1 IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay C.R.R. 2689 of 2014 With CRAN 5 of 2016 (Old No. CRAN 3127 of 2016) And CRAN 11 of 2023 Rabindra Bose & Anr. -Vs- The State of West Bengal and Anr. For the Petitioners : Mr. Rahul Ganguly For the State : Mr. Avishek Sinha For the Opposite Party No.2 : Mr. Sabir Ahmed Mr. Santanu Mitra Ms. Tasnim Ahmed Mr. Dhiman Banerjee Ms. Suman Biswas Heard on : 14.09.2023, 08.01.2024, 09.01.2024, 01.04.2024, 22.04.2024, 27.01.2025 Judgment on : 14.05.2025 Ananya Bandyopadhyay, J.:- 1. The instant revisional application has been filed by the petitioners praying for quashing of the proceedings of C.R. Case No.495 of 2012, pending before 2 the Court of the Learned Judicial Magistrate, Additional Court, Hooghly, under Section 92 of the Factories Act, 1948 and all orders passed therein. 2. Petitioner no.1 was the erstwhile Occupier and Director of the West Bengal Power Development Corporation Limited, Bandel Thermal Power Station, whereas the petitioner no.2 was erstwhile General Manager of the West Bengal Power Development Corporation Limited, Bandell Thermal Power Station. 3. The C.R. Case No.495 of 2012 had been initiated on the basis of a petition of complaint filed by the opposite party no.2 before the Court of the Learned Chief Judicial Magistrate, Hooghly, therein alleging commission of offences by the petitioners punishable under Section 92 of the Factories Act, 1948. 4. The allegations levelled in the said complaint were, inter alia, disclosed the complainant/opposite party no.2 had inspected the site of the occurrence of the accident inside the factory premises of the West Bengal Power Development Corporation Limited on 07.08.2012 and along with Sri Tilak Bandopadhyay, Deputy Chief Inspector of Factories, Barrackpore on 08.08.2012 on receipt of the notice of the accident to enquire into the causes and circumstances of the fatal accident which led to the death of Bappa Biswas, a male contractor worker, while on duty inside the factory on 06.08.2012. Two eye witnesses to the accident were also examined and their statements recorded during inspection. 5. The contents of the said statement were duly read over to Sri Samar Chowdhury and Sri Gopal Hari, the aforesaid two eye witnesses and a copy was handed over to the opposite party no.2. 3 6. It was reported during inspection that deceased Bappa Biswas, a male contractor worker, joined his duty at the said factory on 06.08.2012 at 02:30 p.m. and he was engaged by Sanjib Kumar Roy, a contractor and proprietor of the firm “Sthapan” along with Samir Chowdhury and other 7 workers including Gopal Hari and Robin Mondal in the job of demolishing the Arch of Coal which got stuck along with inner walls of 4C Coal bunker. 7. It was alleged that the accident reportedly took place at about 15:20 hours on 06.08.2012 when Bappa Biswas along with Robin Mondal was standing on a heap of coal at the eastern side t a depth of about 40 feet from the bunker floor in the 4C coal bunker for clearing the jam of coal stuck along with inner walls of the said bunker with the help of crowbar. Suddenly a portion of coal heap caved in and there was a terrible siding of coal which was adhered along the inner walls of the said coal bunker just above the level of head of the deceased Bappa Biswas. In this way Bappa and Robin Mondal got trapped under a very large heap of coal which enveloped them completely. Bappa Biswas was shifted to Chinsurah Imambara Sadar Hospital where he was declared dead. 8. It was alleged that the occupier of the factor had failed to provide a condition that was safe and without risk to health of the deceased and his colleague, Robin Mondal. 9. It was thus the allegation of the opposite party no.2 that the Manager and Occupier of the factory had violated Section 7A of the West Bengal Factories Act, 1948. 4 10. After due perusal of the said petition of complaint, the Learned Chief Judicial Magistrate, Hooghly, was pleased by his order dated 11.10.2012 to take cognizance of the said offence and to transfer the case to the Court of the Learned Judicial Magistrate, Additional Court, Hooghly, for trial and disposal as the opposite party no.2 was a public servant, his examination under Solemn Affirmation was dispensed with. 11. On 12.10.2012 the Judicial Magistrate, Additional Court, Hooghly, was pleased to receive the record of the instant case and was further pleased to fix the next date on 13.12.2012 for S/R and appearance. 12. On 13.12.2012 the present petitioners surrendered before the Court of the Learned Magistrate and prayed for bail along with an application under Section 205 of the Code of Criminal Procedure, praying for exemption from personal attendance and the Learned Magistrate was pleased by his order to allow the petitioners’ prayer for bail. However, the Learned Magistrate was pleased to fix the next date for hearing pertaining to the application under Section 205 of the Code of Criminal Procedure on 28.01.2013. 13. Since thereafter on two occasions, i.e., 28.01.2013 and 20.02.2013 adjournment was taken on behalf of the prosecution and due to absence of the Presiding Officer in the Court. 14. On 14.05.2013 the petitioners were examined under Section 251 of the Code of Criminal Procedure wherein they pleaded not guilty and claimed to be tried. Since thereafter no witnesses were examined on the part of the prosecution and the next date was fixed on 11.07.2014 for evidence. On 11.07.2014 the next date was fixed on 07.11.2014 for evidence. 