# r959 Vishwanath v. Th• Stal• of UUar Prad1sb Wanchoo ]. r959

- **Citation:** [1960] 1 S.C.R. 654
- **Court:** Supreme Court of India
- **Decided:** 1957-08-01
- **Case number:** Criminal Appeal No. 193of1957
- **Bench:** Syed J.Afer Imam, K. N. W Anchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r959-vishwanath-v-th-stal-of-uuar-prad1sb-wanchoo-r959-1807
- **Pages:** 10

## Headnote

F dctories-Precliutions against 'dangerous fumes-Duty of
<Occupier-Liability for accident-" Be permitted to enter", meaning. of-Indian .Factories Act, r948 (LXVIII of r948), s. 36(3)
and (4).
The'appellant was the occupier, of a 'factory where there
was a pit ii)· which dangerous fumes were likely to be present.
The pit was securely covered and enclosed and no one was
expected to go down into it for normal work as it was worked
i?Y gadgets fixed nearby above the 'ground. Something went
wrong with the machin'ery'inside the pit and five workers went
down without wearing suitable breathing apparatus and without
wearing a belt securely.attached to a rope the free end of which
could be held by some person standing outside. All the workers
were overcome by poisonous gases and died. It was found that
suitable breathing apparatus, reviving a,pparatus, belts and ropes
were not available anywhere in the factory and were not kept
for ready use near the pit. The appellant was prosecuted as the
.o~cupier for breach .of the provisions of s. 36(3) and (4) of the
Indian Factories Act, 1948. The trial Court held that no offence
under s. 36(3) had been made out and if was not proved that any
permission, express or implied, had been given to the workmen
to enter the pit, and that no offence under s. 36(4) had been
rqade out because no permission having been given it was not
necessary to keep the brep.thing apparatus etc., near the pit or
,anywhere else in the factory and consequenUy it acquitted the
appellant. On appeal by the State, the High Court set aside the
(1) (1952] S.C.R. 567.'
S.C.R.
SUPREME COURT REPORTS
655
acquittal and directed the trial Court to decide the case against
z959
the appellant in the light of the interpretation of the law made
by the High Court. The High Court was of the view that as Chinubhai .Ilaridas
the appellant had failed to prevent the entry of the workers he
v.
must in law be held to have permitted the entry and committed
The State of
breach of s. 36(3); and that it was not sufficient compliance with
Bombay
s. 36(4) to provide breathing apparatus etc., only after coming
to know that some person was about to enter the pit but that
such apparatus must be immediately available at the pit at all
times.
Held, that s. 36(3) did not cast an absolute duty on the
occupier to prevent the entry into the pit and the mere fact that
a person had entered the pit did not by itself prove that he had
been "permitted to enter " within the meaning of that subsection. The primary duty was on the worker prohibiting him
from entering the pit. At the same time the occupier was also
liable if his permission to the ·entry, whether express or implied,
could be inferred from the facts and circumstances of the case.
Held, iurther, thats. 36(4) cast an absolute duty on the
occupier to see that the breathing apparatus etc., was always
available in the factory and was periodically examined and
certified fit for use and a sufficient number of persons were
trained in its use.
But there was no duty to keep the apparatus at the pit at all times; such a duty arose when some person
was about to enter the pit with the permission of the occupier.
CRIMfNAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 193of1957.
Appeal by special leave· from the judgment and
order dated August 1, 1957, of the Bombay High Court
in Criminal Appeal No. 365 of 1957, arising out of the
judgment and order dated the November 28, 1956, of
Joint Civil Judge, Junior Division, and Judical lVIagisitrate First Class, Broach, in Summary Case No. 57 of
1956.
Rajni Patel and M. S. K. Sastri, for the appellant.
H. J, Umrigar, T. M. Sen and R.H. Dhebar, for
the respondent.
1959. September 4. The Judgment of the Court
was delivered by
W ANcnoo J.-This appeal by special leave against
the judgment of the Bombay High Court raises the
question of the interpretation of sub-ss. (3) and (4) of
s. 36 of the Facteries Act, (LXIII of 1948), (hereinafter called the Act). The brief facts necessary for

## Text

r959
Vishwanath
v.
