M.R.F. Ltd. v. Director of Factories & Boilers, Government of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930** ## **OP.No. 7323 of 1998(V)** **-------------------------------** **PETITIONER:** ## **-----------------** **M.R.F LTD., POST BOX NO. 2, KOTTAYAM- 686 010, REP. BY ITS SENIOR GENERALMANAGER, GEORGE MATHEW.** **BY ADV. SRI.M.PATHROSE MATTHAI SRI.SAJI VARGHESE** **RESPONDENTS:** **----------------------** **1. THE DIRECTOR OF FACTORIES & BOILERS, OFFICE OF THE DIRECTOR OF FACTORIES & BOILERS, GOVT. OF KERALA, UPPALAM ROAD, THIRUVANANTHAPURAM.** **2. JOINT DIRECTOR OF FACTORIES & BOILERS (MEDICAL), INDUSTRIAL HYGIENE LABORATORY COMPLEX, DEPARTMENT OF FACTORIES & BOILERS, KUMARAPURAM, THIRUVANANTHAPURAM-11.** **3. INSPECTOR OF FACTORIES & BOILERS, KOTTAYAM.** **4. GOVERNMENT OF KERALA, REP. BY THE SECRETARY, LABOUR AND REHABILITATION DEPARTMENT, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI. SANDESH RAJA** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2008,THE COURT ON 07/04/2008 DELIVERED THE FOLLOWING:** ## **ORDER ON CMP NO. 12811/1998 IN OP NO. 7323/1998 V** ## **DISMISSED** **07/04/2008. SD/- P.N.RAVINDRAN, JUDGE.** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1. COPY OF THE INSPECTION ORDER DT. 3/4/96 BY THE SR. JOINT DIRECTOR OF FACTORIES & BOILERS.** ## **EXT.P2. COPY OF THE APPLICATION DT. 22/5/96 BEFORE THE R1.** **EXT.P3. COPY OF THE LETTER DT. 10/1/97 FROM THE R1 TO THE PETITIONER. EXT.P4. COPY OF THE LETTER DT. 21/1/97 BY THE PETITIONER TO THE R1. EXT.P5. COPY OF THE LETTER DT. 31/3/98 FROM THE R1.** ## **RESPONDENT'S EXHIBITS** ## **EXT.R1A. COPY OF THE PRIORITY INSPECTION REPORT OF MRF LTD., KOTTAYAM.** _True copy_ _tga_ ## **P.N.Ravindran, J. ============== O.P.No.7323 of 1998** ## **========================** ## **Dated this the 7[th] day of April, 2008.** ## **JUDGMENT** The petitioner, a company incorporated under the Companies Act, 1956, is engaged in the manufacture of automotive tyres, tubes and other rubber products. It employs 1254 workers in its factory at Vadavathoor in Kottayam. The main raw material for the manufacture of automotive tyres, tubes and other rubber products is natural rubber. Besides natural rubber, chemicals and other materials are also used in the manufacturing process. 2. After inspecting the petitioner's factory on 22.3.1996, the Senior Joint Director of Factories and Boilers, Thiruvananthapuram issued Ext.P1 order dated 3.4.1996 directing inter alia that an "Ambulance Room" as prescribed, should be provided in the factory. The reference evidently is to Section 45(4) of the Factories Act, 1948, hereinafter referred to OP 7323/98 -: 2 :- as the "Act" for short. On receipt of Ext.P1, the petitioner submitted Ext. P2 letter dated 22.5.1996 to the Director of Factories and Boilers, the first respondent herein, pointing out that as a well equipped ESI hospital is available very close to the factory, it is unnecessary to have an ambulance room in the factory and therefore the petitioner's factory may be exempted from providing an ambulance room invoking Rule 90(5) of the Kerala Factories Rules, 1957, hereinafter referred to as the "Rules" for short. The first respondent considered the petitioner's request in Ext.P2 and sent Ext.P3 letter dated 10.1.1997 in reply, stating that as per Section 45 of the Act, it is mandatory to provide an ambulance room in every factory wherein more than 500 workers are ordinarily employed, that there is no provision in the Act to grant exemption from providing an ambulance room and that Rule 90(5) of the Rules contemplates grant of exemption from the requirements of Rule 90 only and not from the provisions of Section 45 of the Act. The petitioner was also informed that its request for exemption from providing an ambulance room is therefore rejected. The petitioner thereupon sent Ext.P4 letter dated 21.1.1997 to the Director of Factories OP 7323/98 -: 3 :- and Boilers pointing out that Section 45 (4) of the Act has to be read along with Rule 90 of the Rules and that when the conditions prescribed in Rule 90(5) of the Rules are satisfied, exemption can be given from providing an ambulance room as required under Section 45 (4) of the Act. In Ext.P4, the petitioner requested the Director of Factories and Boilers to reconsider his decision and to grant exemption in terms of Rule 90(5) of the Rules. By Ext.P5 letter dated 31.3.1998, the Director of Factories and Boilers called upon the petitioner to provide an Occupational Health Centre in its factory immediately for the reason that it is classified as "hazardous" as per the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 and the process is hazardous process as per the first schedule to the Act. The petitioner was also informed that there is no necessity to provide an ambulance room and the question of granting exemption would not arise at all, if there is an Occupational Health Centre with all the requirements, in the factory. This original petition was thereupon filed seeking the following reliefs: "i) call for the records and proceedings relating OP 7323/98 -: 4 :- to Exts.P3 and P5 and to quash or set aside the same by the issue of a writ of certiorari or other appropriate writ, order or direction; ii) to issue a writ of mandamus to the 1st respondent directing him to grant exemption to the petitioner under Rule 90(5) of the Kerala Factories Rules from the requirements of Rule 90 from providing ambulance room at the petitioner's factory at Vadavathoor;" 3. The Director of Factories and Boilers, the first respondent herein, has filed a counter affidavit wherein it is stated that an ambulance room as contemplated in Section 45(4) of the Act is mandatory for any factory wherein more than 500 workers are ordinarily employed, that Rule 90 of the Rules stipulates the details regarding the infra structure, facilities, staff, etc. required to be provided in