If Occupier is not appointed who is responsible for the factory

In the absence of occupier who is responsible and who have ultimate control over the affairs of this factory

An occupier of the factory in the case of a company must necessarily be any one of its directors who shall be so notified for the proposes of the Factories Act 1948. (Section 2(n). If it is not notified the Factories Inspector has the power to decide as to who is the occupier of the Factory based on who exercises ultimate control over the affairs of the factory. Such an occupier cannot be any other employee of the company or the factory.
The Supreme Court recently answered this issue in refusing to quash case against Kitex MD Sabu Jacob over worker's accidental death in Factory. (Sabu M Jacob Vs State of Kerala decided on 25th March 2022). It was the case of the Accused/Defendant that since Sabu Jacob was not notified to be the Occupier, he cannot be prosecuted. A supreme Court bench comprising Justice DY Chandrachud and Surya Kant dismissed the plea and upheld the Factories Inspector can choose and decide as to who is exercising ultimate control over the affairs of the factory and deem him to be the occupier and hence responsible for being prosecuted

Dear Colleague,
In normal circumstances, the Occupier is the one who has ultimate control over the affairs of the factory and in case of a company it is any one of the Director shall be deemed to be Occupier. In case if it is not notified as rightly guided by the Colleague in the above reply it will be determined by the Inspector concerned based on the fact which Director had ultimate control over the affairs of the factory. In some of the past experiences, the cases were filed on all Directors in the absences of notifying the Director. Hence in such case all directors are equally liable and may be prosecuted by the Inspectorate.

2(n) “occupier” of a factory means the person who has ultimate control over the affairs of the
factory
[Provided that—
(i) in the case of a firm or other association of individuals, any one of the individual partners
or members thereof shall be deemed to be the occupier;

(ii) in the case of a company, any one of the directors shall be deemed to be the occupier;

(iii) in the case of a factory owned or controlled by the Central Government or any State
Government, or any local authority, the person or persons appointed to manage the affairs of the
factory by the Central Government, the Stale Government or the local authority, as the case may
be, shall be deemed to be the occupier:]