Th• Stal• of
UUar Prad1sb
Wanchoo ].
r959
654
SUPREME COURT REPORTS [1960(1)]
'
only one below with an ordinary knife which, if
it had been a littfe this way or that, could not have
been fatal, it cannot be said that he inflicted more
ha.rm than was necessary for the purpose of defence.
.As has been pbinted out in Amjad Khan v. The State('),
"these things cannot be weighed in too fine a set of
scales or 'in' golden sce,le' ".
We, therefore, allow the appeal and hold that the
appellant. had the right of private defence of person
under the fifth claivse qf s. 100 and did not cause more
harm than was necessary and acquit him.
Appeal allowed.
C:HINUBHAI HARIDAS
v.
THE STATE OF BOMBAY
(SYED J.AFER IMAM and K. N. W ANCHOO, jJ.)
F dctories-Precliutions against 'dangerous fumes-Duty of
<Occupier-Liability for accident-" Be permitted to enter", meaning. of-Indian .Factories Act, r948 (LXVIII of r948), s. 36(3)
and (4).
The'appellant was the occupier, of a 'factory where there
was a pit ii)· which dangerous fumes were likely to be present.
The pit was securely covered and enclosed and no one was
expected to go down into it for normal work as it was worked
i?Y gadgets fixed nearby above the 'ground. Something went
wrong with the machin'ery'inside the pit and five workers went
down without wearing suitable breathing apparatus and without
wearing a belt securely.attached to a rope the free end of which
could be held by some person standing outside. All the workers
were overcome by poisonous gases and died. It was found that
suitable breathing apparatus, reviving a,pparatus, belts and ropes
were not available anywhere in the factory and were not kept
for ready use near the pit. The appellant was prosecuted as the
.o~cupier for breach .of the provisions of s. 36(3) and (4) of the
Indian Factories Act, 1948. The trial Court held that no offence
under s. 36(3) had been made out and if was not proved that any
permission, express or implied, had been given to the workmen
to enter the pit, and that no offence under s. 36(4) had been
rqade out because no permission having been given it was not
necessary to keep the brep.thing apparatus etc., near the pit or
,anywhere else in the factory and consequenUy it acquitted the
appellant. On appeal by the State, the High Court set aside the
(1) (1952] S.C.R. 567.'
S.C.R.
SUPREME COURT REPORTS
655
acquittal and directed the trial Court to decide the case against
z959
the appellant in the light of the interpretation of the law made
by the High Court. The High Court was of the view that as Chinubhai .Ilaridas
the appellant had failed to prevent the entry of the workers he
v.
must in law be held to have permitted the entry and committed
The State of
breach of s. 36(3); and that it was not sufficient compliance with
Bombay
s. 36(4) to provide breathing apparatus etc., only after coming
to know that some person was about to enter the pit but that
such apparatus must be immediately available at the pit at all
times.
Held, that s. 36(3) did not cast an absolute duty on the
occupier to prevent the entry into the pit and the mere fact that
a person had entered the pit did not by itself prove that he had
been "permitted to enter " within the meaning of that subsection. The primary duty was on the worker prohibiting him
from entering the pit. At the same time the occupier was also
liable if his permission to the ·entry, whether express or implied,
could be inferred from the facts and circumstances of the case.
Held, iurther, thats. 36(4) cast an absolute duty on the
occupier to see that the breathing apparatus etc., was always
available in the factory and was periodically examined and
certified fit for use and a sufficient number of persons were
trained in its use.
But there was no duty to keep the apparatus at the pit at all times; such a duty arose when some person
was about to enter the pit with the permission of the occupier.
CRIMfNAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 193of1957.
Appeal by special leave· from the judgment and
order dated August 1, 1957, of the Bombay High Court
in Criminal Appeal No. 365 of 1957, arising out of the
judgment and order dated the November 28, 1956, of
Joint Civil Judge, Junior Division, and Judical lVIagisitrate First Class, Broach, in Summary Case No. 57 of
1956.