the ambulance room and that Rule 90(5) of the Rules enables the Chief Inspector of Factories to exempt any factory from the requirements of Rule 90 only, subject to such conditions as may be specified, if a hospital, ambulance room or dispensary is maintained at or near the factory and such arrangements are made as to ensure the immediate treatment of all injuries to workers occurring within OP 7323/98 -: 5 :- the factory and for providing rest to the injured workers. It is further contended that the mere fact that a ESI hospital is located near the petitioner's factory does not call for an order of exemption in favour of the petitioner. The counter affidavit proceeds to state that the activity in the petitioner's factory is a hazardous process as defined in Section 2(cb) of the Act and the Manufacture, Storage and Import of Hazardous Chemicals Rules 1989. It is contended that as synthetic rubber is also used as a raw material in the petitioner's factory, Section 2(cb) of the Act will apply and therefore the petitioner's factory falls in entry 13 of the the first schedule to the Act. It is stated that the Inspection Team headed by the Joint Director of Factories and Boilers (Medical), Thiruvananthapuram had after inspecting the petitioner's factory on 28.6.1997 concluded that Rule 81AJ of the Rules will apply to the petitioner's factory and therefore the management was bound to set up an Occupational Health Centre with all facilities. It is also stated that for these reasons, the petitioner's request for exemption was validly rejected, that against Ext.P3, the petitioner ought to have filed an appeal under Section 107 of the Act to the State Government and that instead, OP 7323/98 -: 6 :- the petitioner chose to make repeated requests for exemption. It is also stated that Ext.P5 letter was issued in continuation of the earlier correspondence and that it was sent after the inspection referred to in Ext.R1 report. The stand taken in Ext.P5 is sought to be sustained relying on Rule 81 AJ of the Rules. It is further stated that Ext.P5 was issued to alert the petitioner that its factory comes under the purview of the rules framed under Sections 41B and 41C of the Act, which specify the responsibility of the occupier of a factory wherein the activity is a hazardous process. As regards the plea of the petitioner that a ESI Hospital is located near its factory, the counter affidavit states that the management has not produced any valid agreement with the said hospital, that most of the workers in the petitioner's factory are not eligible for ESI benefits and that the facilities in the ESI Hospital are of a general nature. The inspection report, a copy of which is marked as Ext.R1 states inter alia as follows: ## "23. **Medical facilities:** A. The inspection team evaluated the medical facilities provided by the factory management and found to be inadequate. There shall be provided and maintained in good condition an ambulance van OP 7323/98 -: 7 :- manned by a full time driver cum mechanic and a helper trained in First-aid for the purposes of transportation of serious cases of accident or sickness. The ambulance van shall not be used for any purpose other than the purpose stipulated herein and will normally be stationed at or near to the proposed Occupation Health Centre. Factory of this size and coming under the provisions of S.2(cb) requires an Occupational Health Centre to monitor and conduct the health conditions of the workers. Pre-employment and periodic medical examination is required. This Occupational Health Centre should also cover the requirements of Artificial Respiration. B. Till such centre is established, the management shall provide first-aid facilities as prescribed by law in all key sections. C. In addition to these, the management shall make available, a minimum of three qualified first-aiders in every shift." 4. I heard Sri.M.Pathrose Mathai, the learned Senior Counsel appearing for the petitioner and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. Assailing Ext.P3, the learned Senior Counsel appearing for the petitioner submitted that the reasoning therein that Rule 90(5) of OP 7323/98 -: 8 :- the Rules does not empower the Chief Inspector of Factories to exempt the petitioner's factory from providing an ambulance room as stipulated in Section 45 of the Act is faulty and untenable. The learned Senior Counsel submitted that Section 45 (4) of the Act cannot operate on its own, that it is dependent on Rule 90 of the Rules and therefore, the Chief Inspector of Factories is competent to exempt the petitioner's factory from providing an ambulance room if the conditions stipulated therein for the grant of exemption are satisfied. The learned Senior Counsel submitted with reference to the decision of the Apex Court in **Punjab Sikh Regular Motor Service, Moudhapara, Raipur** v. **Regional Transport Authority, Raipur & another** - A.I.R. 1966 S.C. 1318, that the provisions in 90(5) of the Rules supercede Section 45(4) of the Act and that once the conditions stipulated therein for the grant of exemption exist, the Chief Inspector of Factories has the power coupled with a duty to grant exemption. The learned Senior Counsel contended that even though Section 45(4) of the Act stipulates that in every factory wherein more than 500 workers are ordinarily employed, an ambulance room of the prescribed size containing the prescribed OP 7323/98 -: 9 :- equipment and in charge of such medical and nursing staff as may be prescribed shall be provided, it is made subject to Rule 90 of the Rules framed by the State Government under Section 112 of the Act and that the provision in Rule 90(5) empowering the Chief Inspector of Factories to grant exemption, supersedes the direction in Section 45(4) of the Act that there shall be provided and maintained an ambulance room in every factory wherein more than 500 workers