As per Section 87, any manufacturing process or operation, carried on in a factory, can be declared to be dangerous, if it exposes persons employed in it to a serious risk of bodily injury, poisoning or disease

Excerpt:

Explosives, including industrial explosives and detonators and fuses, is included as one of the industries involving hazardous processes, under the general heading “Chemical Industries” at Serial No.17 in the First Schedule to the Factories Act, 1948.

As per Section 87, any manufacturing process or operation, carried on in a factory, can be declared to be dangerous, if it exposes persons employed in it to a serious risk of bodily injury, poisoning or disease. But this declaration is to be in the form of Rules made under Section 87.

 

The hardship caused to the Society at large, due to the failure to regulate a business or professional venture, would be much more than the hardship caused to the industry by regulating it.

Madras High Court
The Tamil Nadu Fireworks And … vs The Principal Secretary To … on 3 April, 2013
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 03-04-2013

Coram :

The Honourable Mr.Justice V.RAMASUBRAMANIAN

Writ Petition (MD) No.7156 of 2012
And
M.P. No.1 of 2012






The Tamil Nadu Fireworks and Amorces Manufacturers Association,
Represented by its President
S.S.Vijayakumar, 'TANFAMA Centre',
442, Kamarajar Road,
Sivakasi-626 123.							.. Petitioner

Vs

1.The Principal Secretary to Government,
   Department of Labour and Employment,
   Fort St. George,
   Chennai-600 009.

2.The Deputy Chief Controller of Explosives,
   Petroleum and Explosives Safety Organisation (PESO),
   FRDC Complex,
   Sivakasi West-626 124.						.. Respondents






	Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records relating to the impugned Gazette Notification dated 9.11.2011 of the first respondent herein published in Part III-Section 1(a) pursuant to the G.O.Ms.No.70 dated 26.8.2011 and quash the same as illegal.




	For Petitioner			:  	Mr.M.Sekar


	For Respondent-1		:  	Mr.K.Chellapandian,
				   		Additional Advocate General assisted by
				   		Mr.M.Murugan, Government Advocate.


	For Respondent-2		:  	Mr.K.K.Senthilvel,
				   		Assistant Solicitor General.





O R D E R

The petitioner is an Association of Manufacturers of Fireworks and Crackers. It is registered as an Association under the Societies Registration Act, 1860, way back in the year 1970.

2. The petitioner has come up with the above writ petition, challenging an amendment issued to the Tamil Nadu Factories Rules, 1950 by the State Government under G.O.Ms.No.70, Labour and Employment Department, dated 26.8.2011, published in the Government Gazette on 9.11.2011.

3. I have heard Mr.M.Sekar, learned counsel for the petitioner, Mr.K. Chellapandian, learned Additional Advocate General assisted by Mr.M.Murugan, learned Government Advocate for the first respondent and Mr.K.K.Senthilvel, learned Assistant Solicitor General for the second respondent.

4. By G.O.Ms.No.184, Labour and Employment Department, dated 29.12.2009 published in the Tamil Nadu Government Gazette dated 3.2.2010, the State Government published the draft of an amendment to the Tamil Nadu Factories Rules, 1950, proposed to be made in exercise of the powers conferred by Sections 87 and 112 of the Factories Act, 1948. Persons who are likely to be affected by the proposed amendments, were invited to lodge their objections within a period of 45 days, to the proposal. It appears that the petitioner-Association filed its objections to the Principal Secretary to Government, Labour and Employment Department, on 10.3.2010.

5. After more than about 1-1/2 yers, the Government issued the impugned order G.O.Ms.No.70, dated 26.8.2011 and published the same in the Government Gazette on 9.11.2011. Aggrieved by the amendments so made, the petitioner is before this Court.

6. Before considering the objections of the petitioner to the amendments, it is necessary to take note of a few facts and the nature of the amendments made. They are as follows:-

(i) Rule 95 of the Tamil Nadu Factories Rules, 1950, lists out, certain operations to be declared as dangerous operations, when carried on in a factory. The list comprises of 32 types of operations. “Fireworks Manufactories and Match Factories” is listed at Serial No.24 of the said list under Rule 95(1).

(ii) About 32 Schedules are annexed to Rule 95. Each of those Schedules are relatable to one of the items listed as dangerous operations under Rule 95 (1).

(iii) Since fireworks manufactories and match factories are listed at Serial No.24 under Rule 95(1), Schedule XXIV contains the prescriptions relating to these types of factories. The prescriptions are categorised under 13 paragraphs in Schedule XXIV. Paragraph-10 of Schedule XXIV contains 12 prescriptions.