Rajni Patel and M. S. K. Sastri, for the appellant.
H. J, Umrigar, T. M. Sen and R.H. Dhebar, for
the respondent.
1959. September 4. The Judgment of the Court
was delivered by
W ANcnoo J.-This appeal by special leave against
the judgment of the Bombay High Court raises the
question of the interpretation of sub-ss. (3) and (4) of
s. 36 of the Facteries Act, (LXIII of 1948), (hereinafter called the Act). The brief facts necessary for the
•
W at1ciioo J.
656
SUPREME COURT REPORTS [1960(1))
1959
purpose are these. The appellant is the occupier of
C'.
bha' H
·a the Gopal Mills Co. Ltd., Broach, which is a factory
'"nu
•
an as
d fi
d ·
h A
I
h
h
·
·
v.
as e ne m t e
ct.
t appears t at t ere is a pit
The State of
in the factory in which dangerous fumes are likely to
Bomb•y
be present. This pit was securely covered as required
bys. 33(1) of the Act and no one was expected to go
Wanchoo J.
down into the pit for the normal work of the factory
as the pit was worked by gadgets fixed nearby above
the ground. It aplfears, however, that something
went wrong with the machinery inside the pit on July
4, 1955. ]'akirji Dhanjishaw was the person in-charge
of those who were working in the purification plant
with which this pit is connected when the accident
took place at abo,ut 9-30 a. m. on July 4, 1955. It
seems that when something went wrong with the
machinery inside the pit, a labourer named Melia
Dadla was asked to go down into it to attend to it and
he went down without wearing suitable breathing
apparatus and a belt securely attached to a rope, the
free end of which should have been held by a person
standing outside the confined space. The result was
that Melia Dadla was seen overcome by poisonous
gases and died.
Thereafter Fakirji Dhanjishaw,
•
Maganlal Gordhandas, Chunilal Bochar and Chhotalal
Nathubhai went down into the pit without wearing
breathing apparatus and were overpowered with
poisonous gases and died one after the other. It is
not clear when the superior officers in the mill were
informed of this tragedy. But it appears that after
the death of these five persons the Superintendent,
Municipal Fire Brigade, was sent for with breathing
apparatus and other appliances and he went down
into the pit to save the dying persons; but he was
also attacked by the fumes and became unconscious.
The mill doctor and some other doctors also came but
nothing could be done to revive the five persons who
were dead, The matter was reported to the Inspector
of Factories and he went and made enquiries. lt was
then found that suitable breathing apparatus, reviving
apparatus, belts and ropes were not available anywhere in the factory and were not kept ready for
instant use beside the confined space. Consequently,
S.C.R.
SUPREME COURT REPORTS
657
the appellant was prosecuted as the occupiel' for the
r959
breach of s. 36 (3) and (4) of the Act.
c . bh . H
·~-
•
hinu ai
ariuus
The appellant took advantage of s. 101 of the Act and
v.
filed a complaint against the manager S. D. Vashistha
The State of
and the - engineer H. P. Tripathi. In view of this
Bombay
complaint of the appellant, the first question that the
magistra.te had to decide was whether the commission
wanehoo l·
of.the offence had been proved. If the commission of
the offence was proved, the magistrate would have to
consider whether the appellant could be discharged
from liability if he proved to the magistrate's satisfaction that he had used due diligence .to enforce the Act
and that the other two persons committed the offence in
question without his knowledge, consent or connivance.
In considering the question whether an offence had
been committed, the magistrate had to interpret subss. (3) and (4) of s. 36 of the Act. He was of the view
that no offence under s. 36 (3) had been made out as
the prosecution had failed to prove any permission,
express or implied, to Fakirji Dhanjishaw and others
to enter the pit. He was further of the view that no
offence under s. 36 (4) had been committed because no
permission under sub-s. (3) having been granted to
anybody to enter the pit, it was not necessary to keep
the breathing apparatus etc., near the pit or anywhere
else in the factory., He, therefore, held that no offence
had been committed and acquitted the appellant as
well as the manager and the engineer.