are ordinarily employed. The learned Senior Counsel contended that the Director of Factories and Boilers has proceeded on the erroneous assumption that Section 45 of the Act does not contemplate the grant of exemption, that Rule 90(5) of the Rules contemplates only exemption from the stipulations in Rule 90 and that the said provision does not empower him to exempt the petitioner's factory from providing an ambulance room. As regards the contention of the respondents that the petitioner's factory falls in the list of industries involving hazardous process and that entry 13 in the first schedule to the Act takes in the petitioner's factory as well, it was submitted that only factories which are engaged in the manufacture of synthetic rubber fall within the said entry. OP 7323/98 -: 10 :- The learned Senior Counsel contended that if synthetic rubber is used as a raw material in a factory, that by itself cannot result in the industry being classified as an industry wherein hazardous process is involved. It was submitted that that the term "hazardous process" has been defined in Section 2(cb) of the Act to mean any process or activity in relation to an industry specified in the first schedule to the Act where, unless special care is taken, the raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereof would cause material impairment to the health of the persons engaged in or connected therewith or result in the pollution of the general environment. The learned Senior Counsel for the petitioner contended that in the light of the definition of the term "hazardous process", a factory engaged in the manufacture of automotive tyres, tubes and other rubber goods wherein synthetic rubber is also used as a raw material cannot be said to be an industry specified in the first schedule to the Act. The learned Senior Counsel also referred to and relied on the provisions of the Industries (Development and Regulation) Act, 1951, to contend that industries engaged in the manufacture of OP 7323/98 -: 11 :- synthetic rubber and industries engaged in the manufacture of rubber goods are different and distinct. It was submitted that an industry engaged in the manufacture or production of synthetic rubber falls under entry 19(6), while an industry engaged in the manufacture or production of rubber goods including tyres and tubes falls under entry 30 of the first schedule to the Industries (Development and Regulation) Act, 1951. The learned Senior Counsel contended that the test to ascertain whether the petitioner's industry falls within the list of industries enumerated in the first schedule to the Act is not the user test but the end product test and that to fall within entry 13 of the first schedule to the Act, the industry should be one engaged in the manufacture or production of synthetic rubber and not one in which synthetic rubber is also used as a raw material. 5. Per contra, Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents contended that Section 45 (4) of the Act is mandatory and that in every factory wherein more than 500 workers are ordinarily employed, an ambulance room has to be provided and maintained. The learned Government Pleader submitted that the petitioner's factory falls OP 7323/98 -: 12 :- within entry 13 of the first schedule to the Act, since the manufacturing process involves the use of synthetic rubber also as a raw material. The learned Government Pleader further contended that Rule 90 of the Rules prescribes the size of the ambulance room, the equipment, the number of medical and nursing staff to be deployed therein and such other details and that the exemption contemplated in Rule 90(5) of the Rules can only be from the requirements of Rule 90 and not from the very obligation to provide and maintain an ambulance room as required under Section 45(4) of the Act. It was further contended that such an exemption could be given only if a hospital, ambulance room or dispensary is maintained at or near the factory and such arrangements are made as to ensure the immediate treatment of all injuries to workers occurring within the factory and for providing rest to the injured workers. The learned Government Pleader also contended that the principles laid down by the Apex Court in A.I.R. 1966 S.C. 1318 (supra) do not apply at all to the case on hand. It was submitted that the Act is a welfare legislation, enacted to ensure the safety of factory workers and therefore an interpretation in favour of the OP 7323/98 -: 13 :- workers should be placed on Rule 90 of the Rules. The learned Government Pleader submitted that as Section 45 of the Act does not contemplate the grant of exemption, Rule 90(5) of the Rules cannot be invoked to claim or grant exemption from providing an ambulance room in any factory. 6. I shall first consider the question whether the petitioner's factory, which is engaged in the manufacture of automotive tyres, tubes and other rubber goods, is a factory in which hazardous process is involved in the manufacturing process. The Industries (Development and Regulation) Act, 1951 provides for the development and regulation of the industries described in the schedule thereto. I shall for easy reference extract entry 19 and entry 30 of the first schedule to the Industries (Development and Regulation) Act, 1951, hereinafter referred to as the "Regulation Act" for short. ## "19. **CHEMICALS (OTHER THAN FERTILISERS):** - (1) Inorganic heavy chemicals. - (2) Organic heavy chemicals. - (3) Fine chemicals including photographic chemicals. - (4) Synthetic resins and plastics. - (5) Paints, varnishes and enamels. - (6) Synthetic rubbers. - (7) Man-made fibres including regenerated cellulose-rayon, OP 7323/98 ## -: 14 :- nylon and the like. - (8) Coke oven by-products. - (9) Coal-tar distillation products like naphthalene, anthracene and the like. - (10) Explosives including gunpowder and safety fuses. - (11) Insecticides, fungicides, weedicides and the like. - (12) Textile auxiliaries. - (13) Sizing materials including starch. - (14) Miscellaneous chemicals." ## "30. **RUBBER GOODS:** - (1) Tyres and and tubes. - (2) Surgical and medicinal products including prophylactics. (3) Footwear. - (4) Other rubber goods. 