Chinubhai Haridas vs The State of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 193 of 1957

Decision Date: 04/09/1959

Coram: K.N. Wanchoo, Syed Jaffer Imam

In this case the petitioner was Chinubhai Haridas and the respondent was the State of Bombay. The matter was decided on 4 September 1959 by a bench of the Supreme Court of India consisting of K.N. Wanchoo and Syed Jaffer Imam. The judgment is reported in 1960 AIR 37 and in the Supreme Court Reporter at 1960 SCR (1) 654. The dispute concerned the interpretation of sections 36(3) and 36(4) of the Indian Factories Act, 1948 (LXVIII of 1948) relating to the duty of an occupier to prevent dangerous fumes and to provide breathing apparatus.

The petitioner was the occupier of a factory that contained a pit in which dangerous fumes were likely to be present. The pit was securely covered and enclosed so that normal work was performed by machinery fixed above ground, and no worker was expected to descend into the pit during ordinary operations. An accident occurred when the machinery inside the pit malfunctioned. Five workers entered the pit without wearing suitable breathing apparatus and without a safety belt that was securely attached to a rope whose free end could be held by a person standing outside. All five workers were overcome by poisonous gases and died. The investigation revealed that the factory did not possess any suitable breathing apparatus, reviving apparatus, safety belts or ropes, and none of these items were kept near the pit for ready use.

The petitioner was subsequently prosecuted as the occupier of the factory for alleged breach of sections 36(3) and 36(4) of the Indian Factories Act, 1948. Section 36(3) imposes a duty on the occupier to prevent a person from entering a place where dangerous fumes may exist unless permission is expressly or impliedly given. Section 36(4) requires the occupier to provide breathing apparatus, reviving apparatus, belts and ropes at such places and to keep them available for use.

The trial court held that no offence under section 36(3) could be established because it was not proved that the petitioner had given any express or implied permission to the workers to enter the pit. Accordingly, the court concluded that the condition of “permitted to enter” was not satisfied. Regarding section 36(4), the trial court ruled that, since no permission had been given, there was no requirement to keep breathing apparatus or related safety equipment at the pit or elsewhere in the factory. On this basis the trial court acquitted the petitioner of both charges.

The State appealed the acquittal. The Bombay High Court set aside the trial court’s judgment and directed the trial court to determine the case in accordance with the High Court’s interpretation of the statutory provisions. The High Court held that the petitioner, having failed to prevent the workers from entering the pit, must be deemed to have permitted their entry and therefore violated section 36(3). The High Court also held that compliance with section 36(4) required that breathing apparatus and other safety equipment be immediately available at the pit at all times, and that it was insufficient to provide such equipment only after learning that a person was about to enter the pit.

The Supreme Court examined the meaning of “permitted to enter” under section 36(3). It held that the provision does not impose an absolute duty on the occupier to prevent entry into the pit. The mere fact that a person entered the pit did not, by itself, prove that he had been “permitted to enter”. The Court explained that the primary duty rested on the worker not to enter the pit, although the occupier could also be liable if permission, whether express or implied, could be inferred from the circumstances of the case.