(iv) By the impugned amendment, 17 more prescriptions are sought to be inserted in paragraph 10 of Schedule XXIV and this is what the petitioner is aggrieved against.

7. The existing 12 prescriptions under paragraph 10 of Schedule XXIV are assigned numbers from item No.(a) to (l). By the impugned amendment, 17 items are sought to be inserted, as item Nos.(m) to (z) and (aa), (ab) and (ac).

8. Fortunately, the learned counsel for the petitioner submitted, at the time of hearing, that the petitioner is not opposing all the 17 items inserted by the impugned amendment. The opposition of the petitioner is only to a few of those 17 items now inserted by the impugned amendments.

9. In particular, the opposition of the petitioner is to the items inserted under the alphabets (n), (p), (q), (r), (s), (t), (u), (v) and (ac). It may be useful to extract these items to which the petitioner has objections, since the objection of the petitioner revolves around certain factual issues also. Therefore, the items for which the petitioner has objections are listed as follows:-

“(n) Workers aged above 55 years shall be employed only in non-explosive areas.

(p) Work benches and tables shall be provided for mixing and filling operations.

(q) Blast walls shall be provided around the drying platform at a distance of two metres away from the drying platform. The height of the blast wall shall be at least one foot more than that of the height of the drying platform.

(r) In every Fireworks Factory, there shall be appointed a Supervisor with minimum qualification of B.Sc., (Chemistry) or Diploma in Chemical Engineering or its equivalent. He shall be fully conversant with the process of manufacture of fireworks and the associated hazards. These Supervisors shall undergo special training of fireworks safety as approved by the Chief Inspector of Factories. Number of Supervisors shall be at the rate of one for every fifty workers. Manufacture of fireworks shall be carried out under the supervision of such Supervisors.

(s) Factories which make fancy crackers shall have.–

(i) separate colour pellet machine shed;

(ii) separate colour pellet drying shed; and

(iii) separate transit room for storing colour pellets.

(t) Not more than one manufacturing activity of any one item of crackers shall be allowed or required to be done in any working shed at a time.

(u) The workers involved in mixing and filling operations shall have an educational qualification of at least Higher Secondary Course.

(v) The drying platform meant for Rockets and Fire Works of flying nature shall be provided with a temporary roof of a strong aluminium mesh cover resting on the baffle walls, for protection from direct sunlight.

(ac) No manufacturing activity shall be carried on in Fireworks factory between 6.00 p.m., and 6.00 a.m.”

10. The grounds on which the petitioner challenges the impugned amendments can be briefly summarised as follows:-

(i) that there is repugnancy between the requirements now prescribed by the impugned amendment and the requirements prescribed by the Explosives Rules 2008;

(ii) that the State Government had already issued a notification categorising the fireworks manufactories as hazardous industry, thereby shifting these industries from the category of “dangerous operations” in terms of Section 87 of the Factories Act, 1948 and hence the prescriptions introduced under Rule 95, cannot be applied to them;

(iii) that the Department of Explosives has Experts and hence their competence to stipulate standards is much higher than that of the officials of the Labour Department, who are only generalists and not specialists;

(iv) The impugned amendment has not been laid before the State Legislature as mandated by Section 115 of the Factories Act, 1948; and

(v) that under Section 5 of the Explosives Act, 1884, the rule making power vests only with the Central Government and hence the State Government is not competent to lay the Rules.

Now I shall consider these contentions one after another.

(I) REPUGNANCY:

11. The Explosives Act, 1884 is a colonial legislation. After the enactment of the Constitution, explosives was included along with arms, firearm and ammunition under Entry-5 in list-I (Union List). The Act was adopted by the independent India.

12. Similarly, the Factories Act, 1948 is also an Act that came into force before the adoption of the Constitution. In the Constitution, “Welfare of Labour including conditions of work, Provident Funds, Employers liability, Workmen’s Compensation, Invalidity and Old-age Pensions and Maternity benefits” were included at Entry No.24 of List-III (Concurrent List). Similarly, Factories was included as Entry No.36 of List III of the VII Schedule.

13. Therefore, it will be clear that the Factories Act, 1948 is also a law deemed to have been made by the Parliament and it is a law made subsequent to the Explosives Act, 1884. Just as the Explosives Act, 1884 conferred powers upon the Central Government under Section 7 to issue Rules, the Factories Act, 1948 conferred powers both upon the Central Government and upon the State Governments to make Rules. Under the Factories Act, 1948, the power to make Rules is conferred, under each Chapter separately.

