State of Gujarat vs Jethalal Chelabhai Patel

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

Court: supreme-court

Case Number: Criminal Appeal No. 193 of 1961

Decision Date: 6 December 1963

Coram: A.K. Sarkar, K.N. Wanchoo

In this case the State of Gujarat was the petitioner and Jethalal Chelabhai Patel, the manager of an oil mill, was the respondent. The matter was decided by the Supreme Court of India on 6 December 1963. The judgment was authored by Justice A.K. Sarkar, who sat on the bench together with Justice K.N. Wanchoo. The citation for the decision is 1964 AIR 779 and 1964 SCR (5) 801. The dispute concerned the application of the Factories Act, 1948, specifically sections 21(1)(iv)(c), 92 and 101, which deal with the requirement to safeguard dangerous parts of machinery.

According to the headnote, while a workman was greasing a spur gear wheel of the oil mill, his hand became caught in the moving gear and consequently had to be amputated. At the time of the accident the protective cover that normally shielded the spur gear wheel was absent. The respondent, who acted as the manager of the mill, was prosecuted under section 92 of the Factories Act for failing to comply with the duty imposed by section 21(1)(iv)(c), which requires that every dangerous part of machinery be securely fenced by substantial safeguards. The workman testified that the cover had been removed by the respondent for repair purposes, whereas the respondent contended that the workman himself had taken off the cover. The trial judge could not accept either version and therefore acquitted the respondent, observing that liability could not be imposed when the safeguard had been removed by someone without the manager’s consent or knowledge. The High Court of Gujarat affirmed this acquittal on appeal.

The Supreme Court held two principal points. First, the mere fact that another person removed the safeguard without the occupier’s or manager’s knowledge, consent or connivance does not constitute a defence. When the statute imposes a duty to keep a guard in position while a machine is operating, and the guard is found to be absent, the burden shifts to the occupier to prove that, despite the apparent breach, he is not liable. Second, even if the occupier can establish that a third party removed the fence, he must also demonstrate that he exercised due diligence to ensure that the fence, which the Act makes his responsibility to maintain, remained in position at all times and was not removed.

The appeal was filed as Criminal Appeal No. 193 of 1961, seeking special leave from the judgment and order dated 9 and 10 February 1961 of the Gujarat High Court in Criminal Appeal No. 367 of 1960. Counsel for the appellant, D.R. Prem, K.L. Hathi and R.H. Dhebar, presented the case, while the respondent did not appear before the Court. The judgment was delivered on 6 December 1963 by Justice A.K. Sarkar. The Court noted that the absence of the respondent’s appearance was unfortunate, but recognized that the appellant’s counsel had fairly presented the relevant arguments and authorities from the perspectives of both parties. The Court also recorded that the respondent was the manager of an oil mill, which had the spur gear wheel that was the subject of the incident.

In the case before the Court, a workman employed at an oil mill was injured while greasing a spur gear wheel that was rotating. During the accident the worker’s hand became caught in the gear and had to be amputated. The gear was normally fitted with a cover that was bolted to the base, but at the time of the accident the cover was missing, apparently having been removed earlier. No evidence was offered to establish when the cover was last fixed in place. The manager of the mill, who was the respondent, was prosecuted under section 92 of the Factories Act, 1948 for failing to comply with the requirement of section 21(1)(iv)(c). The relevant portion of that provision stipulated that every dangerous part of any machinery must be securely fenced by safeguards of substantial construction and that those safeguards must remain in position while the machinery is in motion or in use. Section 92 provided that any contravention of the Act by the occupier or manager of a factory constituted an offence punishable with imprisonment or a fine. It was undisputed that a guard had been provided for the spur gear wheel and that the guard was of proper construction. The parties did not dispute that, had the guard been in place at the time of the accident, the respondent could not have been deemed to have committed an offence. However, the guard was absent when the injury occurred. The workman claimed that the respondent had removed the guard for repairs, whereas the respondent asserted that the workman himself had removed it. The trial judge could not accept either version and consequently acquitted the respondent, observing that liability could not be imposed where the cover had been removed without the respondent’s knowledge or consent.

When the matter was appealed, the High Court judges examined a large number of decisions, mainly from English courts applying the English Factories Act and a few from Indian High Courts. From those authorities they derived two principles: first, that although the duty to provide safeguards under section 21(1)(iv)(c) is absolute, it is qualified by a test of foreseeability; and second, that if a safeguard supplied by the employer or manager is rendered ineffective by an unreasonable or perverse act of the workman, the employer or manager bears no liability. The Supreme Court, while respecting the High Court judges, expressed difficulty in seeing how those two principles applied to the facts of the present case. The Court noted that the High Court had not actually based its judgment on those principles, and therefore found it unnecessary to discuss the cited cases or the derived principles further.

