Prashant Kumar, J.@mdashThis application has been filed for quashing the order dated 30.6.1999 passed by learned C.J.M., Jamshedpur in complaint case No. C/2-702 of 1999 whereby he took cognizance of the offence u/s 92 of the Factory Act. It appears that the Factory Inspector, Jamshedpur Circle No. 1, Jamshedpur filed a complaint alleging therein that the petitioners being occupier and manager of M/s. Tinplate Company of India Ltd. had closed the factory from 4.2.1999 in violation of Rules, 100-A of the Bihar Factories Rules, 1950. On the basis of aforesaid official complaint, learned C.J.M., Jamshedpur took cognizance of the offence u/s 92 of the Factory Act vide order dated 30.6.1999.
2. It is submitted by Sri Manish Kumar, learned Counsel for the petitioners, that petitioners filed an application on 1.6.1999 u/s 25(o) of Industrial Dispute Act for permission to close the plant. It is submitted that initially permission was refused, but when the petitioners company filed review application, permission granted in the month of October, 1999. It is submitted that petitioners did not violate any law and the closure of the plant was in accordance with law. It is then submitted that in case of permanent closure Rule 100-A of the Bihar Factories Rules, 1950 has no application. Learned Counsel for the petitioners also submits that Rule 100-A of Bihar Factories Rules 1950 is a State Law whereas Industrial Dispute Act is a Central law. It is submitted that since the Central Act covers the same field, therefore Rule 100-A of the Bihar Factories Rules become inoperative. Accordingly, it is submitted that the prosecution of petitioners u/s 92 of the Factory Act is illegal.
3. On the other hand, Sri S.K. Dubey, learned Additional P.P. submits that it has been alleged that petitioners closed the plant from 4.2.1999 i.e. much before the date of filing of application u/s 25(o) of Industrial Dispute Act. Thus petitioners not only violated the provisions of Rule 100-A of Bihar Factories Rules 1950, but they also contravened the provisions of contained in section 25 (o) of the Industrial Dispute Act. It is submitted that in the instance case, cognizance of the offence taken u/s 92 of the Factories Act. It is submitted that the Factory Act as well as the Industrial Dispute Act are Central Act. It is then submitted that as per section 26 of the General Clauses Act if the same acts and omissions constitute offences under two acts then the petitioner can be prosecuted under either of the Act. It is submitted that in the instant case, it is alleged that the petitioners closed the factory w.e.f. 4.2.1999 without giving any information either to the complainant or to the State Government. Therefore, petitioners can be punished either under the Industrial Dispute Act or under the Factory Act. Thus, there is no illegality in the impugned order which requires any interference by this Court.
4. Having heard the submission, I have gone through the record of the case. It is alleged that petitioners closed Hot Dip Plant, Galvanizing section and Enamiligning section w.e.f. 4.2.1999 and they removed and sold machine of said plants. It is alleged that before making such closure no information given to the complainant and/or the State Government. Annexure-2 reveals that the Factory Inspector inspected the factory on 24.4.1999 and gave notice to the petitioners. In reply to the said notice, petitioners admitted that Mill Nos. 3, 4 and 7 are not in operation and mill Nos. 1, 2 & 7 were sold as scrap. Thus from Annexure-2, it appears that Mill Nos. 1, 2, 3, 4 and 7 were closed on the date of inspection i.e. on 24.4.1999. There is nothing to show that before closing Mill Nos. 1, 2, 3, 4, 6 and 7, petitioners'' company applied for permission to close said Mills before the State Government u/s 25(o) of I.D. Act or petitioners'' company gave information of closure of said Mills to the complainant (Factory Inspector) or the State Government under Rule 100-A of Bihar Factories Act, 1950. Thus, on the date of closure, prima faice, it appears that the petitioners had violated both the provisions i.e. under the Industrial Dispute Act and Factories Act. It is worth mentioning that closure of factory without taking permission of the State Government is an offenses under the Industrial Dispute Act, whereas closure of factory without informing the Factory Inspector/State Government offence u/s 92 of the Factory Act. Thus, acts and omissions of petitioners'' company constitute offences both under the Industrial Dispute Act as well as under the Factories Act. Section 26 of the General Clauses Act reads as follows:--
26. Provision as to offences punishable under two or more enactments.-
Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
5. Thus, in view of the aforesaid provision of General Clauses Act, it is the choice of the prosecutor to prosecute petitioners either under the Industrial Dispute Act or under the Factories Act. In the instant case, petitioners prosecuted under the Factories Act. Therefore I find no illegality in aforesaid prosecution of petitioners.
6. The contention of Sri Manish Kumar that according to the provision of Article 254 of the Constitution of India, Rule 100-A of Bihar Factories Rules 1950 become inoperative after incorporating of section 25(o) of I.D. Act appears to be misconceived. It is worth mentioning that Article 254 of the Constitution of India deals with the enactments of law by Parliament as well as by the State Legislature on the same subject. In the instant case the Factory Act as well as Industrial Dispute Act were enacted by the Parliament and Bihar Factories Rule, 1950 has been framed by the State Government under the Factories Act. Thus, the question of repugnancy does not arise.
7. The contention of Sri Kumar that Factories Act deals with temporary closure, whereas allegations against the petitioners that they closed the Mills permanently, thus, Factory Act has no application, also liable to be rejected. From perusal of Annexure-2, it appears that petitioners admitted that by nonfunctional of Mil Nos. 3, 4 and 7 and sale of old and obsolete mills no worker removed. This shows that on the date of inspection factory was temporarily closed. Under the said circumstance, I, prima facie, find that on the date of inspection, petitioners have violated the provisions of Rule 100-A of Bihar Factories Rules, 1950. Accordingly, I find no merit in this application, same is, accordingly, dismissed.