14. Therefore, the competence of the State Government to issue Rules, cannot be questioned, as the same can be traced to the statutory provisions themselves. The only area where a challenge can be made is, where a Rule made by the Central Government under the Explosives Act, is directly in conflict with a Rule made by the State Government under the Factories Act, 1948. It is too fundamental to point out that an argument of repugnancy can be raised only in cases where there is a direct conflict between two provisions, enacted by two different Governments/ Authorities, in exercise of their rule making power.

15. Mr.M.Sekar, learned counsel for the petitioner pointed out that the Rules issued under the Explosives Act, are in conflict with the amendments now proposed, in respect of the following:-

(i) Rule 10(7) of the Explosives Rules, 2008, prohibits the employment of persons below the age of 18 years, persons who are in a state of intoxication and persons who are mentally or physically challenged. There is no restriction regarding upper age limit, but the impugned amendment prohibits the employment of persons above 55 years of age, in explosive areas. Rule 11(1) of the Explosives Rules, 2008, requires all operations associated with the handling of explosives to be carried out under the supervision of a competent person. Sub Rules (2) and (4) of Rule 11 mandates that explosives shall not be manufactured in any building except under the supervision of a competent person and that persons holding Foreman’s Certificate shall be competent to be employed as such. Sub Rule (3) states that professionally qualified persons with a degree or diploma in Engineering or a graduate in Science with 5 years of experience should be appointed in a factory for manufacturing explosives of Class 1 with the capacity exceeding 150 tons per annum or explosives of Classes 2, 3 or explosives accessories. None of these prescriptions relates to upper age limit. Therefore, according to the learned counsel for the petitioner, the prescription contained in the impugned amendment, permitting the employment of persons above the age of 55 years, only in non-explosive areas is a repugnancy.

(ii) Rule 99 of the Explosives Rules, indicates that the licenses and certificates for specific purposes are to be granted by the authorities specified in Part 1 of Schedule IV. Rules 103 and 107 of the Explosives Rules prescribe the procedure for grant of licenses and certificates. Part 1 of Schedule IV indicates that the license to manufacture fireworks or gunpowder or both exceeding 500 kilo grams at any one time shall be the Chief Controller or Controller of Explosives authorised by the Chief Controller. This license is issued in Form LE-1. The Foreman’s Certificate is issued in Form LE-11 by the Controller of Explosives. Form 4 prescribes 2 sets of “CONDITIONS OF VARIOUS LICENSES”. In SET-1, the conditions of license to manufacture fireworks or gunpowder or both not exceeding 15 kilo grams at any one time, in respect of Article 1(a) are prescribed. In SET-2, the conditions of license to manufacture fireworks in respect of Articles 1(b) and (c) granted by the Chief Controller or Controller of Explosives, are listed. These conditions contain minute details with regard to the place of storage of ingredients, number of persons to be allowed at any time, the working hours for the manufacturing activity, the works to be carried out in the buildings etc. Some of these conditions stipulated in SET-1 and SET-2 of Part 4 of Schedule V to the Explosives Rules, 2008, are as follows:-

“(6) The building or receptacle in which explosive is kept shall be used only for the keeping of such explosive and for no other purpose whatsoever.

(9) The explosive shall be manufactured in rooms of lightly constructed one-storied building kept and used only for the purpose of such manufacture and separated from the storage place by a distance of 45 metres and separated from any dwelling house, other building, another licensed premises, highway, street, public thoroughfare or public place by a distance of 45 metres.

(10) The ingredients for the manufacture of gunpowder shall be kept in separate stores distinct from each other and separated by a distance of at least 45 metres from the place where gunpowder/fireworks is manufactured or stored as per above table.

(11) Not more than four persons shall be allowed at any one time in any one building or tent in which the explosive is being manufactured and only persons actually employed in manufacturing or superintending manufacture shall be allowed inside the place of manufacture.

(14) Manufacture shall only be carried on between sunrise and sunset and no smoking or lights shall be allowed in or near the place where explosives are being manufactured.

(15) No oils, paints, matches, lights, any article of a highly inflammable or explosive nature or liable to cause fire or explosion or any acids or similar substances shall be brought or kept in the licensed premises. No smoking shall be allowed inside the factory.