7. Entry 19 in the first schedule to the Regulation Act relates to chemical industries. Factories engaged in the manufacture and production of synthetic rubber fall in item 6 of entry 19 thereof. Factories engaged in the manufacture of rubber goods fall in entry 30 thereof. Under the Regulation Act, a factory manufacturing synthetic rubber is classified as a factory engaged in the manufacture of chemicals while a factory engaged in the manufacture of tyres and tubes, surgical and medicinal products including prophylactics, footwear and other rubber goods is classified as a factory manufacturing rubber goods. A Full Bench of this Court in **Elizabeth** v. **State of Kerala** - 1991 OP 7323/98 -: 15 :- (1) K.L.T. 475, interpreting the provisions of the Regulation Act held that industries comprised in the first schedule to that Act are those engaged in the manufacture of the articles mentioned under each of the headings or sub headings therein and that industries, engaged in the production of raw materials necessary for a scheduled industry are not engaged in the production of the articles mentioned in the schedule. The Full Bench repelled the contention that as China clay is a raw material used by industries engaged in the manufacture and production of China ware and pottery, which is item 6 in entry 34 of the first schedule to the Regulation Act, the entry must be deemed to comprehend within it, an industry engaged in the manufacture of China clay as well. It is therefore evident that a factory engaged in the manufacture of rubber goods which include (1) tyres and tubes (2) surgical and medicinal products including prophylactics, (3) footwear and (4) other rubber goods cannot be said to be a factory engaged in the production of synthetic rubber for the reason that synthetic rubber is also used in the manufacturing process of the said goods. An industry engaged in the manufacture of synthetic rubber which falls in item 6 of entry 19 in the first schedule to the OP 7323/98 -: 16 :- Regulation Act, cannot therefore be held to be an industry engaged in the production of rubber goods which falls within entry 30 thereof. 8. A factory engaged in the manufacture of automotive tyres, tubes and other rubber goods and a factory engaged in the manufacture of synthetic rubber belong to two different categories. In the petitioner's factory, the raw materials used are natural rubber and chemicals including synthetic rubber as well. In my opinion, as rightly contended by the learned Senior Counsel for the petitioner, the test to ascertain whether the petitioner's factory falls within any of the entries in the first schedule to the Act is not the user test, but the end product test. Applying that test, only an industry engaged in the manufacture of synthetic rubber will fall within entry 13 of the first schedule to the Act. If the contention of the learned Government Pleader is accepted, any industry which uses iron and steel or cement as a raw material in its factory, would also be an industry involving hazardous process. For example, a factory manufacturing cement blocks using portland cement cannot be said to be an industry involving hazardous process. What is included in the list OP 7323/98 -: 17 :- of industries involving hazardous process is only an industry engaged in the manufacture of cement (vide entry 8 of the first schedule to the Act). Likewise an industry engaged in the manufacture of synthetic rubber alone will fall within entry 13 of the first schedule to the Act. Therefore, the contention of the respondents that the petitioner's factory falls within entry 13 of the first schedule to the Act, is plainly untenable and I overrule the said contention. 9. In the view that I have taken, the stand taken by the respondents in Ext.P5, Ext.R1 and in the counter affidavit that the manufacturing process in the petitioner's factory is a hazardous process as defined in Section 2(cb) of the Act, thereby attracting Rules 81 A1 to 81 AO of the Rules framed and issued under Section 41B and Section 41C of the Act is misconceived. In my opinion, the manufacturing process in the petitioner's factory cannot be termed a hazardous process, since the process or activity in the petitioner's factory is not in relation to an industry specified in the first schedule to the Act. As stated earlier, the petitioner's factory is not a factory, which is engaged in the manufacture or production of synthetic rubber. Though it OP 7323/98 -: 18 :- was contended by the learned Government Pleader that entry 13 in the first schedule to the Act reads as Rubber (Synthetic Industries) on verification, it was noticed that entry 13 really reads as Rubber (Synthetic) Industries. Since entry 13 of the first schedule to the Act takes in only industries engaged in the manufacture of synthetic rubber and not a factory engaged in the manufacture of rubber goods, which uses synthetic rubber also as a raw material, the stand taken by the respondents in Ext.P5, Ext.R1 and in the counter affidavit that the petitioner has to provide an Occupational Health Centre in its factory as required by and in terms of Rule 81 AJ of the Rules is unsustainable in law. Ext.P5, in so far as it directs the petitioner to provide an Occupational Health Centre in its factory in terms of Rule 81 AJ of the Rules, is therefore liable to be quashed. 