notice, it was replied by the petitioners, vide its letter dated 5.6.2007 intimating therein that the contractors, who had employed contract labourers, have already been asked to present themselves before the authority and to produce register for annual leave with wages, weekly working hours, weekly off and daily wages register, over time register etc. and even the contractor who has been running canteen has been asked to do needful in terms of provision of the Acts and Rules. However, the reply on being found unsatisfactory was rejected on 8.6.2007. Upon it, the petitioners again intimated that adult workmen register had already been produced by the contractors before the Deputy Labour Commissioner and that working hours had already been displayed with and that contractor has already been asked to produce register for annual leave with wages. When no reply was made, one of the contractors visited the office of the Inspector of Factories on 14.7.2007 for verification of the documents but he was not entertained and, therefore, all the documents were sent through registered post on 17.7.2007. As per the case of the petitioners, the contractor even approached the Deputy Chief Inspector of Factories on 27.7.2007 and got the different registers verified but before that Inspector of Factories, vide its letter dated 8.6.2007 moved before the competent authority for according sanction for prosecution against the petitioners no.1 and 2 for contravention of the provision of the Act and Rules which was accorded, vide letter dated 25.7.2007 (Annexure 11/1) not only against the petitioners no.1 and 2 but even against the petitioner no. 3, who had never been sought to be prosecuted. On getting the sanction order, the prosecution report was submitted on 24.8.2007 whereupon cognizance of the offence under the Factories Act was taken by the Chief Judicial Magistrate, Jamshedpur against the petitioners.
(3.) LEARNED counsel appearing for the petitioners submits that the prosecution has been launched on the premise that the petitioners did not comply the direction given under the show cause notice dated 3.5.2007 but that was not correct as reply had already been made on 5.6.2007 and subsequently, on 10.7.2007 it had been intimated that the documents sought to be produced had already been furnished before the Deputy Labour Commissioner but the reply submitted by the petitioners were never taken into consideration and as such, entire prosecution is bad.;