In this case the Court observed that the two principles which the High Court had extracted from a large number of earlier decisions were not applied to the facts before the Court and therefore were not relevant to the decision of the present case. The Court further noted that the High Court’s judgment did not rest on either of those principles, and consequently the Court found it unnecessary to refer to the cases cited by the High Court or to discuss the principles that might have been derived from them. The Court affirmed that there was no dispute that the spur‑gear wheel constituted a dangerous machine within the meaning of section 21(1)(iv)(c) of the Indian Factories Act, and that this fact created an obligatory duty to fence the machine securely and to keep the fence in position while the parts of the machinery were in motion or in use. The Court accepted the High Court’s finding that the respondent had provided a guard for the machine, which confirmed beyond doubt that the machine fell within the statutory definition of a dangerous machine. No party contended that the risk arising from an unguarded machine was not foreseeable, and therefore the Court found no issue of unforeseeability to be raised as a defence. The Court proceeded on the same assumption as the High Court that it had not been proved that the workman himself had removed the guard, and the Court adopted that assumption for its own analysis. The Court agreed with the High Court that, in a criminal proceeding, an accused person is not bound to offer any explanation, and that the failure of an explanation to be established does not, by itself, justify a conviction for the offence charged. The Court also accepted the High Court’s observation that section 21(1)(iv)(c) contemplates a default which must be proved by the prosecution. Moreover, the Court considered the High Court’s statement that the statute does not require an occupier or manager to be constantly on the lookout to prosecute every offender who removes a safeguard furnished by him, nor does a failure to do so automatically attract criminal liability. The High Court further observed that the Act does not impose liability on an occupier or manager when a proper safeguard that he provided is removed by an unknown person without his knowledge, consent or connivance. The Court could not accept this view. While the Court agreed that the prosecution must establish the accused’s default before a conviction can be sustained, the Court held that the statutory duty to keep the safeguard in position while the machine is operating creates a default that the prosecution must prove, and that the removal of the guard by an unknown person does not relieve the occupier or manager of liability where the duty to keep the guard in place has not been fulfilled.

The Court explained that section 21(1)(iv)(c) of the Act obliges the occupier or manager not only to provide a secure fence or safeguard around any dangerous part of a machine but also to keep that safeguard in its proper position whenever the machine is in motion or being used. While the wording “shall be securely fenced’’ might be read to imply that the fence must be permanently present, the statute removes any doubt by expressly requiring that the fence remain in place during operation. In the present case, the Court observed that the fence was absent at the time the machine was being operated, a fact that was admitted and therefore required no further proof. The Court considered whether the simple fact that some other person removed the safeguard without the occupier’s knowledge, consent or connivance automatically exonerated the occupier. The Court rejected that proposition, holding that when the statute imposes a duty to keep the guard in position during operation, the burden shifts to the occupier to demonstrate that he was not liable despite the guard’s removal. The Court clarified that it is not necessary to declare that every occupier who had previously installed a proper guard must be held liable if, at a particular moment, the guard is missing. The Court gave a hypothetical example: if a guard were to break down for reasons beyond the occupier’s control and the machine remained unfenced for a short period before the occupier discovered and replaced the guard, liability might not attach in such circumstances. The Court noted that a statute does not require impossibility on the part of a person, but also observed that there was no evidence in this case to show that the occupier had taken any steps to ensure the guard remained in position while the machine was working. Because the burden of proving such a defence rested on the occupier and he offered no evidence, the Court found that he had wholly failed to meet that burden. Consequently, the Court held that the occupier was liable under section 92 of the Act for failing to comply with the requirements of section 21(1)(iv). The Court also referred to section 101, which was cited to support the argument that an occupier’s liability for non‑compliance with the Act is absolute and that the only defence available is that expressly provided in the statute. The Court deemed it unnecessary to discuss that provision further, as the occupier had presented no defence, either under section 101 or any other ground. The sole argument advanced by the occupier was that he was unaware of what had happened to the guard, a contention the Court regarded as an insufficient defence.

In this case, the Court observed that the respondent offered no defence at all. The Court then turned to the relevant provision of the Act for a different purpose. The provision provides that when an occupier or manager of a factory is charged with an offence punishable under the Act, he may cause any other person whom he alleges to be the actual offender to be brought before the Court. The provision further requires that the occupier or manager must prove, to the satisfaction of the Court, two things: first, that he exercised due diligence in enforcing the provisions of the Act; and second, that the other person committed the offence without the occupier’s knowledge, consent or connivance. If both conditions are satisfied, the other person is to be convicted and the occupier or manager is to be discharged. The Court explained that the above provision makes clear that even if the occupier or manager demonstrates that another individual removed the fencing without his knowledge, consent or connivance, such proof alone does not absolve him from liability. He must also demonstrate that he exercised due diligence in enforcing the Act. In the facts before the Court, due diligence meant that the occupier had to ensure that the fence, which the Act required him to keep in place, remained erected and was not removed. The Court found that if the duty to exercise due diligence applied when the occupier could identify the person who removed the fence, the same duty must apply when the occupier cannot identify who removed it. To allow a distinction would defeat the purpose of the Act, which is to protect workmen. Accordingly, the Court could not agree with the conclusions of the High Court or the trial magistrate. Consequently, the Court allowed the appeal, set aside the judgments of the lower courts, and convicted the respondent under section 92 for violating the requirements of section 21(1)(iv)(c). The Court imposed a fine of two hundred rupees on the respondent and directed that, in the event of non‑payment, the respondent would serve one week of simple imprisonment. The appeal was thus allowed.