5 15. The Learned Advocate representing the petitioners submitted in response to the petition of complaint filed by the Inspector of Factories in relation to the incident dated 06.08.2012, which occurred at Bandel Power Thermal Station did not dispute that Bappa Biswas, a contractual worker engaged through M/s Sthapati, expired while attempting to clear a jam in Coal Bunker No. 4C. The said firm, as per records, had been entrusted with mechanical operations relating to coal bunker maintenance by the West Bengal Power Development Corporation Ltd. (WBPDCL). The inspection that followed was conducted on 08.08.2012 and included statements of multiple witnesses including eye-witnesses Samir Chowdhury and Gopal Hari. The inspection report stated both workers, namely Bappa Biswas and Robin Mondal, were wearing safety harnesses, one of which broke during the incident, causing the entrapment. 16. The Learned Advocate of the petitioners had responded to the allegations regarding lack of safety precautions. The use of wet and sticky coal during the monsoon season was indicated in the inspection report as a known and common occurrence in power plants. The statements of the witnesses, including those recorded on 08.08.2012, noted the provision of harnesses to both workers. The assertion made in the complaint regarding structural lapses such as non-installation of liner plates and absence of poking holes was refuted. It was contended that liner plates were typically placed at the base of coal bunkers, not the walls, and the malfunction that allegedly triggered the collapse was the divider plate, not a liner. It was further submitted that no advance intimation was made by the Safety Officer, Sri 6 Goutam Karmakar, or by the Factory Inspector, Sri Santanu Banerjee, suggesting the need for any repair or replacement of internal bunker structures. 17. According to the submissions made, standard practice in coal bunker operations included hammering the exterior wall when jams occur. If the jam does not dislodge, manual poking from the base is carried out. This method was reportedly followed on the date of the accident. Further, it was submitted that the coal bunker had been constructed under the guidance of M/s Westing House Saxby INC, USA during the 1960s and had functioned without incident until 06.08.2012. The contractor, M/s Sthapati, had commenced work on 17.07.2012 and had successfully executed similar cleaning operations across five bunkers. Equipment used included ISI- marked belts and ropes. The breakage of the rope and belt during the incident, as per submission, occurred due to coal pressure and was not attributable to misconduct or inaction by the Occupier or Manager. 18. The employer of the deceased was not made a party to the proceedings. The statement of eye-witness Gopal Hari, who emerged without injury, was cited to support the submission that the event was a sudden and unforeseeable incident. Further reference was made to the role of Mr. Dipankar Chatterjee, the then General Manager of the Power Station, who was present during the inspection and whose co-operation was acknowledged in the report. However, despite the absence of any adverse comment or indication of personal involvement, Mr. Chatterjee was later arrayed as an accused. The 7 Learned Advocate of the petitioners submitted that none of the workers interviewed attributed the incident to any wilful or negligent act by the senior management. It was further submitted that the inspection was conducted in full compliance with the requirements, without any obstruction or delay on part of the management. 19. Additional facts were brought on record regarding operational norms. It was submitted that no worker enters a coal bunker alone during a jamming operation and that a second worker is always present. Bunker design incorporates poking holes fitted with angular chutes that permit insertion of poking rods to a limited extent. These rods cannot address structural blockages that develop beyond their reach due to the configuration of the bunker. It was further submitted that neither the use of longer rods nor the deployment of cages was feasible within the physical dimensions and layout of the bunker in question. 20. The Learned Advocate of the petitioners placed the work order issued to M/s Sthapati dated 07.07.2012 (BTPS/P-32/MO/2012-13/286) on record, which covered mechanical operations and dislodging of arches in bunkers, along with adherence to prescribed safety norms. The contractor’s submission of invoices indicating ISI-marked equipment was also highlighted. It was reiterated that M/s Sthapati was a qualified vendor with previous experience in similar work. These details were placed to indicate the absence of any lapse on part of the management in selecting or supervising the contractor. 8 21. With respect to regulatory provisions, it was submitted that the allegations pertain to suggested violations under the Factories Act, 1948 and the West Bengal Factories Rules, 1958. The Learned Advocate of the petitioners referred to the scheme of the Act wherein the Inspector was required to inspect premises and direct safety measures in case of any perceived danger. It was submitted that no such direction was issued prior to 06.08.2012. The contentions regarding use of cages or changes in liner plate arrangements were therefore presented as retrospective assessments rather than contemporaneous safety recommendations. The role of the Safety Officers appointed at the power station, whose statements were taken during the inspection, was also noted. The statements did not disclose any previous concerns or observations regarding structural safety or operational deficiencies. 