Summary / Citation: Part VIII—OFFENCES, PENALTIES AND LEGAL PROCEEDINGS
(1) "In the event of any contravention in or in connection with or in relation to a factory of the provisions of this Act, or of any Regulation or Order made thereunder, the occupier, or (if the contravention is, one in respect of which the owner is by or under this Act made responsible) the owner, of the factory shall, subject as hereafter in this Act provided, be guilty of an offence under this Act.
(2) In the event of a contravention by an employed person of the provisions of Part VI of this Act with respect to duties of persons employed, or of a contravention by any person of any Regulation or Order made under this Act which expressly imposes any duty upon him, that person shall be guilty of an offence and the occupier or owner, as the case may be, shall not be guilty of an offence by reason only of the contravention of the said provisions of Part VI of this Act, or the contravention of the provision imposing the said duty, as the case may be, unless it is proved that he failed to take all reasonable steps to prevent the contravention; but this subsection shall not be taken as affecting any liability of the occupier or owner in respect of the same matters by virtue of some provision other than the provisions aforesaid.
(3) If the occupier of a factory avails himself of any special exception allowed by or under this Act and fails to comply with any of the conditions attached to the exception, he shall be deemed to have contravened the provisions of this Act.
(4) If any person is employed in a factory otherwise than in accordance with the provisions of this Act or of any Regulation or Order made thereunder, there shall be deemed to be a separate contravention in respect of such person so employed.
(5) Where an offence under this Act committed by a company, co-operative society or other body of persons is proved to have been facilitated by neglect on the part of, any Chairman, Director, Manager, Secretary or other officer of the company, co-operative society or other body of persons, he as well as the company, co-operative society or other body of persons, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly."
(Art. 47)
"Subject as hereinafter in this Act provided, any person guilty of an offence under this Act for which no express penalty is provided by or under this Act shall be liable to a fine not exceeding fifty leones, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment, and, if the contravention in respect of which he was so convicted is continued after the conviction, he shall (subject to the provisions of section 49) be guilty of a further offence and liable in respect thereof to a fine not exceeding ten leones for each day on which the contravention was so continued."
(Art. 48)
"Where the occupier or owner of a factory is convicted of an offence under this Act, the court may, in addition to or instead of imposing any penalty, order him, within the time specified in the order, to take such steps as may be so specified for remedying the matters in respect of which the contravention occurred, and may, on application, enlarge the time so specified, and where such an order is made, the occupier or owner shall not be liable under this Act in respect of the continuation of the contravention during the time allowed by the court, but if, after the expiration of that time as originally specified or enlarged by subsequent order, the order is not complied with, the occupier or owner, as the case may be, shall be liable to a fine not exceeding ten leones for each day on which the non-compliance continues."
(Art. 49)
"If any person is killed, or dies, or suffers any bodily injury, in consequence of the occupier or owner of a factory having contravened any provision of this Act or of any Regulation or Order made thereunder, the occupier or owner of the factory shall, without prejudice to any other penalty, be liable to a fine not exceeding two hundred leones or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment, and the whole or any part of the fine may be applied for the benefit of the injured person or his family or otherwise as the court may order:
Provided that—
(a) in the case of injury to health, the occupier or owner shall not be liable to a penalty under this section unless the injury was caused directly by the contravention; and
(b) the occupier or owner shall not be liable to a penalty under this section if the charge against him under this Act in respect of the act or default by which the death or injury was caused has been heard and dismissed before the death or injury occurred."
(Art. 50)
"If any person—
(a) forges or counterfeits any certificate required by, under, or for the purposes of this Act or any Order or Regulations made thereunder; or
(b) forges or signs any such certificates knowing it to be false in any material particular; or
(c) knowingly utters or makes use of any such certificates so forged, counterfeited, or false as aforesaid; or
(d) knowingly utters or makes use of, as applying to any person, any such certificate which does not so apply; or
(e) personates any person named in any such certificate; or
(f) falsely pretends to be an Inspector; or
(g) wilfully connives at any such forging, counterfeiting, giving, signing, uttering, making use, personating or pretending as aforesaid; or
(h) wilfully makes a false entry in any register, notice, certificate, or document required bv, under, or for the purposes of, this Act or any Order or Regulation made thereunder to be kept or served or sent; or
(z) wilfully makes or signs a false declaration required by, under, or for the purposes of, this Act or any Order or Regulation made thereunder; or
(J) knowingly makes use of any such false entry or declaration as aforesaid."
