Chinubhai Haridas v. The State of Bombay (1959)

It is the case to use when a welfare statute is said to impose an absolute duty, and it teaches the limit of a purposive reading: the policy of protecting workers does not authorise a court to enlarge the obligation the section actually casts, or to move the obligation from the person on whom the statute places it to somebody else.

The High Court had read the provision at its widest — if the occupier fails to prevent the entry, he permits the entry. The Supreme Court held that this went too far on the other side, and it did so by reading the sub-section in the context of the words used therein and alongside the sections that work out its effect.

It is also a model of the technique of reading a provision in two parts, because s. 36(4) was held to contain one duty that arises only on an occasion and another that is continuous and absolute.

The appellant was the occupier of a mill which was a factory as defined in the Act. There was a pit in the factory in which dangerous fumes were likely to be present. It was securely covered as required by s. 33(1), and no one was expected to go down into it for the normal work of the factory, as it was worked by gadgets fixed nearby above the ground.

Something went wrong with the machinery inside the pit. A labourer was asked to go down and did so without wearing suitable breathing apparatus and without a belt securely attached to a rope whose free end should have been held by a person standing outside. He was overcome by poisonous gases and died. Four others went down after him, without breathing apparatus, and died one after the other. On the Inspector of Factories making enquiries it was 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.

The occupier was prosecuted for breach of s. 36(3) and (4), and he took advantage of s. 101 to file a complaint against the manager and the engineer.

The magistrate acquitted. He held that no offence under s. 36(3) was made out because no permission, express or implied, to enter the pit had been proved; and that no offence under s. 36(4) was made out because, no permission having been granted to anybody to enter the pit, it was not necessary to keep the apparatus near the pit or anywhere else in the factory.

The High Court took the opposite view on both. On sub-section (3) it held that no positive act of granting permission was needed: "If the occupier or manager 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." It supported this by the scheme of the Act as welfare legislation, requiring an employer to take 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 of the factory." On sub-section (4) it held that the apparatus must be kept immediately available near the confined space at all times, and for the benefit even of a person entering without permission.

Sub-section (3): who is prohibited. The State argued that the words "be permitted to enter" cast an absolute duty on the occupier to prevent entry, and that the burden lay on the employer to show that any entry was against his instructions — carried, in argument, to the length of a worker who entered the pit in order to commit suicide. Attention was drawn to other sections using similar words.

The Court declined to reason from those sections, pointing to "one vital difference": s. 36(3) prohibits the worker from entering the pit, while those other sections contain no such prohibition against the worker and cast the entire duty on the employer. Section 36(3) therefore had to be construed in the context of its own words. It begins by prohibiting any person from entering such a space, so the primary prohibition is on the person working in the factory and on others.

The effect of that prohibition is worked out elsewhere in the Act. Under s. 97(1) a worker who contravenes a provision imposing a duty on workers is punishable with fine; under s. 97(2), where a worker is convicted under sub-section (1), the occupier or manager is not to be deemed guilty in respect of that contravention unless it is proved that he failed to take all reasonable measures for its prevention. Reading s. 36(3) with s. 97, the prohibition on the worker is absolute, and the burden is on the prosecution to prove that the occupier or manager had not taken all reasonable steps to prevent the entry — not on the occupier to prove that he had.

The meaning of the words. Against that background, the words "be permitted to enter" do not cast an absolute duty on the employer to prevent entry, and the mere fact that a person has entered does not by itself prove that he had been permitted to enter. Equally, no positive act of obtaining or granting permission is required; the court must ask whether, on the facts and circumstances of the particular case, it is reasonable to infer that the entry was with permission, express or implied. Both courts below had erred — the magistrate by requiring a positive act, the High Court by going too far the other way.

Sub-section (4): one provision, two duties. The first part requires the apparatus to be kept ready for instant use beside the confined space which any person has entered. That duty arises only when a person is about to enter, obviously with the permission of the occupier or manager; the sub-section does not contemplate that the apparatus shall always be kept ready near the space whether there is any occasion to enter it or not.

The second part requires periodical examination and certification of the apparatus and the training of a sufficient number of persons in its use — which, the Court reasoned, shows that the apparatus must always be available in the factory, since there could be no possibility of periodical examination or of training unless it were. The duty cast by sub-section (4) is absolute in both its parts; what differs is the occasion on which each part operates.

Section 36(3) does not cast an absolute duty on the occupier to prevent entry, and mere entry does not by itself prove permission; the primary duty is the prohibition on the worker, and the occupier is liable where his permission, express or implied, can be inferred from the facts and circumstances. Section 36(4) casts an absolute duty to see that the apparatus is always available in the factory, periodically examined and certified fit for use, with a sufficient number of persons trained in its use, but there is no duty to keep the apparatus beside the pit at all times; that duty arises when a person is about to enter with the occupier's permission.

The Court expressly refrained from saying anything on the facts, since the case was going back for retrial, and the appeal was dismissed.