22. The Learned Advocate of the petitioners further placed reliance on the categorisation of the power station as a hazardous industry as per Schedule I of the Factories Act. It was submitted that compliance with requirements under Chapter IVA of the Act was maintained, including health and safety protocols, health record maintenance, and information dissemination regarding hazards. It was contended there was no indication from the inspection report of any breach of such duties by the Occupier or the Manager. The records presented included internal documentation of maintenance activities and schedules, as well as protocols followed during routine overhauls every two years, wherein full inspections had been conducted during plant shutdowns. 9 23. Reference was made to the work agreement with the contractor M/s Sthapati, wherein Clause 13 of the agreement explicitly stipulated that the contractor was solely responsible for any accident occurring during execution of the work, including payment of compensation and indemnification of WBPDCL from any such claim. The Learned Advocate of the petitioners submitted that the said clause was known and accepted by both parties and formed part of the operational arrangement at the time of the incident. The said clause was placed to establish that the contractor held independent responsibility for the acts of its workmen and for any mishaps occurring during contract performance. 24. The materials relied upon by the Learned Advocate of the petitioners, including witness statements, work orders, inspection reports, and safety records, were submitted in support of the prayer for relief from proceedings initiated on the basis of the complaint filed by the Inspector of Factories. It was contended that the facts as recorded in File No. BTPS/P-32/MO/2012- 13/286, supported by the inspection dated 08.08.2012 and the procedural compliance thereafter, do not substantiate a case of criminal negligence against the Occupier, the Manager, or Mr. Dipankar Chatterjee, the former General Manager. The Learned Advocate of the petitioners placed reliance on the factual narrative, supported by contemporaneous documentation, and submitted that the unfortunate accident, though resulting in the loss of life, occurred despite established safety protocols and without evidence of culpable omission on their part 10 25. The Learned Advocate of the respondent no. 2 had placed on record submissions regarding the incident that occurred on 06.08.2012 at the premises of the Bandel Thermal Power Station, operated by the West Bengal Power Development Corporation Ltd. It was submitted that on the said date, a worker named Bappa Biswas, aged 23 years, died while on duty inside the coal bunker of the factory premises. The death occurred around 15:20 hours when the deceased was cleaning coal jam inside the bunker using a crowbar. A portion of coal, reportedly adhered to the interior wall above the level of his head, collapsed and enveloped him. The incident was reported through Form No. 18, and an inspection was carried out by the Deputy Chief Inspector of Factories on 08.08.2012 in exercise of powers under Section 9 of the Factories Act, 1948 read with Rule 15 of the West Bengal Factory Rules, 1958. 26. Subsequently, sanction for prosecution under Section 92 of the Factories Act was obtained from the Deputy Chief Inspector and the Chief Inspector of Factories, Government of West Bengal. Based on this sanction, a complaint was registered as C.R. 495 of 2012 before the Learned Chief Judicial Magistrate, Hooghly at Chinsurah. It was argued by the Learned Advocate of the respondent no. 2 that the protection afforded under Section 197 of the Code of Criminal Procedure, 1973 was not applicable to the present petitioners, who were public servants of a public sector undertaking. Reliance was placed on the decision in Mohd. Hadi Reja v. State of Bihar, (1998) 5 SCC 91, and Punjab State Warehousing Corporation v. Bhusan 11 Chand & Anr., (2016) 13 SCC 44, to support the position that prosecution of officials of a PSU does not require prior sanction under Section 197 CrPC. 27. The Learned Advocate of the respondent no. 2 submitted that formal sanction for prosecution under Section 92 of the Factories Act was obtained prior to filing the complaint on 26.09.2012 and that the complaint included allegations of contravention of Sections 7A, 41, and 112 of the Act, along with Rules 50 and 51 of the West Bengal Factory Rules, 1958. It was submitted that the Occupier and Manager of the factory, being persons responsible under Sections 41 and 112 of the Act, failed to ensure that the coal bunker was maintained in a condition that prevented risk of bodily injury to workers. Further, reference was made to Section 2(n)(iii) of the Act to assert that the petitioners held ultimate control over the affairs of the factory and thereby qualified as occupiers under the statute. 