There was an appeal by the State of Bombay to the
High Court against the acquittal of the appellant
alone. The High Court disagreed with the interpretation of sub-ss. (3) and (4) of s. 36 by the magistrate
and held that-
" For attracting the application of sub-section (3)
it is not necessary that a positive act of obtaining
permission must be done by a worker or a positive
act of granting permission must be done by the
occupier or manager. If the occupier or man~ger
acquiesces in the entry, he permits the entry. If he
connives at the entry, then also he permits the
entry. If he fails to prevent the entry, then also
he permits the entry."
I959
Citinubhai Harida:;
v.
The State of
l30111bay
rFaiu:lwo ]
(;5g
SUPREME COURT REPORTS [1960(1))
It went on to say.:_
"The scheme of the Act, which is a welfare
legislation, is to require an employer to take
precautionary measures for safeguarding the lives of
his workers, prudent or imprudent, rash or-.careful,
ag>tinst all possible danger while they are working
on the premises of the factory."
It therefore held that as the appellant had not taken
all reasonable steps to prevent the workers from entering the pit in case of the machinery getting out of
order, he had failed to prevent the entry of the workers
into the pit and therefore must be held in law to have
permitted the entry and committed the breach of subs. (3) of s. 36.
As to sub.s. (4) the High Court was of
the view that it was not sufficient compliance with it
to provide breathing apparatus etc. only after coming
to know that some person was about to enter the confined spac0 and that the apparatus must be kept ready
for instant use and must be immediately available near
the con lined space not only to the person who might
enter the confined space with permission but even to
the person who might enter the confined space without
permission. The High Court, therefore, set aside the
acquittal of the appellant and directed that the
appellant's complaint against Vashistha and Tripathi
~hnuld be first decided by the magistrate, (thus, in
effect, setting aside the acquittal of Vashistha and
.Tripathi) and thereafter the m>igistrate should proceed
to decide the case against the appellant in the light of
the law laid down. There was then an application
for a certificate to enable the appellant to appeal to
this Conrt which was rejected. The appellant then
applied to this Court for special leave to appeal which
was granted; and that is how the matter has come up
before us.
The relevant part of s. 36 is in these terms:-
" (3) No person in any factory shall enter or be permitted to enter any confined spaee such as is referred
to in sub.section (1) until all practicable measures
have been taken to remove any fumes whirh may be
present and to prevent any ingress of fumes and
unless either-
S.C.R.
SUPREME COURT REPORTS
659
"(a) a certificate in writing has been given by a
r959
competent person, based on a test carried out by
-
h•
lf h
h
· f
f
d
f"
Chinubhai Haridas
imse , t at t e space is ree rom angerous umes
and fit for persons to enter, or
v.
The State of
(b) the worker is wearing suitable breathing
Bombay
apparatus and a belt securely attached to a rope, the
free end of which is held by a person standing outWanehoo ].
side the confined space.
(4) Suitable breathing apparatus, reviving apparatus and belts and ropes shall in every factory be
kept ready for instant use beside any such confined
space as aforesaid which any person has entered,
and all such apparatus shall be periodically examined and certified by a competent person to be fit for
use; and a sufficient number of persons employed
in every factory shall be trained and practised in
the use of all such apparatus and in the method of
restoring respiration.
Takillg sub-s. (3) first, the question that falls for
consideration is the meaning of the words "be permitted to enter ". The contention on behalf of the State
before the High Court was that these words cast an
absolute duty on the occupier to prevent the entry of any
person in a pit etc. of the kind mentioned in sub-s. (1)
of s. 36 and this seems to have been accepted by the
High Court. Learned counsel for the appellant, however, urges that in the context of this provision, the
duty cast on the occupier is not absolute and there
must be some kind of permission, whether express or
implied, to the person entering the pit etc. before the
occupier is made liable. In other words, it is submitted that it will be for the court on the facts and
circumstances of each case to infer whether there
was permission, express or implied, of the occupier
to the person who enters the pit etc. Mr. Umrigar
appearing for the State of Bombay urges before us
that this latter construction would make the provision
liable to evasion by the occupier. According to him,
this provision means that whenever anyone enters such
a pit etc. the burden is cast on the employer to show
that the entry was against the occupier's instructions.