(20) If the licensing authority informs in writing, the holder of the license to execute any repairs or to make any additions or alterations to the licensed premises or machinery, tools or apparatus or carry out recommendations, which are in the opinion of such authority may pose unacceptable risk and so necessary for the safety of either on-site or off-site of the premises/persons, the holder of the license shall execute the recommendations and report compliance within the period specified by such authority.

(22) No person under 18 years of age and no person who is in a state of intoxication or of unsound mind or physically handicapped shall be employed in or allowed to enter the factory.

(23) No electronic appliances or instruments like mobile phones, pagers shall be allowed in or near the premises where explosives are manufactured, handled, stored and used.

(9) Manufacture shall only be carried in between sunrise and sunset and no lights shall be allowed in or near the place where fireworks are manufactured provided that nothing in this rule shall apply to handling/manufacture of fireworks during dark hours if proper illumination with flame and/or dust proof motors, light and fittings is provided in the area and the place is guarded.

(12) No activity other than those specified in license shall be carried out in the factory premises.

(15) If the licensing authority or a Controller of Explosives informs in writing, the holder of the license to execute any repairs or to make any additions or alterations to be licensed premises or machinery, tools or apparatus or carry out recommendations, which in the opinion of such authority may pose unacceptable risk and so necessary for the safety of either on-site or off-site of the premises or persons, the holder of the license shall execute the recommendations and report compliance within the period specified by such authority.

(19) Licensee shall appoint minimum one qualified foreman certified by the Controller of Explosives, for every 20 process buildings to supervise the manufacture of fireworks.

(21) No electronic appliances or instruments like mobile phones, pagers shall be allowed in or near the premises where explosives are manufactured, handled, stored and used.

(23) The doors of any process building shall not face each other. If doors of adjoining sheds face each other, a screen wall of 23 cm cement and brick should be provided at a distance of 1 to 3 m from the building and 0.5 m wider than the door opening on both sides and up to the height of the doors.

In the light of the above conditions contained in SET-1 and SET-2 in Part 4 of Schedule V of the Rules, it is contended by Mr.M.Sekar, learned counsel for the petitioner that (i) any prescription regarding buildings (ii) any prescription regarding the persons to be employed (iii) any prescription restricting the time of manufacturing activity to the time between sun rise and sun set and (iv) any prescription regarding installation of electrical appliances, would encroach into the field occupied by the Explosives Rules, 2008 and thus result in repugnancy. Therefore, the prescription contained in the impugned notification regarding the employment of persons above 55 years of age, the construction of blast walls, provision of work benches and tables, the employment of a Supervisor etc., are in conflict with the conditions of license stipulated under the Explosives Rules, 2008.

(iii) Schedule VII of the Explosives Rules, 2008, contains the specifications. Specification-1 relates to Explosives Manufacturing Factories other than that of fireworks. Specification-2 relates to magazines other than that of fireworks. Specification-3 relates to Fireworks Manufacturing Factory and Store House and Magazine for Fireworks or Safety Fuse. Under para 1.C of Specification-3 under Schedule VII, the specifications regarding the construction of blast wall are provided. Similarly, under para 1.D, the specifications regarding drying platform are provided. Para 1.A (b) and (c) contain specifications regarding blast wall around mixing/filling building. Therefore, it is the contention of the learned counsel for the petitioner that by the impugned notification, these specifications are sought to be tampered with.

16. But a careful perusal of Rules 10 and 11 of the Explosives Rules, 2008 and the various prescriptions contained in Schedules IV, V and VII under the Explosives Rules, 2008, would show that none of them is in conflict with the impugned amendment. The fact that the Explosives Rules, 2008, prohibits the employment of persons below the age of 18 years and those who are mentally or physically challenged, is no ground to contend that the prohibition of employment of persons above 55 years of age by the impugned notification, is in conflict. What is prescribed under the Explosives Rules, 2008, is only the minimum age limit for appointment and the two disqualifications for appointment. But the impugned notification prescribes the upper age limit and that too only for employment in explosive areas. In other words, what is prescribed by the impugned notification is only an additional specification. They are to be understood in addition to the specifications prescribed by the Explosives Rules, 2008. Since the State Government, admittedly, has a rule making power, their power to prescribe certain additional requirements or qualifications, cannot be doubted. The Explosives Rules, 2008, does not stipulate even the age of retirement of a person. Therefore, if the State Government prescribes the age of retirement, would it be possible for the petitioner to contend that such prescription goes contrary to the Explosives Rules, 2008 ? I do not think so.