The Court explained that the provision of the Act required the worker himself to refrain from entering the pit, and that this was the primary duty imposed by the statute. However, the occupier could also be held liable if the circumstances of the case allowed an inference that the occupier had given permission for the entry, whether that permission was expressed directly or implied from the facts. The Court further held that subsection 36(4) imposed an absolute obligation on the occupier to ensure that breathing apparatus and related safety equipment were constantly available in the factory, that such equipment was subject to regular inspection and certification of fitness for use, and that a sufficient number of persons were trained in its operation. The Court clarified that there was no requirement to keep the apparatus at the pit at every moment; the duty to have it at the pit arose only when a person was about to enter the pit with the occupier’s permission. The judgment was rendered in the criminal appellate jurisdiction under Criminal Appeal No. 193 of 1957, arising on special leave from the Bombay High Court’s order dated August 1, 1957, which itself stemmed from the High Court’s decision in Criminal Appeal No. 365 of 1957. That decision was based on the judgment and order of the Joint Civil Judge, Junior Division, and Judicial Magistrate First Class, Broach, dated November 28, 1956, in Summary Case No. 57 of 1956. Counsel for the appellant and counsel for the respondent were addressed in the proceedings. The appeal was decided on September 4, 1959, with the judgment delivered by Justice Wanchoo. The Court noted that the appeal raised the issue of interpreting subsections (3) and (4) of section 36 of the Factories Act, 1948 (hereinafter “the Act”). It set out the essential facts: the appellant was the occupier of Gopal Mills Co. Ltd., Broach, a factory defined by the Act, which contained a pit where dangerous fumes could accumulate. The pit was securely covered in compliance with section 33(1) of the Act, and normal factory work did not require anyone to descend into the pit because the work was carried out by machinery situated above ground. On 4 July 1955, the machinery inside the pit malfunctioned. Fakirji Dhanjishaw, who supervised the workers in the purification plant connected to the pit, was present when the accident occurred at approximately 9:30 a.m. on that day. When the machinery failed, a labourer named Melia Dadla was instructed to descend into the pit to attend to the problem. He entered without wearing appropriate breathing apparatus or a safety belt attached to a rope whose free end should have been held by a person outside the confined space, and he subsequently succumbed to poisonous gases. The Court recorded that following this incident, several other workers also entered the pit without protective equipment and died, leading to an investigation that revealed the absence of proper breathing apparatus, reviving equipment, belts and ropes in the factory and the lack of any ready‑to‑use safety provisions near the confined space. Consequently, the occupier was prosecuted for contravening sections 36(3) and 36(4) of the Act.

In the incident, after the first worker entered the pit without any breathing apparatus, several other men also descended into the confined space without protective equipment, and each of them was overcome by poisonous gases and died in succession. The record does not specify exactly when the senior officials of the mill learned of the tragedy. Nonetheless, it appears that after the five deaths occurred, the Superintendent of the Municipal Fire Brigade was summoned, equipped with breathing apparatus and other rescue equipment, and he entered the pit in an attempt to rescue the victims; however, he too was overcome by the fumes and lost consciousness. The factory doctor together with other medical practitioners also arrived at the scene, but they were unable to revive any of the five persons who had already died. The incident was subsequently reported to the Inspector of Factories, who conducted an investigation. His inquiry revealed that the factory did not possess any suitable breathing apparatus, reviving devices, safety belts, or ropes, and that none of these items had been kept ready for immediate use near the confined space.

As a result of these findings, the occupier of the factory was prosecuted for violating sections 36(3) and 36(4) of the Factories Act. The occupier invoked section 101 of the Act and lodged a complaint against the manager, identified as S. D. Vashistha, and the engineer, identified as H. P. Tripathi. Because of this complaint, the magistrate first had to determine whether the alleged offence had been proved. If the offence was proved, the magistrate would then need to decide whether the occupier could be exempted from liability by demonstrating, to the magistrate’s satisfaction, that he had exercised due diligence in enforcing the provisions of the Act and that the manager and the engineer had committed the breach without his knowledge, consent, or connivance.

To resolve the question of whether an offence had occurred, the magistrate examined the meaning of subsections (3) and (4) of section 36. He concluded that no offence under section 36(3) could be established because the prosecution had failed to show that any permission—whether express or implied—had been given to Fakirji Dhanjishaw or any other person to enter the pit. He further held that no offence under section 36(4) had been made out because, in his view, the absence of any permission under subsection (3) meant that the occupier was not required to keep breathing apparatus or other safety equipment near the pit or elsewhere in the factory. Consequently, the magistrate found that no offence had been committed and acquitted the occupier, the manager, and the engineer.

The State of Bombay appealed this acquittal before the High Court, challenging only the conviction of the occupier. The High Court rejected the magistrate’s interpretation of subsections (3) and (4) of section 36. It held that it is not necessary for a worker to obtain explicit permission or for the occupier to give an explicit order for the provisions of subsection (3) to apply. The Court reasoned that if the occupier or manager acquiesces to the entry, permits the entry, or even fails to prevent it, the law treats this as permission, thereby attracting the liability under subsection (3).

