The Bombay High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to the respondents with regard to the “role, responsibility of the ‘Safety Officers’/professionals engaged in all establishments all over Maharashtra and especially the Safety Officers responsibility in the matters of police cases due to some wrongful acts done by company or factory or by establishment/management”.
The petition, styled as a public interest litigation (PIL), is at the instance of OHSSAI (Occupational Health, Safety, Sustainability Association India) Foundation, through its founder President and General Secretary.
Referring to the provisions of section 40B of the Factories Act, 1948 as well as the Maharashtra Safety Officers (Duties, Qualification and Conditions of Service) Rules, 1982, it is claimed that the role of the Safety Officers is purely of “advisory nature”.
It is further claimed that the duty of the Safety Officers is to advise and assist the employer/factory management in the fulfillment of the obligations, statutory or otherwise, concerning prevention of personal injuries and maintaining a safe working environment. At the under-construction site crash, which happened in Pune, the safety engineer/officer along with three others was arrested by the Yerwada Police Station with a case of culpable homicide not amounting to murder and other charges and since then, he has been in jail/police custody.
It is also claimed that the role of the safety officers is merely of advisory nature, yet, in the above cited case and such other cases of any unfortunate accident occurring in future, the arrest of the Safety Officers could be avoided and if a preliminary investigation is conducted and it is found that the Safety Officer is responsible for negligence, only then he should be arrested by the police.
Appearing in support of the PIL, Dr. Suresh T. Mane advocate, refers to the statutory provisions contained in the Factories Act as well as in the Rules of 1982 and the Maharashtra Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2007 to argue that the role of the Safety Officers being purely advisory in nature, such Safety Officers ought not to be prosecuted for failure on the part of the employers of such officers/factory management to ensure safety and health at the respective workplace.
It is the further contention of Dr. Mane that where number of employees or workers are engaged, it is the duty of the company/factory owner/establishment to have such work executed in safe working conditions taking care of the safety of the employees so that any accident of similar nature as the one in Pune can be avoided.
The Division Bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja noted that Safety Officers are required to be employed in every factory where more than a thousand workers are ordinarily employed or as and when a notification is issued under sub-section (1) of section 40B of the 1948 Act by the State Government. In terms of the Rules of 1982, recruitment of safety officers would be guided by Rule 5. A process of selection is envisaged therein. The duties of Safety Officers under the Rules of 2007 are not substantially different from the duties as are provided in Rule 8 of the Rules of 1982, extracted supra.
Having regard to the qualifications an aspirant for employment on the post of Safety Officer is required to possess, the Bench further noted that once appointed, the incumbent would be required to advise and assist the factory management in fulfilment of its obligations, statutory or otherwise, concerning prevention of personal injuries and maintenance of safe working environment. In terms of Rule 7(4) of the Rules of 1982, a Safety Officer shall be provided with adequate technical and secretarial staff and equipment to enable him to function efficiently.
From the scheme of the 1948 Act as well as the Rules framed thereunder, namely, the Rules of 1982, the High Court have no doubt that the Safety Officers are responsible for ensuring precautions to avoid accidents or any untoward incidents having the potential of causing loss to lives and limbs of workers employed in the factories. Additionally, the responsibilities of a Safety Officer do not end with advising the person in-charge of the factory or the occupier to take measures for safeguarding the lives and limbs of the workers at risk of receiving injuries, but also to carry out safety inspections to remove unsafe physical conditions as well as to prevent unsafe actions by the workers. Therefore, apart from advising the factory management to fulfil its obligations, a Safety Officer has a positive role to ensure safe working conditions.
In the event the employer/factory management has not acted on his advice, a Safety Officer has a duty to investigate dangerous occurrences and report under Rule 115 of the Maharashtra Factories Rules, 1963 as well as to promote setting up of safety committees and act as an advisor to such committees , held the High Court.
The Court did not find the materiality of the decision in Allaiah (supra) to the facts of the present case. The High Court of Karnataka was not concerned with a case of failure to discharge duty by a Safety Officer appointed under the 1948 Act. Moreover, the decision in Allaiah (supra) turns on the contents of the charge-sheet that was filed under section 173(2) of the Cr. P.C. Finally, no law has been laid down therein which would have application in the present case to decide the issue raised by the petitioner.
Finally, the letter dated August 7, 2010 of the Deputy Director of Factories and Boilers, Jajpur Road Division, Jajpur Road, District Jajpur, Orissa is taken up for consideration by the High Court.
First the Court noted that the federal structure of governance of the country has to be respected. The rules framed by the States of Orissa and Maharashtra under the 1948 Act have not been shown to be similar.
Secondly, each State has its own peculiar problems and solutions. What the State of Orissa in a given fact situation directs may not be the proper solution when the State of Maharashtra faces such a problem.
Thirdly, the letter does not go so far as to support the contention of Dr. Mane for a preliminary inquiry to precede the registration of an FIR.
It simply requests the police to get in touch with the Deputy Director. The letter of the Deputy Director, therefore, cannot be called in aid by the petitioner, the Bench observed.
The Court opined that the PIL has been instituted to protect erring Safety Officers. It is thoroughly vexatious and misconceived; hence, the same is dismissed by the High Court.
The Registrar General is directed by the High Court to consult with the Charity Commissioner and identify any institution/organisation working for the upliftment of children suffering from Cancer and to make over such an amount of Rs one lakh to such institution/organisation.