17. Similarly, the prescription regarding buildings, the necessity to carry out repairs, number of persons to be employed, the time for carrying out manufacturing activity, prescribed in SET-1 and SET-2 in Part IV of Schedule V of the Explosives Rules, 2008, are only broad requirements. By the order impugned in the writ petition, the State Government has prescribed additional conditions. Unless the additional condition so prescribed goes completely contrary to what is prescribed by the Explosives Rules, 2008, there cannot be any repugnancy. Repugnancy would arise only when both prescriptions cannot stand together. Repugnancy would also arise when the fulfilment of the conditions stipulated under one set of Rules would result in a breach of the conditions prescribed in another set of Rules.

18. In the case on hand, the requirement regarding the time of manufacturing activity, the requirement for the construction of a blast wall, the requirement for having benches and tables etc., are not conditions, the fulfilment of which would lead to a breach of the conditions prescribed under the Explosives Rules, 2008. Therefore, the first contention that there is repugnancy is factually flawed. If there is any repugnancy, it is only in the imagination of the petitioner and not real.

II. DANGEROUS OPERATIONS VIS-A-VIS HAZARDOUS INDUSTRY:

19. The second contention of the learned counsel for the petitioner is that the State Government had already issued a notification categorising the manufactories of fireworks as hazardous industry, thereby shifting such manufactories from the category of “dangerous operations” in terms of Section 87 of the Factories Act, 1948 and hence the prescriptions introduced under Rule 95, cannot be applied to them.

20. A careful look at the provisions of the Factories Act, 1948, would show that till the year 1987, the Act did not contain the definition of either of these expressions “dangerous operations” or “hazardous process”. But by the Amendment Act 20 of 1987, Chapter IV-A was inserted in the Factories Act, 1948. This Chapter contains Sections 41-A to 41-H, providing inter alia for (i) the Constitution of Site Appraisal Committees (ii) compulsory disclosure of information by the occupier (iii) specific responsibility of the occupier in relation to hazardous processes (iv) power of Central Government to appoint Inquiry Committee (v) emergency standards (vi) permissible limits of exposure of chemical and toxic substances (vii) workers’ participation in safety management and (viii) right of workers to warn against imminent danger. Simultaneously, Section 87-A was inserted, by the same amendment, conferring powers upon the Inspector of Factories to prohibit employment on account of serious hazard.

21. In view of the Amendments introduced by Act 20 of 1987, it became necessary to define the expression “hazardous process” and consequently, a definition of the expression was inserted in Section 2(cb). Along with it, the Amendment Act introduced “The First Schedule”, containing “List of Industries involving hazardous processes”. Therefore, the definition under Section 2(cb) of the expression “hazardous process”, was with specific reference only to the industries listed in the First Schedule.

22. Explosives, including industrial explosives and detonators and fuses, is included as one of the industries involving hazardous processes, under the general heading “Chemical Industries” at Serial No.17 in the First Schedule to the Factories Act, 1948. But the expression “explosives” is not defined in the Factories Act. However, even before the Amendment under Act 20 of 1987, the Act already had a provision under Section 37(1), obliging all factories to take all practicable measures to prevent any explosion, if they were engaged in any manufacturing process that produces dust, gas, fume or vapour of such a character and to such an extent as to be likely to explode on ignition.

23. Though the expression “explosives” is not defined in the Factories Act, 1948, it is defined in Section 4 (d) of the Explosives Act, 1884. This Act was already in force, when the Factories Act, 1948 was enacted. Therefore, the normal meaning to be assigned to the expression, is the one provided in the 1884 Act. The definition under the 1884 Act, includes fireworks. This is why, the manufactories of fireworks, take necessary licenses under the Explosives Act, 1884.

24. Keeping in mind the above salient features, if we come to Chapter IX of the Factories Act, it can be seen that it is a Chapter that contains “Special Provisions”. This Chapter contains Sections 85 to 91. Section 85 (1) empowers the State Government to apply the provisions of the Factories Act, to any place where a manufacturing activity is carried on, irrespective of the fact that such a place may not be a factory, within the four corners of the Act. Section 86 confers power of exemption in favour of public institutions. Section 88 obliges the Manager of a Factory to send notices of certain accidents. Section 88-A relates to notices of dangerous occurrences. Section 89 obliges the Manager of a Factory to send notice of certain diseases. Sections 90 and 91 confer powers to hold enquiry into cases of accident or disease and to take samples.