(Art. 51)
"Where an act or default for which an occupier or owner of a factory is liable under this Act is in fact the act or default of some agent, servant, worker or other person, that agent, servant, worker or other person shall be guilty of an offence and liable to the like penalty as if he were the occupier or owner, as the case may be."
(Art. 52)
(1) "Where the occupier or owner of a factory is charged with an offence under the provisions of this Act, he shall be entitled, upon a charge duly made by him and on giving to the prosecution not less than three days' notice in writing of his intention. to have any other person whom he charges as the actual offender (whether or not that person is his agent or servant) brought before the court at the time appointed for hearing the charge, and if, after the commission of the offence has been proved, the occupier or owner of the factory proves to the satisfaction of the court—
(a) that he has used all due deligence to enforce the execution of the provisions of this Act and of any relevant Regulation or Order made thereunder; and
(b) that the said other person had committed the offence in question without his consent, connivance or wilful default,
that other person shall be convicted of the offence, and the occupier or owner shall not be guilty of the offence, and the person so convicted shall, in the discretion of the court, be also liable to pay any costs incidental to the proceedings.
The prosecution and the said other person shall each have the right in any such case to cross-examine the occupier or owner, if he gives evidence, and any witnesses called by him in support of his charge, and to call rebutting evidence.
(2) When it is made to appear to the satisfaction of an Inspector at the time of discovering an offence—
(a) that the occupier or owner (as the case may be) of the factory has used ail due diligence to enforce the execution of this Act and of any relevant Regulation or Order made thereunder; and
(b) by what person the offence has been committed; and
(c) that it has been committed without the consent, connivance or wilful default of the occupier or owner .and in contravention of his orders,
the Inspector shall proceed against the person whom he believes to be the actual offender without first proceeding against the occupier or owner of the factory."
(Art. 53)
"Where, under this Act, any person is substituted for the occupier or owner of a factor}' with respect to any provision of this Act, all orders, summons, notices or proceedings which, for the purpose of any of those provisions, are by or under this Act required or authorised to be served on or taken in relation to the occupier or owner, are hereby required or authorised (as the case may be) to be served on or taken in relation to that person."
(Art. 54)
"Where in a factory the owner or hirer of a machine implement moved by mechanical power is some person other than the occupier of the factory, the owner or hirer shall, so far as respects any offence under this Act committed in relation to a person who is employed in or about or in connection with that machine or implement and is in the employment or pay of the owner or hirer, be deemed to be the occupier of the factory."
(Art. 55)
(1) "All offences under this Act shall be prosecuted, in a Magistrate's Court.
(2) In any proceedings under this Act it shall be sufficient in the charge to allege that the factory is a factory within the meaning of this Act, and to state the name of the ostensible occupier of the factory or, where the occupier is a firm, the title of the firm; and the burden of proving that the premises are not a factory, or that the occupier specified in the charge or information is not the occupier of the factory, shall lie upon the person alleging such fact.
(3) Where any offence is committed under this Act by reason of a failure to make an examination, enter a report, or do any other thing, at or within a time specified by this Act (or any Regulation or Order made thereunder), the offence shall be deemed to continue until the examination is made, or the report entered, or the other thing done, as the case may be."
(Art. 56)
(1) "If a person is found in a factory at any time at which work is going on or machinery is in motion, except during the intervals for meals or rest, he shall, until the contrary is proved, be deemed for the purposes of this Act to have been then employed in the factory:
Provided that this subsection shall not apply to a factory in which the only persons employed are members of the same family dwelling there.
(2) Where any entry is required by this Act or by any Order or Regulations made thereunder to be made in the general register or in any other register or record, the entry made by the occupier of a factory or on his behalf shall, as against him, be admissible as evidence of the facts therein stated, and the fact that any entry so required with respect to the observance of any provision of this Act or of any Order or Regulation made thereunder has not been made shall be admissible as evidence that that provision has not been observed."