He even went to the length of saying that if a worker
660
SUPREME COURT REPORTS [1960(1)]
z959
entered the pit in order to commit suicide, it would still
Chinubh•i"Haridas be for the occupier to show that the entry was against
v.
his instructions and that he did all that he could to
The State of
prevent it. In this connection he drew our attention
Bombay
to certain other sections in the Act where similar words
are used, for example, ss. 51, 52, 54, 60, 64, 67, 68, and
i.t· anchoo ] •
W d
71.
e o not think it necessary to consider these
other sections in detail. It is enough to point out that
there is one vital difference between the provisions of
these other sections and the provision contained in
s. 36(3). Section 36(3) prohibits the worker from entering the pit etc. while these other sections have no such
prohibition against the worker and cast the entire
duty on the employer. Section 36(3) therefore will
have to be construed in the context of the words used
therein. It begins with prohibiting any person from
entering any such pit etc. The primary prohibition
therefore is of the person working in the factory and
others and the effect of this prohibition is worked out
in s. 97 of the Act.
Sub-section (1) of s. 97 provides
that if a worker employed in a factory contravenes any
provision of this Act imposing any duty or liability on
workers, he shall be punishable with fine. Sub-section (2)
of this section then lays down that if a worker is convicted of an offence under eub-s. (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 fails to take all reasonable
measures for its prevention. Reading s. 36(3) with
s. 97, it is clear that the prohibition of the worker
against entering any such pit etc. is absolute and if
any worker enters such a pit etc. he is guilty under
s. 97(1). In this case, if the five workers who are dead,
were alive, they would have been guilty under s. 97(1)
for contravening s. 36 (3) by entering the pit. Then
s. 97 (2) would come into operation and it would be for
the prosecution to prove that the occupier or the manager had failed to take all reasonable measures for preventing the entry. The burden thus is on the prosecution to prove that the occupier or the manager had not
taken all reasonable steps for preventing the entry and
not on the occupier or the manager to prove that he
S.C.R.
SUPREME COURT REPORTS
661
had taken all such reasonable steps.
The Court will
z959
therefore have to consider all the facts and circumstances in a particular case to see. if the b~rd~n ha:s Chinubh~ Haridas
been discharged by the prosecut!on.
Jt IS I~ this
The St~tt of
background that we have to consider the meanmg to
Bomba,.
be given to the words " be permitted to ~nter "
appearing ins. 36 (3).
It seems to us that m the
Wanchoo J.
circumstances these words do not cast an absolute duty
on the employer to prevent the enyy and the mere
fact that a person has entered such a pit etc., would
not by itself prove that he had been permitted to enter.
The Court will have to look into the facts and circumstances of the case to come to the conclusion whether
the person who entered the pit was permitted to do so
and mere entry would not necessarily lead to the
conclusion that there was permission to enter,
whether express or implied.
The magistrate in this
case seems to have thought that a positive act of
obtaining permission must be done by the worker or
a positive act of granting permission must be done
by the occupier or the manager, though he has not
said so in so many words. It is not necessary that
there should be a positive act of obtaining permission
by the worker or a positive act of granting permission
by the occupier or the manager. What the court has to
see is whether on the facts and circumstances of a
particular case it will be reasonable to infer that the
entry was with permission, whether express or implied.
The High Court also, with.respect, seems to have gone
too far on the other side when it said that it was the
duty of the employer to take all the precautionary
measures for safeguarding the lives of his workers,
prudent or imprudent, rash or careful, against all
possible danger while they are working on the premises
oft.he factory. This would imply that there was an
absolute duty cast on the employer to prevent the
entry irrespective of the considerations that might ariEje
on the facts and circumstances of a particular case.
The true view of s. 36 (3), in our opinion, is that the
primary duty is ca.st on the worker or any other person
prohibiting his entry into any such pit etc.
