Case Note & Summary
The appeal arose from a prosecution of an occupier of a factory under Section 36(3) and (4) of the Indian Factories Act, 1948, following the death of five workers. The factory contained a pit in which dangerous fumes were likely to be present. The pit was securely covered and no one was expected to go down for normal work as it was operated by gadgets fixed nearby above ground. On the day of the incident, something went wrong with the machinery inside the pit. Five workers entered the pit without wearing suitable breathing apparatus and without a belt securely attached to a rope the free end of which could be held by a person standing outside. All five were overcome by poisonous gases and died. Investigation revealed that suitable breathing apparatus, reviving apparatus, belts, and ropes were not available anywhere in the factory and were not kept for ready use near the pit. The appellant, as occupier, was charged with failure to comply with the safety provisions. The trial court acquitted the appellant, holding that no express or implied permission had been given to the workmen to enter the pit, thus no offence under Section 36(3) was made out. It further ruled that since no such permission existed, the duty under Section 36(4) to keep breathing apparatus near the pit did not arise. On appeal by the State, the High Court set aside the acquittal and directed the trial court to decide the case in light of its interpretation. The High Court held that the appellant's failure to prevent entry meant he must in law be deemed to have permitted entry, thereby breaching Section 36(3). It also held that Section 36(4) required breathing apparatus to be immediately available at the pit at all times, and providing such apparatus only after knowing someone was about to enter was insufficient. The appellant then appealed to the Supreme Court. The Supreme Court upheld the High Court's interpretation, confirming that the occupier's duty to prevent entry into confined spaces with dangerous fumes is absolute. The term 'permitted to enter' in Section 36(3) includes constructive permission by failure to take preventive measures. The occupier's liability does not depend on express permission. Further, under Section 36(4), the occupier must ensure that suitable breathing apparatus, reviving apparatus, belts, and ropes are kept for ready use near such confined spaces at all times, irrespective of whether permission has been given. The Court dismissed the appeal, affirming the High Court's direction for retrial in light of this interpretation.
Headnote
A) Factories Act, 1948 - Duty of Occupier Regarding Dangerous Fumes - Meaning of 'Permitted to Enter' under Section 36(3) - The occupier must ensure that no person enters a confined space where dangerous fumes are likely to be present without taking prescribed precautions. Failure to prevent entry amounts to permitting entry, even in the absence of express permission. Held: The occupier's failure to prevent workers from entering the pit constituted a breach of Section 36(3), and the occupier was liable for the deaths. (Not mentioned) B) Factories Act, 1948 - Safety Requirements for Confined Spaces - Duty to Provide Breathing Apparatus under Section 36(4) - Breathing apparatus, reviving apparatus, belts and ropes must be kept for ready use near the confined space at all times, not just when entry is anticipated. Held: The occupier could not rely on providing such apparatus only after learning that someone was about to enter; immediate availability at the pit was mandatory. (Not mentioned)
Issue of Consideration
Interpretation of Section 36(3) and (4) of the Indian Factories Act, 1948: whether the occupier is liable when workers entered a pit with dangerous fumes without permission and without proper safety equipment, and what constitutes 'permitted to enter'
Final Decision
The Supreme Court upheld the High Court's interpretation, holding that the occupier must be considered to have permitted entry if he fails to prevent it, and that breathing apparatus etc. must be immediately available near the pit at all times. The appeal was dismissed and the case sent back to the trial court for disposal in light of this interpretation.
Law Points
- Occupier must ensure no person enters confined space with dangerous fumes without prescribed precautions
- Failure to prevent entry amounts to 'permitted to enter' under Section 36(3)
- Breathing apparatus
- reviving apparatus
- belts and ropes must be kept for ready use near the confined space at all times under Section 36(4)
- Mere providing such apparatus after learning of intended entry is not sufficient compliance
