PENALITIES AND PROCEDURE UNDER FACTORIES ACT 1948:-

The Factory Act, 1948 was enacted for betterment of condition of workmen in factories. Yet some employers have still not applied the prescribed guidelines. Hence the act prescribes fines and imprisonment if the employers fail to apply factory act in true spirit. Section 92 – 106 provide for Penalties and Procedure along with procedural matters. The recent Amendments have substantially increased these:-

Section Heading Content

92 General penalty for offences 1. Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO TWO YEARS OR WITH FINE WHICH MAY EXTEND TO ONE LAKH RUPEES OR WITH BOTH, AND IF THE CONTRAVENTION IS CONTINUED AFTER CONVICTION, WITH A FURTHER FINE WHICH MAY EXTEND TO ONE THOUSAND RUPEES FOR EACH DAY on which the contravention is so continued: 2. Provided that where contravention of any of the provisions of Chapter IV (DEALING WITH PROVISION RELATING TO SAFETY) or any rule made thereunder or under section 87 (DEALING WITH DANGEROUS OPERATIONS) has RESULTED IN AN ACCIDENT CAUSING DEATH OR SERIOUS BODILY INJURY, THE FINE SHALL NOT BE LESS THAN 5[TWENTY-FIVE THOUSAND RUPEES] IN THE CASE OF AN ACCIDENT CAUSING DEATH, AND 6[FIVE THOUSAND RUPEES] IN THE CASE OF AN ACCIDENT CAUSING SERIOUS BODILY INJURY. 3. Explanation.—In this section and in section 94 “serious bodily injury” means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.]

93 Liability of owner of premises in certain circumstances (1) Where in any premises separate buildings are leased to different occupiers for use as separate factories , THE OWNER OF THE PREMISES SHALL BE RESPONSIBLE for the provision and maintenance of common facilities and services, such as approach roads, drainage, water supply, lighting and sanitation. (2) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of sub-section (1). (3) Where is any premises, independent or self-contained, floors or flats are leased to different occupiers for use as separate factories, THE OWNER OF THE PREMISES SHALL BE LIABLE AS IF HE WERE THE OCCUPIER OR MANAGER OF A FACTORY, FOR ANY CONTRAVENTION of the provisions of this Act in respect of— (i) latrines, urinals and washing facilities in so far as the maintenance of the common supply of water for these purposes is concerned; (ii) fencing of machinery and plant belonging to the owner and not specifically entrusted to the custody or user of an occupier; (iii) safe means of access to the floors or flats and maintenance and cleanliness of staircases and common passages; (iv) precautions in case of fire; (v) maintenance of hoists and lifts; and (vi) maintenance of any other common facilities provided in the premises. (4) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out the provisions of sub-section (3). (5) The provisions of sub-section (3) relating to the liability of the owner shall apply where in any premises independent rooms with common latrines, urinals and washing facilities are leased to different occupiers for use as separate factories: Provided that the owner shall be responsible also for complying with the requirements relating to the provision and maintenance of latrines, urinals and washing facilities. (6) The Chief Inspector shall have, subject to the control of the State Government, the power to issue orders to the owner of the premises referred to in sub-section (5) in respect of the carrying out of the provisions of section 46 or section 48. (7) Where in any premises portions of a room or a shed are leased to different occupiers for use as separate factories, the owner of the premises shall be liable for any contravention of the provisions of— (i) Chapter III, except sections 14 and 15; (ii) Chapter IV, except sections 22, 23, 27, 34, 35 and 36: Provided that in respect of the provisions of sections 21, 24 and 32 the owner’s liability shall be only in so far as such provisions relate to things under his control: Provided further that the occupier shall be responsible for complying with the provisions of Chapter IV in respect of plant and machinery belonging to or supplied by him; (iii) section 42. (8) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out the provisions of sub-section (7). (9) In respect of sub-sections (5) and (7), while computing for the purposes of any of the provisions of this Act the total number of workers employed, the whole of the premises shall be deemed to be a single factory.

94 Enhanced penalty after previous conviction 1. If any person who has been convicted of any offence punishable under section 92 is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to THREE YEARS OR WITH FINE WHICH SHALL NOT BE LESS THAN TEN THOUSAND RUPEES BUT WHICH MAY EXTEND TO TWO LAKH RUPEES OR WITH BOTH : 2. Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a fine of LESS THAN TEN THOUSAND RUPEES. 3. Provided further that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine SHALL NOT BE LESS THAN THIRTY-FIVE THOUSAND RUPEES IN THE CASE OF AN ACCIDENT CAUSING DEATH AND TEN THOUSAND RUPEES IN THE CASE OF AN ACCIDENT CAUSING SERIOUS BODILY INJURY . 4. For the purposes of sub-section (1) no cognizance shall be taken of any conviction made more than two years before the commission of the offence for which the person is subsequently being convicted.