28. Further quoted submissions under Section 7A of the Act, the occupier had a statutory duty to ensure, so far as reasonably practicable, the safety and health of workers while they were at work. In the present case, it was contended that such duties were not discharged. The cleaning process that was underway when the accident occurred was argued to have posed a significant risk, and the Occupier and Manager failed to maintain a safe environment within the meaning of the statutory obligations imposed on them. According to the inquiry conducted by the Inspector of Factories following the accident, the findings indicated a failure on part of the factory 12 authorities to implement adequate safety protocols and a failure in supervision, which led to the fatality. 29. The Learned Advocate of the respondent no. 2 further submitted that the inquiry report, prepared following inspection on 08.08.2012, identified negligence on part of the Occupier and Manager, which contributed to the accident. This inquiry report formed part of the factual record and had not been specifically challenged by the petitioners. It was contended that such non-contestation supported the position that statutory duties had not been adequately fulfilled. Further, it was submitted that the provisions of Section 101 of the Factories Act, 1948, which provide for a defence based on due diligence, require that the Occupier and Manager demonstrate that they took all reasonable precautions. In the present case, according to the inquiry findings, there was no such demonstration. 30. The Learned Advocate of the respondent no. 2 submitted that the role of the Occupier and Manager was not limited to respond to incidents after they occurred but to take steps to ensure such incidents did not occur in the first place. The facts ascertained during the inspection process supported the conclusion that there was a lack of effective oversight and operational safety at the time of the incident. It was submitted that although attempts were made to rescue the two workers involved, resulting in the survival of Rabindra Mondal, the overarching duty of the Occupier and Manager was preventive in nature. It was therefore not sufficient to argue post facto 13 response but to demonstrate adherence to preventive measures that would have averted such an accident. 31. The materials forming part of the inspection process and the inquiry report, prepared following the accident, were relied upon by the Learned Advocate of the respondent no. 2 to support the continuation of the prosecution under the Factories Act, 1948. These documents, including statements from witnesses and the timeline of inspection, were submitted to show that statutory violations had occurred, resulting in the fatality. The Learned Advocate submitted that the procedural requirements under the Act and Rules had been satisfied and that the prosecution had been initiated with the appropriate sanction and in accordance with applicable statutory provisions. The findings that emerged during the inquiry, including the alleged failure to implement safe working methods inside the coal bunker, formed the foundation of the complaint registered in C.R. 495 of 2012. The submissions concluded with a reiteration that the role and conduct of the Occupier and Manager can only be fully assessed at the stage of trial. 32. Accordingly, the Learned Advocate of the respondent no. 2 placed reliance on the factual findings in the inspection and inquiry reports dated 08.08.2012, and on the sanction for prosecution granted on 26.09.2012. It was submitted that no mala fides or procedural impropriety could be inferred in the manner in which the complaint was lodged. The case record, including File No. BTPS/P-32/MO/2012-13/286, was referred to in support of the submissions, and it was stated that the allegations and charges 14 arising from the inquiry require adjudication at trial rather than pre-trial discharge or quashing. 33. The relevant Sections of the Factory Act, 1948 is given below:- 2. Interpretation.— (n) “occupier” of a factory means the person who has ultimate control over the affairs of the factory . [Provided that— (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier; (iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the Stale Government or the local authority, as the case may be, shall be deemed to be the occupier:] [Provided further that] in the case of a ship which is being repaired, or on which maintenance work is being carried out, in a dry dock which is available for hire, xxx 7A. General duties of the occupier.— (1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory. 15 (2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include— (a) the provision and maintenance of plant and systems of work in the factory that are safe and without risks to health; (b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provisions of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work; (d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks; (e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work. (3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed. xxx 41-A. Constitution of Site Appraisal Committees.