LexSTATE OF GUJARAT versus JETHALAL CHELABHAI PATEL
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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5S.C.R.
SUPREME COURT REPORTS
. STATE OF GUJARAT
v.
JETHALAL CHELABHAI PATEL
801
(A.K. SARKAR AND K.N. WANCHOO, JJ.)
Factories Act, 1948 (63 of 1948), ss. 2l{l)(iv)(c), 92, 101-
Dangerous Machine-Inquiry-Absence of fence-Removal by
somebody else, if good defence.
While greasing the spur gear wheel of an oil mill, one of the
hands of a workman got caught and had to be amputated. It appeared
that at the time of the accident the cover of the spur gear wheel
was not there. The respondent, who is the. manager of the mill
was prosecuted under s. 92 of the Factories Act for having failed to
comply with s. 21(1) (iv) (c) of the Act. The workman said that
the cover had been removed by the respondent for repairs, while
the case of the respondent was that the workman had himself
removed it. The 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. On appeal, the High Court affirmed the acquittal.
Held: (i) The mere fact that someone else had removed the
safeguard without the knowledge, consent or connivance of the
occupier or manager does not provide a defence to him. When
the statute says that it will be his duty to keep a guard in position
while the machine is working and when it appears that he has
not done so, it will be for him to establish that notwithstanding
this he was not liable.
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(ii) Even where the occupier or manager could establish that
somebody else had removed the fence, he has further to prove
that he exercised due diligence. to see that the fence, which under
the Act was his duty to see was kept in position all along, had not
been removed.
CRIMINAL APPELLATE JURISDICTION:
Criminal
Appeal No. 193 of 1961.
Appeal by special leave from the judgment and
order dated February 9 and 10, 1961, of the Gujarat
High Court in Criminal Appeal No. 367 of 1960.
D.R. Prem, K.L. Hathi and R.H. Dhebar. for the
appellant.
·
The respondent did not appear.
December 6, 1963.
The Judgment of the Court
was delivered by
I/SCI/64-51
1963
December 6
802
SUPREME COURT REPORTS
[1964]
~
1963
SARKAR J.-This appeal raises a question under
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the Factories Act, 1948. It was unfortunate that
State of Gujarat there was no appearance on behalf of the respondent
v.
but Mr. Prem appearing in support of the appeal has
Jethalal
placed the matter very fairly before us with all the
Chelabhai Patel relevant reported decisions from the point of view
of both the appellant and the respondent. We are
Sarkar J.
much beholden to him for this assistance.
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.
The respondent was prosecuted under s. 92 of
the Act for having failed to comply with s. 21 (I)
(iv) (c). The relevant part of this section is as
follows:
S. 21.
(J) In every factory the following name-
ly,-
(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 substan-
tial 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:
f
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5 S.C.R.
SUPREME COURT REPORTS
803
S. 92. Save as is otherwise expressly provided
1963
in this Act. ....... if in, or in respect of, any
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factory there is any contravention of any of the State of Gujarat
provisions of this Act. ...... the occupier or
v.
manager of the factory shall be guilty of an offence
Jethalal
and punishable with imprisonment ........... , Chelabhai Patel
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 beExcerpt shown. Read the full judgment & AI analysis in Lexace.