25. Section 87 deals with dangerous operations. It will be interesting to note that the Act does not define the expression “dangerous operations”. But the very scheme of Section 87 gives a clear indication of what would constitute dangerous operations. As per Section 87, any manufacturing process or operation, carried on in a factory, can be declared to be dangerous, if it exposes persons employed in it to a serious risk of bodily injury, poisoning or disease. But this declaration is to be in the form of Rules made under Section 87.

26. In exercise of the powers conferred by Section 87, the Government of Tamil Nadu have issued a set of Rules, that could be found in Chapter IX of the Tamil Nadu Factories Rules, 1950. Rule 95(1) lists out certain operations, that could be declared by the Government under Section 87, to be dangerous operations. There are 32 Entries under Rule 95(1). In respect of each of those Entries, there is a separate Schedule, which forms part of Rule 95. For instance, Schedule I under Rule 95(1) contains Rules relating to “manufacture of aerated waters and processes incidental thereto”, found at Entry No.1 under Rule 95(1).

27. At Entry No.24 of the list under Rule 95(1), “Fireworks Manufactories and Match Factories” are included as Factories in which dangerous operations are carried on. Consequently, Schedule XXIV under Rule 95(1), contains detailed prescriptions, for factories carrying on the manufacture of fireworks and matches.

28. Therefore, we must really make a combined reading of the provisions inserted by Act 20 of 1987 (such as Section 2(cb) and 41-A to 41-H and 87-A) and the provisions of Section 87 read with Rule 95 of the Tamil Nadu Factories Rules, 1950, along with all the XXXII Schedules thereto. If this is done, it will be clear that while retaining the power of the State Government under Section 87 to declare any manufacturing process or operation carried on in a factory to be a dangerous operation, if it involved serious risk of bodily injury, poisoning or disease to the employees, the Parliament added one more thing by identifying under Act 20 of 1987, hazardous processes. In respect of factories where any hazardous process, as defined in Section 2(cb) is carried on, the Parliament provided certain additional safeguards under Sections 41-A to 41-H and Section 87-A. None of these additional provisions inserted by Act 20 of 1987 overlap or stand in conflict, with the provisions of Section 87 or Rule 95 read with Schedule XXIV thereunder.

29. In other words, Act 20 of 1987 did not divide factories carrying on dangerous operations into two water-tight compartments, one carrying on hazardous processes and another carrying on non-hazardous processes. While retaining the power of the State Government to issue Rules under Section 87 to declare, any manufacturing process or operation carried on in a factory to be a dangerous operation, the Parliament created an additional safeguard, in relation to some of those processes or activities, if those processes are carried on in an industry specified in the First Schedule, by branding them as hazardous processes. Except the provisions contained in Sections 41-A to 41-H and 87-A, the Act does not create any additional burden or obligation on factories carrying on hazardous processes.

30. Moreover, a careful analysis of Section 2(cb) and Section 87 would show that they are not mutually exclusive. Section 2(cb) makes any process carried on in an industry specified in the First Schedule, as a hazardous process, if even the raw materials, intermediate products, finished products, bye-products, wastes or effluents thereof would cause material impairment to health or would result in the pollution of general environment. But Section 87 makes only a process or operation, that exposes persons employed in a factory to a serious risk of bodily injury, poisoning or disease, a dangerous operation.

31. In other words, the focus of Section 2(cb) is on materials, be it raw materials or finished or semi finished products or wastes or effluents. But the focus of Section 87 is on process or operation. But, interestingly, Section 2(cb) does not deal with hazardous products or materials, but deals only with “hazardous process”, though its focus is on materials. Section 87 is more homogenus, as it deals only with process or operation. Therefore, every hazardous process would certainly be a dangerous operation, if it exposes the employees to the serious risk of bodily injury. But every dangerous operation need not necessarily be a hazardous process unless the conditions prescribed in Section 2(cb) are satisfied.

32. In so far as manufactories of fireworks are concerned, they use raw materials and get finished, semi finished and bye-products, that would certainly cause material impairment to the health of the employees. Similarly, they also use a manufacturing process or operation, which by itself, exposes the employees to the serious risk of both bodily injury and poisoning. In such circumstances, the classification of manufactories of fireworks as those carrying on “hazardous process” within the definition of the expression under Section 2(cb), does not make the manufacturing process or operation carried on in those factories, go out of the classification contained in Section 87 for a dangerous operation. To put it differently, the manufactories of fireworks, satisfy the prescriptions contained both in Section 2 (cb) and in Section 87, thereby becoming obliged to follow the statutory requirements prescribed for a hazardous process industry and for a dangerous process industry.