—(1) The State Government may, for purposes of advising it to consider applications 16 for grant of permission for the initial location of a factory involving a hazardous process or for the expansion of any such factory, appoint a Site Appraisal Committee consisting of— (a) the Chief Inspector of the State who shall be its Chairman; (b) a representative of the Central Board for the Prevention and Control of Water Pollution appointed by the Central Government under Section 3 of the Water (Prevention and Control of Pollution) Act, 1974; (c) a representative of the Central Board for the Prevention and Control of Air Pollution referred to in Section 3 of the Air (Prevention and Control of Pollution) Act, 1981; (d) a representative of the State Board appointed under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974; (e) a representative of the State Board for the Prevention and Control of Air Pollution referred to in Section 5 of the Air (Prevention and Control of Pollution) Act, 1981; (f) a representative of the Department of Environment in the State; (g) a representative of the Meteorological Department of the Government of India; (h) an expert in the field of occupational health; and (i) a representative of the Town Planning Department of the State Government, and not more than five other members who may be co-opted by the State Government who shall be— (i) a scientist having specialised knowledge of the hazardous process which will be involved in the factory, 17 (ii) a representative of the local authority within whose jurisdiction the factory is to be established, and (iii) not more than three other persons as deemed fit by the State Government. (2) The Site Appraisal Committee shall examine an application for the establishment of a factory involving hazardous process and make its recommendation to the State Government within a period of ninety days of the receipt of such applications in the prescribed form. (3) Where any process relates to a factory owned or controlled by the Central Government or to a corporation or a company owned or controlled by the Central Government, the State Government shall co-opt in the Site Appraisal Committee a representative nominated by the Central Government as a member of that Committee. (4) The Site Appraisal Committee shall have power to call for any information from the person making an application for the establishment or expansion of a factory involving a hazardous process. (5) Where the State Government has granted approval to an application for the establishment or expansion of a factory involving a hazardous process, it shall not be necessary for an applicant to obtain a further approval from the Central Board or the State Board established under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981). 41-B. Compulsory disclosure of information by the occupier.— (1) The occupier of every factory involving a hazardous process shall disclose in the manner prescribed all information regarding dangers, including health hazards and the measures to overcome such hazards arising from the exposure to or handling of the materials or 18 substances in the manufacture, transportation, storage and other processes, to the workers employed in the factory, the Chief Inspector, the local authority within whose jurisdiction the factory is situate and the general public in the vicinity. (2) The occupier shall, at the time of registering the factory involving a hazardous process, lay down a detailed policy with respect to the health and safety of the workers employed therein and intimate such policy to the Chief Inspector and the local authority and, thereafter, at such intervals as may be prescribed, inform the Chief Inspector and the local authority of any change made in the said policy. (3) The information furnished under sub-section (1) shall include accurate information as to the quantity, specifications and other characteristics of wastes and the manner of their disposal. (4) Every occupier shall, with the approval of the Chief Inspector, draw up an on-site emergency plan and detailed disaster control measures for his factory and make known to the workers employed therein and to the general public living in the vicinity of the factory the safety measures required to be taken in the event of an accident taking place. (5) Every occupier of a factory shall,— (a) if such factory engaged in a hazardous process on the commencement of the Factories (Amendment) Act, 1987, within a period of thirty days of such commencement; and (b) if such factory proposes to engage in a hazardous process at any time after such commencement, within a period of thirty days before the commencement of such process, 19 inform the Chief Inspector of the nature and details of the process in such form and in such manner as may be prescribed. (6) Where any occupier of a factory contravenes the provisions of sub-section (5), the licence issued under Section 6 to such factory shall, notwithstanding any penalty to which the occupier of factory shall be subjected to under the provisions of this Act, be liable for cancellation. (7) The occupier of a factory involving a hazardous process shall, with the previous approval of the Chief Inspector, lay down measures for the handling, usage, transportation and storage of hazardous substances inside the factory premises and the disposal of such substances outside the factory premises and publicise them in the manner prescribed among the workers and the general public living in the vicinity. 41-C. Specific responsibility of the occupier in relation to hazardous processes.