The High Court explained that whenever a manager or occupier allows a worker to go into a confined space, the manager is considered to have permitted that entry. The Court said that even if the manager merely turns a blind eye to the entry, or simply fails to stop the entry, the legal effect is the same – the manager has permitted the entry. The Court then described the purpose of the legislation as a welfare measure that obliges an employer to adopt precautionary steps to protect the lives of all workers, whether they are careful or careless, when they are working inside the factory premises. On that basis, the Court concluded that the appellant had not taken all reasonable measures to stop the workers from entering the pit when the machinery malfunctioned. Because the appellant failed to prevent that entry, the Court held that he was, in law, to be deemed as having permitted the entry and therefore had breached sub‑section (3) of section 36. Regarding sub‑section (4), the High Court observed that it was not enough to supply breathing apparatus only after learning that a person might enter the confined space. The Court required that such apparatus be kept ready for immediate use and be placed close to the confined space at all times, not merely for those who might enter with permission but also for anyone who might enter without permission. Consequently, the High Court set aside the acquittal of the appellant, ordered that the appellant’s complaint against Vashistha and Tripathi be first decided by the magistrate—effectively overturning the acquittals of Vashistha and Tripathi—and then instructed the magistrate to decide the case against the appellant in accordance with the legal principles articulated. After the High Court’s decision, an application for a certificate enabling the appellant to appeal to this Court was rejected. The appellant subsequently applied for special leave to appeal, which was granted, bringing the matter before this Court. The Court then quoted the relevant portion of section 36, which provides that no person shall enter or be permitted to enter any confined space until all practicable measures have been taken to remove dangerous fumes and either a written certificate from a competent person declares the space safe, or the worker wears suitable breathing apparatus and is secured by a belt attached to a rope held by a person outside the space. Sub‑section (4) further mandates that suitable breathing apparatus, reviving apparatus, belts and ropes be kept ready for instant use beside any such confined space.

All breathing and rescue equipment mentioned in the provision must be inspected at regular intervals and must receive a certificate from a competent person confirming that the equipment is safe for use; additionally, each factory must ensure that a sufficient number of its employees are taught and regularly practice the proper use of such equipment as well as the techniques for restoring respiration.

Turning first to sub‑section (3), the Court needed to decide what the phrase “be permitted to enter” actually meant. The State, when appearing before the High Court, argued that these words imposed an absolute obligation on the occupier to stop any person from entering a pit or similar confined space described in sub‑section (1) of section 36, and the High Court appeared to accept that view. Counsel for the appellant, however, contended that within the context of the provision the occupier’s duty was not absolute and that some form of permission—whether expressly given or implied—must exist before the occupier could be held liable for a person’s entry into the pit. In other words, the appellant submitted that the Court should, based on the facts and circumstances of each case, determine whether the occupier had granted either explicit or implicit permission to the person who entered the pit.

Mr Umrigar, appearing for the State of Bombay, argued before this Court that the appellant’s construction would allow the occupier to evade responsibility. He maintained that the provision places the burden on the employer to demonstrate that the worker’s entry was contrary to the occupier’s instructions. He even suggested that, if a worker entered the pit with the intention of committing suicide, it would still be the occupier’s burden to prove that the entry was against his instructions and that he had taken every possible step to prevent it.

Mr Umrigar also referred the Court to other sections of the Factories Act where similar wording occurs, namely sections 51, 52, 54, 60, 64, 67, 68 and 71. The Court considered it unnecessary to examine those sections in detail but pointed out a crucial distinction: those provisions do not forbid the worker from entering any place and they place the entire duty on the employer, whereas section 36(3) expressly prohibits the worker from entering the pit or similar confined space. Consequently, section 36(3) must be read in light of its own language, which begins by forbidding any person from entering such a pit.

The primary prohibition therefore falls on the worker and any other person who might attempt to enter the confined space, and the legal effect of this prohibition is carried out through section 97 of the Act. Sub‑section (1) of section 97 provides that if a worker employed in a factory breaches any provision of the Act that imposes a duty or liability on workers, that worker is deemed to have contravened the provision.