10. I shall now consider whether Rule 90(5) of the Rules enables the Chief Inspector of Factories to exempt the petitioner's factory from providing an ambulance room as stipulated in Section 45(4) of the Act. Section 45(4) of the Act reads as follows: "(4) In every factory wherein more than five OP 7323/98 -: 19 :- hundred workers are ordinarily employed there shall be provided and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed and those facilities shall always be made readily available during the working hours of the factory." (Emphasis supplied) It is evident from a reading of Section 45(4) of the Act that an ambulance room has to be provided and maintained in every factory wherein more than 500 workers are ordinarily employed. In the petitioner's factory, 1254 workers are admittedly employed and therefore Section 45(4) of the Act applies with full force. Section 45(4) of the Act provides that the size of the ambulance room, the equipment therein, the medical and nursing staff to be deployed, etc., shall be such, as may be prescribed. The term "prescribed" is defined in Section 2(p) of the Act to mean, prescribed by the rules made by the State Government under the Act. Rule 90 of the Rules framed by the State Government under the Act sets out the details regarding the medical/nursing staff, the size of the ambulance room, the equipment, etc. to be provided in the ambulance room. Rule 90 OP 7323/98 -: 20 :- of the Rules reads thus: "90. **Ambulance room:** - (1) Every ambulance room shall be under the charge of at least one whole-time qualified medical practitioner (hereinafter referred to as medical officer) assisted by at least one qualified nurse or dresser-cum-compounder and one nursing attendant in each shift: Provided that where a factory works in more than one shift, the Chief Inspector, if he satisfied that on account of the size of the factory, nature of hazards or frequency of accidents, it is not necessary to employ a whole time medical officer for each shift separately, may, with the previous approval of the State Government, grant exemption from the provisions of this sub-rule and permit employment of only one whole-time medical officer for more than one or all shifts, subject to the conditions that- (a) there shall be no relaxation in respect of nursing staff; and (b) the medical officer is readily available on call during the working hours of the factory. (2) There shall be displayed in the ambulance room a notice giving the name, address and telephone number of the Medical Practitioner in charge. The name of the nearest hospital and its telephone number shall also be mentioned OP 7323/98 -: 21 :- prominently in the said notice. (2A) No medical officer shall be required or permitted to do any work which is inconsistent with or detrimental to his responsibilities under this rule. (3) The ambulance room shall be separate from the rest of the factory and shall be used only for the purpose of first-aid treatment and rest. It shall have a floor area of at least 24 sq. metres and smooth hard and impervious walls and floors shall be adequately ventilated and lighted by both natural and artificial means. There shall be atleast one latrine and urinal of sanitary type attached to the ambulance room. Adequate supply of wholesome drinking water shall be laid on and the room shall contain at least:- (i) A glazed sink with hot and cold water always available. (ii) A table with a smooth top at least 180 cms. x 105 cms iii) Means for sterilising instruments. iv) A couch. - (v) Two stretchers. - (vi) Two buckets or containers with close fitting lids. - (vii) Two rubber hot water bags. - (vii) A kettle and spirit-stove or other suitable OP 7323/98 -: 22 :- means of boiling water. (ix) Twelve plain wooden splints 900 mm. x 100 m.m. x 6mm. (x) Twelve plain wooden splints 350 mm. x 75 mm. x 6 mm. (xi) Six plain wooden splints 250 mm. x 50 mm. x 12 mm. (xii) Six woolen blankets. (xiii) Three pairs artery forceps. (xiv) One bottle of spiritus Ammoniae Aromaticus (120 ml) (xv) Smelling salts (60 gms.) (xvi) Two medium size spongers. (xvii)Six hand-towels. (xviii) Four "Kidney" trays. (xix) Four cakes of toilet, preferably antiseptic soap. (xx) Two glass tumblers and two wine-glasses. (xxi) Two clinical thermometers. (xxii) Tea-spoons-Two. (xxiii) Graduated (120 ml.) measuring glassTwo. (xxiv) Minim measuring-glass-Two. (xxv) One wash bottle (1000 cc.) for washing eyes. (xxvi)One bottle (one litre) carbolic lotion 1 in OP 7323/98 -: 23 :- 20. (xxvii) Three chairs. (xxviii) One screen. (xxix) One electric hand torch. (xxx) Four first-aid boxes or cup-boards stocked to the standards prescribed under C of rule 63. (xxxi) An adequate supply of anti-tetanus toxoid. (xxxii) injections-Morphia, Pethidine, Atropin, Adrenaline, Coramine Novacom-Six each. (xxxiii) Coramine liquid (6) ml. (xxxiv) Tablets-Antilistaminic, Antispasmodic (25 each). (xxxv) Syringes with needle-2 cc., 5cc., 10cc., 50 cc. (xxxvi) Surgical Scissors-Three. (xxxvii) Needle holder. (xxxviii) Suturing needles and materials. (xxxix) Dissecting forceps-Three. (xl) Dressing forceps-Three. (xli) Scalpels-Three. (xlii) Stethoscope-One. (xliii) Rubber bandage-Pressure bandages. (xliv) Oxygen Cylender with necessary attachments. OP 7323/98 -: 24 :- (4) The occupier of every factory to which these Rules apply shall for the purpose of removing serious cases of accident or sickness, provide in the premises and maintain in good condition a suitable conveyance unless he has made arrangements for obtaining such a conveyance from a hospital. (5) The Chief Inspector of Factories may, by an order in writing exempt any factory from the requirements of this rule, subject to such condition as he may specify in that order, if a hospital, ambulance room or dispensary is maintained at or near the factory and such arrangements are made as to ensure the immediate treatment of all injuries to workers occurring within the factory and for providing rest to the injured workers." (Emphasis supplied) 11. The bone of contention is whether Rule 90(5) of the Rules enables and empowers the Chief Inspector of