—Every occupier of a factory involving any hazardous process shall— (a) maintain accurate and up-to-date health records or, as the case may be, medical records, of the workers in the factory who are exposed to any chemical, toxic or any other harmful substances which are manufactured, stored, handled or transported and such records shall be accessible to the workers subject to such conditions as may be prescribed; (b) appoint persons who possess qualifications and experience in handling hazardous substances and are competent to supervise such handling within the factory and to provide at the working place all the necessary facilities for protecting the workers in the manner prescribed: 20 Provided that where any question arises as to the qualifications and experience of a person so appointed, the decision of the Chief Inspector shall be final; (c) provide for medical examination of every worker— (i) before such worker is assigned to a job involving the handling of, or working with, a hazardous substance, and (ii) while continuing in such job, and after he has ceased to work in such job, at intervals not exceeding twelve months, in such manner as may be prescribed. xxx 41-E. Emergency standards.—(1) Where the Central Government is satisfied that no standards of safety have been prescribed in respect of a hazardous process or class of hazardous processes, or where the standards so prescribed are inadequate, it may direct the Director-General of Factory Advice Service and Labour Institutes or any institution specialised in matters relating to standards of safety in hazardous processes, to lay down emergency standards for enforcement of suitable standards in respect of such hazardous processes. (2) The emergency standards laid down under sub-section (1) shall, until they are incorporated in the rules made under this Act, be enforceable and have the same effect as if they had been incorporated in the rules made under this Act. [41-F. Permissible limits of exposure of chemical and toxic substances.—(1) The maximum permissible threshold limits of exposure of chemical and toxic substances in manufacturing processes (whether hazardous or otherwise) in any factory shall be of the value indicated in the Second Schedule. 21 (2) The Central Government may, at any time, for the purpose of giving effect to any scientific proof obtained from specialised institutions or experts in the field, by notification in the Official Gazette, make suitable changes in the said Schedule.] 41-G. Workers' participation in safety management.—(1) The occupier shall, in every factory where a hazardous process takes place, or where hazardous substances are used or handled, set up a Safety Committee consisting of equal number of representatives of workers and management to promote cooperation between the workers and the management in maintaining proper safety and health at work and to review periodically the measures taken in that behalf: Provided that the State Government may, by order in writing and for reasons to be recorded, exempt the occupier of any factory or class of factories from setting up such Committee. (2) The composition of the Safety Committee, the tenure of office of its members and their rights and duties shall be such as may be prescribed. 41-H. Right of workers to warn about imminent danger.—(1) Where the workers employed in any factory engaged in a hazardous process have reasonable apprehension that there is likelihood of imminent danger to their lives or health due to any accident, they may bring the same to the notice of the occupier, agent, manager or any other person who is in-charge of the factory or the process concerned directly or through their representatives in the Safety Committee and simultaneously bring the same to the notice of the inspector. (2) It shall be the duty of such occupier, agent, manager or the person in-charge of the factory or process to take immediate 22 remedial action if he is satisfied about the existence of such imminent danger and send a report forthwith of the action taken to the nearest Inspector. (3) If the occupier, agent, manager or the person in-charge referred to in sub-section (2) is not satisfied about the existence of any imminent danger as apprehended by the workers, he shall, nevertheless, refer the matter forthwith to the nearest Inspector whose decision on the question of the existence of such imminent danger shall be final.] xxx 92. General penalty for offences.—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: [Provided 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 [twenty-five thousand rupees] in the case of an accident causing death, and [five thousand rupees] in the case of an accident causing serious bodily injury. 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 23 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.] 34. It has been pleaded that the petitioner no. 1 and petitioner no. 2 had been the erstwhile occupier and Director and General Manager of the West Bengal Power Development Corporation Limited, Bandel Thermal Power Station respectively. 35. The West Bengal Power Development Corporation Limited is controlled by the State Government. In accordance with Section 2 (n) (iii) of the aforesaid Act as stated above, the opposite party did not produce any document or adduce any oral evidence to primarily cast obligation upon the petitioners for noncompliance of the safety measures and statutory rules to indict them, to establish that the petitioners had been categorically appointed to manage the affairs of the factory. 