According to the provision, a worker who violates the duty specified in sub‑section (1) shall be punishable with a fine. Sub‑section (2) of the same section then states that if a worker is convicted under sub‑section (1), the occupier or manager of the factory shall not be deemed guilty of an offence for that same contravention unless it is proved that the occupier or manager failed to take all reasonable measures to prevent it. When s. 36(a) is read together with s. 97, it becomes evident that the prohibition on a worker entering any such pit or similar place is absolute; consequently, any worker who enters such a pit is guilty under s. 97(1). In the present case, if the five workers who died had survived, each of them would have been guilty under s. 97(1) for contravening s. 36(3) by entering the pit. At that point, s. 97(2) would be triggered, and the onus would shift to the prosecution to prove that the occupier or manager had failed to adopt all reasonable steps to prevent the entry. Thus, the burden of proof rests on the prosecution to demonstrate that the occupier or manager did not take all reasonable preventive measures, and not on the occupier or manager to prove that he had taken such measures. The Court therefore must examine the facts and circumstances of each case to determine whether the prosecution has satisfied that burden. In this context, the Court needed to interpret the phrase “be permitted to enter” that appears in s. 36(3). The Court considered that, in the circumstances, those words did not impose an absolute duty on the employer to prevent entry, and the mere fact that a person entered a pit would not by itself establish that he had been permitted to do so. The Court must investigate the surrounding facts to decide whether the person who entered the pit did so with permission, because mere entry does not automatically imply express or implied permission. The magistrate appeared to think that a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or manager was required, although he did not express this precisely. The Court held that such a positive act is not necessary; instead, the inquiry should be whether, based on the facts and circumstances, it is reasonable to infer that the entry was made with permission, either express or implied. The High Court, with due respect, was also observed to have gone too far in asserting that the duty rested solely on the employer, a view that the Court found to be an over‑extension of the statutory language.

The Court observed that the employer was required to take every precautionary measure to safeguard the lives of his workers, whether the workers acted prudently, imprudently, rashly or carefully, against any possible danger while they were working on the premises of the factory. The Court explained that this language would suggest an absolute duty imposed on the employer to prevent a person’s entry into a hazardous area, irrespective of any considerations that might arise from the particular facts and circumstances of a case. In the Court’s view, however, the proper construction of section 36(3) placed the primary duty on the worker or on any other person who prohibited his entry into a pit or similar confined space. At the same time, the occupier was also liable if, on the basis of the facts and circumstances, the occupier’s permission for the entry—whether express or implied—could be inferred; but the Court stressed that such permission could not be inferred merely from the fact of the entry itself. The Court noted that the High Court had remanded the matter to the magistrate for a retrial, and that in the retrial the magistrate would have to consider the occupier’s liability in light of the observations made by the Court on the construction of section 36(3). Turning to section 36(4), the Court explained that this provision consisted of two distinct parts. The first part required that suitable breathing apparatus, reviving apparatus, belts and ropes be kept ready for instant use beside any confined space in a factory whenever a person entered such a space. The Court interpreted this to mean that if, for any reason, a person had to enter a confined space, the necessary apparatus must be positioned ready for immediate use next to that space. The duty to keep the apparatus ready arose only when a person was actually entering the confined space, and such entry would ordinarily be with the permission of the occupier or manager. The Court rejected the view that subsection (4) demanded that the apparatus be always kept ready near the confined space regardless of any occasion for entry. Rather, the necessity of having the apparatus ready near the space arose only when someone was about to enter, and that entry would be with the employer’s permission. The second part of section 36(4) required that all such apparatus be periodically examined and certified by a competent person as fit for use, and that a sufficient number of workers in every factory be trained and practiced in the use of the apparatus and in methods of restoring respiration. From this, the Court concluded that the apparatus must always be available somewhere in the factory, although it need not be positioned next to the confined space until someone is about to enter it. The Court further observed that periodic examination and training could not be carried out unless the apparatus was continuously available in the factory. Accordingly, the Court held that the duty imposed by subsection (4) was absolute, at least with respect to the first part of the provision, which imposed a duty to keep the apparatus ready for instant use when a person was about to enter a confined space with the occupier’s permission.

The Court explained that the obligation to keep the rescue apparatus ready for immediate use near a confined space arises the moment a person is about to enter that space, and such entry must be with the occupier’s permission. Regarding the second requirement of the provision, the Court held that the occupier must ensure that the apparatus is constantly present in the factory, that it is subjected to periodic examination by a competent person, that it is certified as fit for use, and that a sufficient number of employees are regularly trained in its operation and in the method of restoring respiration. The Court observed that the magistrate’s interpretation of the statutory section was incorrect, whereas the High Court’s interpretation was substantially correct, except for the unnecessary requirement that the apparatus be kept continuously beside the confined space. The High Court had ordered a retrial concerning the alleged breach of sub‑section four, and the Court directed that the magistrate conducting the new trial must apply the construction of the sub‑section set out in this judgment. The Court expressly refrained from commenting on the factual matrix of the present case because a fresh trial will be conducted, and it consequently left it to the magistrate to examine all relevant facts and circumstances before reaching a determination. Finally, the Court dismissed the appeal, concluding that the appeal was to be rejected.