Factories to exempt any factory to which Section 45(4) of the Act applies from providing an ambulance room or whether the exemption can only be from the requirements of Rule 90 and not from providing an ambulance room itself as stipulated in Section 45(4) of the Act. The learned Senior Counsel appearing for the petitioner OP 7323/98 -: 25 :- relies on the decision of the Apex Court in **Punjab Sikh Regular Motor Service, Moudhapara, Raipur** v. **Regional Transport Authority, Raipur & another** - A.I.R. 1966 S.C. 1318 in support of his contention. The facts in **Punjab Sikh Regular Motor Service, Moudhapara, Raipur** v. **Regional Transport Authority, Raipur & another** - A.I.R. 1966 S.C. 1318 (supra) that arose from proceedings under the Motor Vehcles Act, 1939 are as follows: A stage carriage permit granted to the appellant therein for an inter-regional route that was valid upto 5.8.1963 was renewed for a period of three years by an order of renewal passed on 7.8.1963 by the Regional Transport Authority, Bilaspur. The appellant thereafter applied to the Regional Transport Authority, Raipur for renewal of the grant of counter signature on the renewed permit. The renewal was objected to by a rival operator on the ground that the application was not made within the time prescribed. Though the Regional Transport Authority, Raipur held that the application for renewal of the grant of counter signature was not made within the time prescribed by Rule 62 of the Central Provinces and Berar Motor Vehicles Rules, 1940 it renewed the grant of counter signature, OP 7323/98 -: 26 :- as it was filed within six weeks of the date on which the order renewing the permit was issued by the Regional Transport Authority, Bilaspur. The rival operator challenged the said order in a writ petition filed in the High Court of Madhya Pradesh. The High Court took the view that as the application for renewal of the counter signature was not made within the period prescribed in Section 58(2) of the Motor Vehicles Act, 1939, it was time barred. The order granting counter signature was accordingly quashed. The aggrieved stage carriage operator carried the matter in appeal to the Apex Court. 12. Section 63(1) of the Motor Vehicles Act, 1939 which dealt with inter-regional and inter-state permits reads as follows: "(1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region, shall not be valid in any other region, unless the permit has been countersigned, by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned:" On the terms of Section 63(1) of the Motor Vehicles Act, 1939 a OP 7323/98 -: 27 :- permit granted by the Regional Transport Authority of any one region will not be valid in any other region, unless that permit is counter signed by the Regional Transport Authority of that other region. Rule 63 of the Central Provinces and Berar Motor Vehicles Rules, 1940 enabled the authority which granted renewal of an inter-regional permit to grant the counter signature also, so as to make it valid for the other region covered by the route. Therefore, even though under Section 63(1) of the Motor Vehicles Act, 1939 the power to counter sign the inter-regional permit issued by the Regional Transport Authority, Bilaspur was with the Regional Transport Authority of Raipur, within whose jurisdiction a part of the route is situate, the effect of Rule 63 was that the power to counter sign the permit came to be vested in the authority, which granted the renewal of the permit. In that view of the matter and taking note of the words "Except as may be otherwise prescribed," in the opening part of sub-section (1) of Section 63 of the Motor Vehicles Act, 1939, the Apex Court held that the Parliament has made the said provision subject to the rules framed by the State Government under Section 68 of the Motor Vehicles Act, 1939 and therefore Rule 63 must supersede OP 7323/98 -: 28 :- the direction contained in Section 63(1) of the Motor Vehicles Act, 1939. It was held that the Regional Transport Authority, Raipur had no power and was not competent to renew the grant of counter signature in the renewed permit. 13. Section 45(4) of the Act no doubt does not stipulate that "except as may be otherwise prescribed", in every factory wherein more than 500 workers are ordinarily employed there shall be provided and maintained an ambulance room. The Parliament has left it to the State Government to prescribe only the details regarding the size of the ambulance room, the number of medical and nursing staff, the equipment and such other details. By Rule 90 of the Rules, the State Government has prescribed the size of the ambulance room, the facilities to be made available, the medical and nursing staff to be deployed, etc. On a reading of Rule 90 of the Rules, it can be seen that sub-rules (1), (4) and (5) thereof provide for grant of exemption in certain contingencies. Under the proviso to sub-rule(1) of Rule 90, having regard to certain parameters, the Chief Inspector of Factories can grant exemption from the provisions of sub-rule(1) of Rule 90 and permit the employment of only one whole-time OP 7323/98 -: 29 :- medical officer for more than one or all the shifts. Under sub-rule (4) of Rule 90, the occupier of every factory is bound to maintain a suitable conveyance to remove seriously injured workers to other hospitals for treatment unless he has made arrangements for obtaining such a conveyance from a hospital. Rule 90(5) of the Rules empowers the Chief Inspector of Factories to exempt any factory from the requirements of Rule 90 if a hospital, ambulance room or dispensary is maintained at or near the factory and such arrangements are made as to ensure the immediate treatment of all injuries to workers occurring within the factory and for providing rest to the injured workers. 