33. Therefore, the contention of the learned counsel for the petitioner that the manufactories of fireworks have been taken out of the clutches of Section 87 and now categorised as hazardous process in terms of Section 2(cb), is wholly untenable. The manufactories of fireworks were factories carrying on dangerous operations within the meaning of Section 87 and they continue to be so. After the introduction of Section 2(cb), they are also factories carrying on hazardous process and do not cease to be factories carrying on dangerous operation. Therefore, the contention that the Rules prescribed in Schedule XXIV under Rule 95(1) of the Tamil Nadu Factories Rules, 1950, would not apply anymore to manufactories of fireworks, is totally misconceived.

III. EXPERTISE:

34. The third contention of the learned counsel for the petitioner is that the department of explosives has experts and that therefore, their competence to stipulate standards is much higher than that of the officials of the Labour Department. But the said contention can hardly be accepted.

35. The prescriptions contained in Schedule XXIV under Rule 95(1), are already in force, without any challenge by the petitioners. If the State Government cannot issue rules under the Factories Act, 1948, to lay down certain restrictions, on the ground that they lack expertise, then the entire set of rules in Schedule XXIV under Rule 95(1) would be null and void. But these rules have been in force for decades. Therefore, the additions made to the above rules, cannot be challenged on the ground of lack of expertise.

36. Moreover, the State Government has been compelled to frame additional rules under Schedule XXIV of Rule 95, only in pursuance of the instructions issued by the State Human Rights Commission, in the wake of a fire accident that occurred at Sivakasi on 20.7.2009. The Government Order G.O.Ms.No.184, Labour and Employment Department, dated 29.12.2009, shows that these rules were framed for improving the safety of workers of fireworks factories. Therefore, no exception can be taken to these rules, on the ground of lack of expertise, when the rules were issued in pursuance of the directions issued by the State Human Rights Commission.

IV. RULES NOT LAID BEFORE THE STATE LEGISLATURE:

37. The next contention of the learned counsel for the petitioner is that the rules have not been laid before the State Legislature, in terms of Section 115 (2) of the Factories Act, 1948 and that therefore, they cannot be enforced.

38. But the said contention may not be legally correct. It is true that Section 115 (2) requires that every rule made by the State Government under the Factories Act, 1948, shall be laid as soon as may be, after it is made, before the State Legislature. But the non-compliance of the said requirement, would not make the rules null and void.

39. In Atlas Cycle Industries Ltd vs. State of Haryana {1979 (2) SCC 196}, the Supreme Court pointed out that unless the laying of the rules before the Parliament/Legislature was made a pre-condition, the requirement is only directory and not mandatory. This decision was quoted with approval in Vineet Agrawal vs. Union of India {2007 (13) SCC 116}. Again in Ram Deen Maurya (Dr.) vs. State of Uttar Pradesh {2009 (6) SCC 735}, the Court pointed out that where the consequence of non-compliance with a requirement was not provided, then the procedure is only directory and not mandatory. Therefore, the contention that the rule was not laid before the State Legislature and that therefore, it is unenforceable, cannot be accepted.

40. Mr.M.Sekar, learned counsel for the petitioner relied upon two decisions of the Supreme Court, one in The Municipal Corporation of Bhopal vs. Misbahul Hasan {1972 (1) SCC 696} and K.T.Plantation Pvt. Ltd. vs. State of Karnataka {2011 (9) SCC 1}.

41. In the first case, the Supreme Court was concerned with a regulation that reduced the age of retirement of an employee of the Municipal Corporation of Bhopal. Section 432 of the Madhya Pradesh Municipal Corporation Act, prescribed a procedure for modification of the bye-laws. After reading the said provision in consonance with Section 433 of the Act and Section 24 of the Madhya Pradesh General Clauses Act, 1957, the Supreme Court came to the conclusion in that case that the failure to follow the mandatory procedure prescribed, would invalidate the rule.

42. But the provision with which the Supreme Court was concerned in that case, related to previous publication in the Gazette. Therefore, it was a condition precedent and hence the decision in the said case, cannot be applied to the case on hand.

43. In K.T.Plantation, a Constitution Bench of the Supreme Court pointed out that there are 3 types of procedure, generally involved in the matter of issue of rules or notifications. They are (i) laying of rules which requires no further procedure (ii) laying of rules allied with the affirmative procedure and (iii) laying of rules allied with negative procedure. The Court also pointed out that the object of the requirement of laying the rules, is to subject the subordinate law making authority to the vigilance and control of the legislature.