36. It had been painstakingly unwarranted and unfortunate that a person in course of discharging his duties expired in such a precarious manner. The victim was alleged to have been subjected to an unsafe cleaning process exposing him to significant risk and danger attributing failure on the part of the factory to conform to necessary safety measures endangering the life of the victim. The victim being a contractual worker had been engaged through a contractor being entrusted with mechanical operations relating to maintenance to coal bunker by West Bengal Power Corporation Limited. It had been deposed by the eyewitnesses that the workers namely Bappa Biswas and Robin Mandal wore safety harnesses, one of which broke the 24 rope and belt resulting in entrapment. The contract between the firm and the corporation included cleaning operations across five bunkers. The equipment used for such operations were ISI marked belts and ropes. The rope and the belt snapped due to the pressure of coal which was unprecedented and unpredictable. 37. Petitioner no. 2 was present at the place of inspection to have acknowledged the report of a sudden and unforeseeable incident conforming to the statement of one eye witness Gopal Hari who was incidentally unharmed. Petitioner no. 2 was subsequently impleaded as an accused who was not necessarily an occupier of a factory according to the definition of Section 2(n) of the Factory’s Act. A conjoint study of general duties of the occupier according to Section 7A and 41 of the aforesaid Act as stated above did not cast sole and exclusive responsibility on the employers /occupiers/directors of the factory to maintain and monitor the equipment and the system of work and functioning of the equipment to ensure safety of the workers without exposing them to risks to health, endangering their life. It is the incumbent duty of the State Government to constitute a Site Appraisal Committee to grant approval to an application for the establishment or expansion of a factory involving a hazardous process. The Site Appraisal Committee should have called for information from time to time regarding the maintenance of safety and health of the workers as aforesaid. 38. The workers also under Section 41 G of the aforesaid Act being representatives of the Safety Committee set up under Section 41 G of the aforesaid Act to promote corporation between the workers and the 25 management were responsible in maintaining proper health and safety at work. According to Section 41 H, it is incumbent upon the workers to inform of imminent danger based on reasonable apprehension of likelihood of getting exposed to hazardous conditions affecting their lives and health due to an accident and notify the occupier, agent, manager or any other person who was in charge of the factory or the process directly or through the representative in the safety committee and simultaneously notify the inspector as well, demanding an immediate remedial action if at all on inspection, the existence of such imminent danger was perceived and detected. 39. 39. In view of the aforesaid provisions, sole responsibility exclusively and predominantly can’t be cast over the petitioners wherein as public servants their liability and/or obligation had not been prima facie established through production of contemporaneous documents issued by the State Government empowering them to address the issues of maintenance of safety and health of the workers in accordance to Section 2(n) (iii) of the aforesaid Act which documents could have been impeachable in the instant case. It has been rightly submitted by the Learned Advocate of the opposite party party cited in 1998 (5) SCC 91 that sanction protection of view of sanction of Section 197 of the CrPC was not applicable to the officers of government companies or the public undertakings even when such public undertakings are ‘State” within the meaning of Article 12 of the Constitution on the account of deep and pervasive control of the government. 26 40. The petitioners having been retired or else resigned or to have ceased to be the employees of the aforesaid Corporation in absence of specific prima facie instances to have been directly involved in any negligent act or evasion of responsibility to maintain or provide safety to the health and lives of the workers cannot be thrust with a criminal case to face the trial to their individual prejudice and also to create workload on the trial court. 41. In view of the above discussions, the proceedings of C.R. Case No.495 of 2012, pending before the Court of the Learned Judicial Magistrate, Additional Court, Hooghly, under Section 92 of the Factories Act, 1948 and all orders passed therein are quashed. 42. Under such facts and circumstances, the instant criminal revisional application being CRR 2689 of 2014 is allowed. 43. Accordingly, CRR 2689 of 2014 and its connected applications are disposed of. 44. There is no order as to costs. 45. Case Diary, if any, to be returned forthwith. 46. Let the copy of this judgment be sent to the Learned Trial Court as well as the police station concerned for necessary information and compliance. 47. All parties shall act on the server copy of this judgment duly downloaded from the official website of this court. (Ananya Bandyopadhyay, J.)