14. The wordings of sub-rule (5) of Rule 90 of the Rules are very clear to the effect that the exemption can only be from the requirements of Rule 90. The Parliament has not made provision in Section 45(4) of the Act subject to the rules framed by the State Government and therefore Rule 90 of the Rules does not supercede the direction contained in Section 45(4) of the Act. The fact situation in the **Punjab Sikh Regular Motor Service, Moudhapara, Raipur** v. **Regional Transport Authority, Raipur & another** - A.I.R. 1966 S.C. 1318 was entirely OP 7323/98 -: 30 :- different. As noticed by the Apex Court in the said decision, Section 63(1) of the Motor Vehicles Act, 1939 was subject to the rules framed by the State Government under the Motor Vehicles Act, 1939. On the wordings of Section 45(4) of the Act, the contention of the learned Senior Counsel for the petitioner that its enforcement is subject to the rules framed under the Act and therefore, the Chief Inspector of Factories is competent to exempt any factory from providing an ambulance room, is in my opinion, plainly untenable. The Parliament has while enacting Section 45(4) of the Act, left to the State Government, only the power to frame rules regarding the size of the ambulance room, the equipment to be made available and the Medical/Nursing staff to be deployed therein. On the terms of Section 45(4) of the Act, the State Government could not have framed a rule in exercise of the power conferred on it under Section 112 of the Act, conferring on any authority the power to exempt any factory from providing and maintaining an ambulance room. In my opinion, Rule 90(5) of the Rules empowers the Chief Inspector of Factories to exempt any factory from the requirements of Rule 90 only and not from the mandate of Section 45(4) of the Act. Rule OP 7323/98 -: 31 :- 90 of the Rules does not in my opinion, supersede Section 45(4) of the Act. 15. In **Alembic Chemical Works Co. Ltd** . v. **The** **Workmen** - AIR 1961 S.C. 647, the Apex Court held that the Factories Act, 1948 being a welfare legislation, having regard to the policy and object of the Act, where two constructions are possible, the construction, which furthers the policy of the Act and is more beneficial to the employees in whose interest the Act has been passed should be adopted. It was held that in construing the provisions of a welfare legislation, the courts should adopt a beneficent rule of construction. In **Bhikusa Yamasa Kshatriya (Pri) Ltd.** v. **Union of India and another** - AIR 1963 S.C. 1591, the Apex Court held as follows: "9. The Factories Act, as the preamble recites is an Act to consolidate and amend the law regulating labour in factories. The Act is enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards. For that purpose it seeks to impose upon the owners or the occupiers certain obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conductive to OP 7323/98 -: 32 :- their health and safety. The Act requires that the workers should work in healthy and sanitary conditions and for that purpose it provides that precautions should be taken for the safety of workers and prevention of accidents. Incidental provisions are made for securing information necessary to ensure that the objects are carried out and the State Government are empowered to appoint Inspectors, to call for reports and to inspect the prescribed registers with a view to maintain effective supervision. The duty of the employer is to secure the health and safety of workers and extends to providing adequate plant, machinery and appliances, supervision over workers, healthy and safe premises, proper system of working and extends to giving reasonable instructions. Detailed provisions are therefore made in diverse chapters of the Act imposing obligations upon the owners of the factories to maintain inspecting staff and for maintenance of health, cleanliness, prevention of overcrowding and provision for amenities such as lighting, drinking water, etc. etc. Provisions are also made for safety of workers and their welfare, such as restrictions on working hours and on the employment of young persons and females, and grant of annual leave with wages. Employment in a manufacturing process was at one OP 7323/98 -: 33 :- time regarded as a matter of contract between the employer and the employee and the State was not concerned to impose any duties upon the employer. It is however now recognised that the State has a vital concern in preventing exploitation of labour and in insisting upon proper safeguards for the health and safety of the workers. The Factories Act undoubtedly imposes numerous restrictions upon the employers to secure to the workers adequate safeguards for their health and physical well being. But imposition of such restrictions is not and cannot be regarded, in the context of the modern outlook on industrial relations, as unreasonable." ## 16. In **Consumer Educational & Research Centre &** **others** v. **Union of India & others** - A.I.R. 1995 S.C. 922, the Apex Court held as follows: "26. The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to breadwinning to himself and his dependents should not be at the cost of the health and vigour of the workman. OP 7323/98 -: 34 :- Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, public or private, is enjoined to take all such action which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Art. 21. The right to human dignity, development of personality, social protection, right to rest and leisure are OP 7323/98 -: 35 :- fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts. 38 and 39 of the Constitution. Facilities for medical care and health against sickness ensures stable manpower for economic development and would generate devotion to duty and dedication to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen. 27. Therefore, we hold that right to health, medical aid to protect the health and vigour of a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related to Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person." 