(Art. 57)
(1) "Any document (including any summons or order) required or authorised to be served under this Act may be served—
(a) on any person by delivering it to him,, or by leaving it at, or sending it by post to his residence or place of business;
(b) on any firm by delivering it to any partner of the firm, or by leaving it at, or sending it by post to, the office of the firm;
(c) on the owner or occupier of a factory (including any such owner or occupier being a company or a co-operative society) in any such manner as aforesaid, or by delivering it, or a true copy thereof to any responsible person apparently not under the age of sixteen years at the factory.
(2) Any such document may be addressed, for the purpose of the service thereof on the occupier of a factory, to "the occupier " at the proper postal address of the factory, without further name or description.
(3) The foregoing provisions of this section shall apply, with the necessary modifications, to documents required or authorised under this Act to be sent to any person, firm, owner or occupier, and to the sending, addressing and delivery of such documents."
(Art. 58)
(1) "If on complaint by an Inspector a Magistrate's Court is satisfied either—
(a) that any part of the ways, works, machinery, or plant used in a factory is in such a condition or is so constructed or is so placed that it cannot be used without risk of bodily injury; or
(b) that any process or work is carried on or anything is or has been done in any factory in such manner as to cause risk of bodily injury;
the court shall as the case may require, by order—
(i) prohibit the use of that part of the ways, works, machinery, or plant, or, if it is capable of repair or alteration, prohibit its use until it is duly repaired or altered: or
(ii) require the occupier of the factory to take such steps as may be specified in the order for remedying the danger complained of.
(2) Where a complaint is or has been made under the last foregoing subsection the court may, on application ex-parte by the inspector, and on receiving evidence that the use of any-such part of the ways, works, machinery, or plant, or, as the case may be, the carrying on of any process or work or the doing of anything in such a manner as aforesaid, involves imminent risk of serious bodily injury, make an interim order prohibiting, either absolutely or subject to conditions, the use, carrying on or doing thereof until the earliest opportunity for he aring and determining the complaint.
(3) In the event of a contravention, in relation to any factory, of an order of a court made under this section, the occupier of the factor}' shall be guilty of an offence and liable on conviction thereof to a fine not exceeding three hundred leones or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment, and if the contravention in respect of which he was so convicted is continued after the conviction, he shall be guilty of a further offence and liable in respect to a fine not exceeding ten leones or to imprisonment for a term not exceeding seven days, or to both such penalties, for each day on which the offence was so continued."
(Art. 59)
(1) "A Magistrate's Court may, on complaint by an Inspector, and on being satisfied that any factory or part of a factory is in such a condition, or is so constructed or placed, that any process or work carried on therein, or intended to be carried on therein, cannot be so carried on with due regard to the safely and health of the persons employed, by order prohibit the use thereof for the purpose of that process or work.
(2) An order made by a court under this section may—
(a) prohibit the carrying on of any process or work either indefinitely, or until such steps have been taken as may be specified in the order to enable the process or work to be carried on with due regard to the safety and health of the persons employed; and
(b) be revoked or varied on the application by way of complaint of the occupier or owner of the factory:
Provided that, on any such application as aforesaid, an Inspector shall be entitled to be heard.
(3) If any process or work is carried on in a factory or part of a factory in contravention of an order of a court made under this section, the occupier of the factory shall be guilty of an offence and liable on conviction thereof to a fine not exceeding
two hundred leones. or to imprisonment for a term not exceeding three months, or to both such penalties, and. if the contravention in. respect of which he was so convicted is continued after the conviction, he shall be guilty of a further offence and liable in respect thereof to a fine not exceeding ten leones or to imprisonment for a term not exceeding seven days, or to both such fine and such imprisonment, for each day on which the offence was so continued."
(Art. 60)
"Any person (including an Inspector) aggrieved by an order made by a court on determining a complaint under the last two foregoing sections may appeal therefrom to the High Court, whose decision shall be final."
(Art. 61)
• Factories Act, 1974 [No. 3 of 1974]. (Arts. 47 - 61)