95 Penalty for obstructing Inspector 1. Whoever wilfully obstructs an Inspector in the exercise of any power conferred on him by or under this Act, or fails to produce on demand by an Inspector any registers or other documents in his custody kept in pursuance of this Act or of any rules made thereunder, or conceals or prevents any worker in a factory from appearing before, or being examined by, an Inspector, SHALL BE PUNISHABLE WITH IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO SIX MONTHS OR WITH FINE WHICH MAY EXTEND TO TEN THOUSAND RUPEE OR WITH BOTH .

96 A Penalty for contravention of the provisions of sections 41B, 41C and 41H 1. Whoever fails to comply with or contravenes any of the provisions of section 41B (RELATING TO COMPULSORY DSICLOSURE OF INFO TO CHIEF INSPECTOR), 41C (RESPONSIBILITY OF THE OCCUPIER IN RELATING TO HAZARDOUS PROCESS) OR 41H (RIGHT OF WORKER TO BE INFORMED ABOUT IMMINENT DANGER) Whoever fails to comply with or contravenes any of the provisions of section 41B, 41C or 41H or the rules made thereunder, shall, in respect of such failure or contravention, be punishable with imprisonment for a term which may extend to seven years and with fine which may extend to two lakh rupees, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. or the rules made thereunder, shall, in respect of such failure or contravention, be punishable with imprisonment for a term which may extend to seven years and with fine which may extend to two lakh rupees, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. 2. If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to ten years.

97 Offences by workers 1. Subject to the provisions of section 111, if any worker employed in a factory contravenes any provision of this Act or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine which may extend to five hundred rupees. 2. Where a worker is convicted of an offence punishable under sub-section (1) the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention.

98 Penalty for using false certificate of fitness Whoever knowingly uses or attempts to use, as a certificate of fitness granted to himself under section 70, a certificate granted to another person under that section, or who, having procured such a certificate, knowingly allows it to be used, or an attempt to use it to be made, by another person, shall be punishable with imprisonment for a term which may extend to two months or with fine which may extend to one thousand rupees or with both.

99 Penalty for permitting double employment of child 1. If a child works in a factory on any day on which he has already been working in another factory, the parent or guardian of the child or the person having custody of or control over him or obtaining any direct benefit from his wages, shall be punishable with fine which may extend to one thousand rupees, unless it appears to the Court that the child so worked without the consent or connivance of such parent, guardian or person.

103 Presumption as to employment. 1. If a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved, be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory.

104 Onus as to age (1) When any act or omission would, if a person wear under a certain age, be an offence punishable under this Act, and such person is in the opinion of the Court prima facie under such age, the burden shall be on the accused to prove that such person is no under such age. (2) A declaration in writing by a certifying surgeon relating to a worker that he has personally examined him and believes him to be under the age stated is such declaration shall, for the purposes of this Act and the rules made thereunder, be admissible as evidence of the age of that worker.

104 A Onus of proving limits of what is practicable In any proceeding for an offence for the contravention of any provision of this Act or rules made thereunder consisting of a failure to comply with a duty or requirement to do something, it shall be for the person who is alleged to have failed to comply with such duty or requirement, to prove that it was not reasonably practicable or, as the case may be, all practicable measures were taken to satisfy the duty or requirement

105 Cognizance of offences (1) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an Inspector. (2) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try any offence punishable under this Act.

106 Limitation of prosecutions No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector: Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed. 1[Explanation.—For the purposes of this section,— (a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues; (b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.] STATE AMENDMENT Uttar Pradesh.—After section 106, insert the following section.— "106A. Compounding in offences.—The Inspector may, subject to any general or special order of the State Government in this behalf, compound any offences punishable under this Act with fine only, and committed for the first time, either before or after the institution of the prosecution, on realisation of such amount of composition fee as he thinks fit not exceeding the maximum amount of fine fixed for the offence; and where the offence is so compounded,— (i) before the institution of the prosecution, the offender shall not be liable to prosecution, for such offence and shall, if in custody, be set at liberty; (ii) after the institution of the prosecution the composition shall amount to acquittal of the offender." [Vide Uttar Pradesh Act, 35 of 1979, sec. 4 (w.e.f. 21-12-1979)]. comments On visiting second time, Inspector discovered continuance of disobedience of a provision of the Factories Act, limitation for complaint can be said to start from date of later visit of Inspector; State of Mysore v. M.R. Srinivasan, 1966 (2) LLJ 274.

106 A Jurisdiction of a court for entertaining proceedings, etc., for offence. For the purposes of conferring jurisdiction on any court in relation to an offence under this Act or the rules made thereunder in connection with the operation of any plant, the place where the plant is for the time being situate shall be deemed to be the place where such offence has been committed

107 Appeals (1) The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act or the occupier of the factory may, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order. (2) Subject to rules made in this behalf by the State Government (which may prescribe classes of appeals which shall not be heard with the aid of assessors), the appellate authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the appellate authority and the other by such body representing the industry concerned as may be prescribed: Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the appellate authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit, without the aid of any assessor. (3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the appellate authority may in any case think fit to impose, the appellate authority may, if it thinks fit, suspend the order appealed against pending the decision of the appeal.