At the
same time the occupier is a.lso liable if his permission
84
662
SUPREME COURT REPORTS [1960(1)]
'959
to the entry, whether express or implied, can be
Ch . bh-.
·a inferred on the facts and circumstances of the case;
mu ai Han as b t th"
. .
.
]]
b • .r:
d b
u
1s perm1ss10n cannot m a
cases
e m1erre
v
v.
the mere fact of the entry. The High Court ha'.s
The State of
d d h
.r:
Bombay
reman e t e case to the magistrate ior retrial and in
that retrial the magistrate will proceed to consider the
wanchoo J.
liability of the occupier in the light of the observations
made by us on the construction of s. 36 (3).
Turning now to sub-section (4), it will be found
that it is in two parts. The first :t>iart provides that suitable breathing apparatus, reviving apparatus, belts
and ropes shall in every factory be kept ready for
instant use beside any such confined space as aforesaid
which any person has entered. This to our mind means
that if for any reason a person has to enter such confined space, the apparatus etc., shall be kept ready for
instant use beside such space. The duty for keeping
the apparatus ready beside the space arises only
when a person is entering the confined space, obviously
with the permission of the occupier or the manager.
We do not think that sub-s. (4) contemplates that the
apparatus etc., shall always be kept ready near the
confined space whether there is any occasion for any
person to enter it or not. The necessity of keeping
the apparatus etc. ready, near the confined space arises
when any person is about to enter such space, obviously
with the permission of the employer.
The second part of the section provides that all such
apparatus shall be periodically examined and certified
by a competent person to be fit for use and a sufficient
number of persons employed in every factory 1shall be
trained and practised in the use of all such apparatus
and in the method of restoring respiration. This
clearly shows that the apparatus etc., must always be
available in the factory, though it need not be kept
near the confined space till such time as some one is
about to enter it. There will be no possibility of periodical examination and training of sufficient number of
persons in the use of the apparatus unless the
apparatus was always available in the factory.
The
duty cast by sub-s. (4) is absolute. So far as the first
part is concerned, the duty of keeping the apparatus
'
S.C.R.
SUPREME COURT REPORTS
663
ready for instant use near the confined space arises as
r959
soon as a person is about to enter it, obviously with the C'.
bh--:-H
"d
..
fh
.
s.1:
h
d
'"nuaiarias
perm1ss10n o t e occupier.
o iar as t e secon part
v.
is concerned, it is the duty of the occupier to see that
The state of
the apparatus is always available in the factory and is
Bombay
periodically examined and certified fit for use and a
sufficient number of persons are trained in its use. The
WanC"hoo J.
view taken by the magistrate of the effect of this
section is not correct and the view taken by the High
Court is right except that it is not necessary to keep
the apparatus all the time near the confined space.
The High Court has ordered retrial with respect to the
contravention of sub-s. (4) also and the magistrate who
now retries the case will do so in accordance with the
construction of the sub-section given by us. We have
carefully refrained from saying anything on the facts
of this case as there is going to be a retrial and it will be
for the magistrate to consider all the facts and circumstances before coming to a decision one way or tho
other. The appeal is hereby dismissed.
Appeal dismissed.
RADHA PRASAD SINGH
v.
GAJ ADHAR SINGH & OTHERS
(S. R. DAs, C.J., M. HrnAYATULLAH and
K. c. DAS GUPTA, JJ.)
Appellate Court, power of-Reversal of finding of fact arrived
at by trial Court-Question of credibility of witness-Rule.
Although it is well-settled that a court of appeal should not
lightly disturb a finding of fact arrived at by the trial Judge who
had the opportunity of observing the demeanour of the witnesses
and hearing them, that does not mean that an appellate court
hearing an appeal on facts can never reverse such a finding.
Where the decision on a question of fact depends on a fair consideration of matters on record, and it appears to the Appeal Court
that important considerations have not been taken into account
and properly weighed by the trial Judge, aud such..considerations
clearly indicate that the view taken by the trial Judge is wrong,
it is its duty to reverse the finding even if it involves the disbelieving of witnesses believed by the trial court. Where again
the trial Judge omits to properly weigh or take into account
I959
September 7.