17. In **J.K. Industries Ltd. and others** v. **Chief Inspector of Factories and Boilers and others** - (1996) 6 S.C.C. 665, the Apex Court held thus: OP 7323/98 -: 36 :- "14. The 1948 Act is an act to consolidate the law regulating factories. It is a piece of social welfare legislation enacted primarily with the object of protecting workmen employed in factories against industrial and occupational hazards. It seeks not only to ensure that workers would not be subjected to long hours of strain but also that employees should work in safe, healthy and sanitary conditions and that adequate precautions are taken for their welfare and safety. The stringent provisions relating to the obligations of the occupiers or managers with a view to protect workers and to secure to them employment in conditions conducive to their health and safety indicate the broad purpose of the Act. The Act and the Rules made thereunder impose numerous restrictions upon the occupier or manager of the factory to ensure to workers adequate safeguards for their health and physical well-being and to secure to them safe and healthy conditions at the place of work...." ## 18. In **S.M.Datta** v. **State of Gujarat and another** - (2001) 7 S.C.C. 659, the Apex Court held thus: "14. Before however, adverting to the impact of the statutory provisions, certain basic features about the Factories Act, 1948 ought to be noticed at this OP 7323/98 -: 37 :- juncture. The Act has been engrafted in the statutebook as an Act to consolidate and amend the law regulating the labour in factories. Needless to record that the establishment of cotton mills in Bombay in 1851 and the jute mill at Rishra in Bengal marked the beginning of factory system in India and it is only thereafter that the factories grew steadily both in Bombay and in Bengal but the conditions prevailing in these factories were inhuman, both as regards working hours, welfare measures and wages. Availability of labour was plenty and as such became rather cheap and in order to eradicate the same, a Commission was appointed in 1875 to investigate the conditions of labour in factories and on the basis of its recommendations, the first Factories Bill, 1880 was introduced in the legislature, subsequently however, the Bill was adopted as an Act. No sooner however, the Act was passed, agitation started afresh in Bombay and other places and on the basis of the report of a Committee, the Indian Factories (Amendment) Act of 1891 was passed. The provisions of the amended Act were also inadequate and a somewhat revised Bill was subsequently introduced in 1909 and the same was passed as a statute in 1911. Though the Factories Act, 1911 was amended from time to time but it could not meet the OP 7323/98 -: 38 :- required growing activities in the country, especially after the Second World War by reason wherefor, the Factories Act, 1948 was engrafted in the statute book where emphasis had been on the welfare of the workers. Factory Inspectors have been placed with very heavy responsibility on them and provisions have been made in the statute empowering the State Government to make and frame rules for the purposes of meeting the local exigencies of situation. The Act undoubtedly is thus a welfare legislation and cannot but be termed to be a complete code in itself...." 19. Rules 89 and 90 of the Rules have been framed to give effect to the provisions of Section 45 of the Act which stipulates inter alia that in every factory where more than 500 hundred workers are ordinarily employed there shall be provided and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed. Section 45(4) of the Act further stipulates that these facilities shall always be made readily available during the working hours of the factory. As noticed by the Apex Court, an industry, public or private, is OP 7323/98 -: 39 :- enjoined to take all such action which will promote the health, strength and vigour of the workmen during the period of employment and leisure and even after retirement. The right to health and medical care has been held to be a fundamental right of the workmen under Article 21 of the Constitution of India. Medical facilities to protect the health of the workers have been held to be fundamental and human rights of the workmen employed in factories. Section 45(4) of the Act and Rule 90 of the Rules have been enacted and brought into force to ensure immediate medical attention to factory workers who may be injured in accidents at the work place. It is a welfare measure intended to safeguard the fundamental and human rights of the workmen employed in factories. On the terms of Section 45(4) of the Act, the petitioner has a statutory duty and a constitutional obligation as held by the Apex Court, to provide for medical aid to the workmen employed in its factory at Vadavathoor. The Act does not contemplate exemption from the requirements of Section 45. Rule 90 of the Rules does not empower the respondents to exempt the petitioner's factory from complying with Section 45(4) of the Act. The respondents are therefore OP 7323/98 -: 40 :- justified in directing the petitioner to provide and maintain an ambulance room in its factory. The challenge to Ext.P3, therefore, has to necessarily fail. 20. In the result, I allow the original petition in part and quash Ext.P5 in so far as it directs the petitioner to provide an Occupational Health Centre in its factory in terms of Rule 81AJ of the Kerala Factories Rules, 1957. The other reliefs prayed for by the petitioner are declined. The petitioner shall provide and maintain an ambulance room as prescribed by the Act and the Rules in its factory. Steps in that regard shall be initiated forthwith and completed expeditiously. The original petition is disposed of as above. No costs. P.N.Ravindran, Judge. ess 24/3