CASE STUDY NO 2

CASE COMMENT ON:

INDIAN OIL CORPORATION LTD. V. THE CHIEF INSPECTOR OF FACTORIES

CITATION: AIR 1998 SC 2456

FACTS:

The present case is about the question and the harmonious interpretation thereof as to, who is the
deemed “occupier” of the factory of a public company with respect to the definition of occupier
in the Factories act section 2(n) or clause (iii) of the proviso of the same section as in this
particular case, the person appointed to manage the affairs was a government appointed person.

ISSUE:

1. Whether in the case of a company one of the directors of the company only can be
recognized as an occupier of the factory owned by it
2. Whether clause (iii) would apply to the factories of the Corporation and it is open to the
Central Government to nominate any person other than the director as the occupier.

OBSERVATION:

It was observed that Section 2(n)1 of the Act, the word "occupier" itself makes it clear that the
person who has the ultimate control over the affairs of the factory is to be regarded as the
occupier of the factory. Particularly in this case, the ultimate control is that of the company and,
therefore, the directors in whom the power to manage the affairs of the company vest is deemed
to be the occupier of the factory. 

Relying upon the judgment in the case of J.K. Industries, where in the case of the appellant-
corporation it will have to be held that the ultimate control over the affairs of all the factories of
the Corporation is really of the Central Government, and, therefore, all the factories of the
Corporation should be regarded as factories owned and controlled by the Central Government.
As there is a special provision governing factories owned or controlled by the Central
Government the general provision made with respect the companies, will not apply.

Also it was observed that clause (iii) applies only to those factories which are run by the
government departmentally not merely as a whole. Also observed that IOC is just like any other
company, has its own share capital, has a Board of Directors in whom the power to manage the
affairs of the company vests and profit and loss made by it would be its own.

1
“occupier” of a factory means the person who has ultimate control over the affairs of the
factory
Thus as observed that it is not merely a separate legal entity but is quite independent and
different from the government besides having a 91.5 percent of the share holding by central
government.

Since the Government has vast powers to control the affairs of the Corporation yet the factories
of the Corporation are run by the Corporation and its employees and not by the concerned
Government department and the employees working therein.

About the previous amendment, It was also observed that when the legislature amended the
section 100 by the Amending Act of 1987 it appears that the legislature wanted to bring in a
sense of responsibility in the minds of those who have the ultimate control over the affairs of the
factory i. e. directors, so that they take proper care for maintenance of the factories and the safety
measures therein

The following observation were made to quote:

“Particularly in the proviso (ii), that was introduced by the Amending Act, couched in a
mandatory form-"any one of the directors shall be deemed to be the occupier"- keeping in view
the experience gained over the year as to how the directors of a company managed to escape
their liability, for various breaches and defaults committed in the factory by putting up another
employee as a shield and nominating him as the 'occupier who would willingly suffer penalty
and punishment. Proviso (ii) now made it possible to reach out to a director of the company
itself, who shall be prosecuted and punished for breach of the provisions of the Act, apart from
prosecution and punishment of the Manager and of the actual offender.”

Altogether in a different context Court in Mahabir Auto Stores and Others v. Indian Oil
Corporation and others2, held that the Indian Oil Corporation which is a statutory body
incorporated under the Companies Act, controlled by state and is is subject to the policies,
directions, instructions and guidelines issued by the Ministry of Energy,

Observed again in J.K. Industries Ltd., Court, while dealing with Section 2(n), as amended by
Act 20 of 1987 emphasized the use of the word "ultimate" and after referring to the decision
in John Donald Mackenzie v. Chief Inspector of Factories3 observed that: “If the transfer of the
control to another person is not complete, meaning thereby that the transferor retains its control
over the affairs of the factory, the transferee, whosoever he may be, (except a director of the
company, or a partner in a partnership firm) cannot be considered to be the person haying
ultimate control over the affairs of the factory notwithstanding what the resolution of the Board
states.”

CONCLUSION
2
[1990] 3 SCC 752
3
AIR (1962) SC 135
For the aforesaid reasons it was held in this particular case that factories run by the appellant-
corporation are effectively and really owned and controlled by the Central Government they fall
within the purview of clause (iii) and not clause (ii) of the first proviso to Section 2 (n). Thus the
learned judges contended that High Court was erroneous in taking a contrary view.

Thus allowing the appeal, setting aside the judgments and the order passes by the High Court,
Directed Respondents No 1 & 2 to accept the persons appointed by the Central Government of
manage the affairs of the factories as the occupiers of those factories for the purposes of Section
2(n) of the Factories Act.