44. But unfortunately for the petitioner, there are two significant things to be noted in the decision of the Constitution Bench. The first is that in paragraph 74 of the decision, the Court pointed out that the degree of control that the legislature wanted to exercise, could be noticed from the language used in the provision relating to the laying of the rules. The second aspect is that the Constitution Bench took note of the decision in Atlas Cycle Industries, and did not strike a dissenting note. On the contrary, the Constitution Bench passed an order (before rendering a final opinion) directing the State Government to lay the notification before the legislature and thus ensured that the defect if any, was cured.

45. In so far as the case on hand is concerned, the degree of control that the Parliament wanted the State legislature to have, over the rules framed by the State Government, as seen from Section 115, is only minimal. This can be appreciated from the language used in sub-section (1) in contra-distinction to the language used in sub-section (2) of Section 115. Under sub-section (1), the condition of previous publication is prescribed, along with a reference to the General Clauses Act as well as to a time limit of 45 days. But under sub-section (2), nothing else is stipulated except the mere act of laying the rules before the State legislature. Therefore, the decision of the Constitution Bench in K.T.Plantation, would not go to the rescue of the petitioner.

V. RULE MAKING POWER:

46. The next contention of the learned counsel for the petitioner is that under Section 5 of the Explosives Act, 1884, the rule making power vests only with the Central Government and that therefore, the State Government is not competent to lay rules.

47. The above contention is wholly misconceived. The power to frame rules under the Explosives Act, vests only with the State Government. But the power to frame rules under the Factories Act, 1948, vests also with the State Government. Under Section 112 of the Factories Act, a general power to make rules is vested with the State Government. This power is omnibus in nature, since the power conferred therein is for giving effect to the purposes of the Act. But under every Chapter, there are specific provisions conferring rule making powers upon the State Government. For instance, Section 41 confers power upon the State Government to make rules under Chapter IV of the Act, for securing the safety of persons employed in a factory. Similarly, Section 50 confers power to make rules in respect of matters covered by Chapter V. Section 87 is a special provision conferring powers upon the State Government to make rules for the regulation of dangerous operations. It is in the exercise of this power that the rules in 32 Schedules under Rule 95 have been framed by the State Government. Hence, there is no use contending that the State Government has no power to make rules.

48. Both the Explosives Act, 1884 and the Factories Act, 1948, are Central enactments. Section 119 of the Factories Act, 1948, also confers overriding effect. Therefore, when the Factories Act, confers power upon the State Government specifically to make rules with respect to dangerous operations or hazardous processes under Section 87, the same cannot be said to be ultra vires. In any case, I have seen on a comparison, that there is no repugnancy between the rules framed under the Explosives Act, 1884 and the rules framed under the Factories Act, 1948. Therefore, the question of conflict does not arise.

49. Mr.M.Sekar, learned counsel for the petitioner took pains to explain as to how (i) it is impossible to employ persons aged above 55 years only in non-explosive areas (ii) it is practically impossible to make persons work on benches and tables, instead of on the floor (iii) it is impossible to provide blast walls of the prescription now made (iv) it is impossible to provide a machine shed for fancy crackers, when electrical appliances are prohibited by the rules (v) it is impossible to carry on only one item of activity at one time (vi) it is impossible to adhere to the educational qualification prescribed for workers and (vii) it is impossible to restrict the time of manufacturing activity from 6.00 A.M., to 6.00 P.M.

50. But in a writ petition under Article 226, I am primarily concerned only with the validity of the rules and the compliance with the procedure prescribed by law. Once this is satisfied, it is not possible for me to stretch the jurisdiction of this Court to find out if the implementation of the rules would result in hardship to the petitioner. Hardship is in-built in every professional or business venture, as every venture is regulated by law. The hardship caused to the Society at large, due to the failure to regulate a business or professional venture, would be much more than the hardship caused to the industry by regulating it. Therefore, I am constrained not to go into the question of hardship, that would be caused by the requirements mentioned in the preceding paragraph.

51. In view of the above, I find no merits in the challenge to the impugned notification. Therefore, the writ petition is dismissed. There will be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.

SVN To

1. The Principal Secretary to Government, Department of Labour and Employment, Fort St. George, Chennai-600 009.

2. The Deputy Chief Controller of Explosives, Petroleum and Explosives Safety Organisation (PESO), FRDC Complex, Sivakasi West 626 124

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