Marimuthu Chettiar v. State of Kerala — 1959 DIGILAW 28 (KER)

JUDGMENT M.S. Menon, J. 1. The question involved in this petition is whether Ext. P. 1, a notification of the Government of Kerala dated 8-11-1957, is valid or not. The notification reads as follows :- "In exercise of the powers conferred by S.85(1) of the Factories Act, 1948 (Central Act LXIII of 1948) and in supersession of all previous notifications on the subject, the Government of Kerala hereby declare that the provisions of the said Act specified in column (4) of the schedule hereto annexed, shall apply to any place in the State of Kerala wherein any manufacturing process specified in the corresponding entry in column (2) and described in column (3) thereof is carried on notwithstanding that, (i) the number of persons employed therein is less than ten, if working with the aid of power, and less than twenty, if working without the aid of power, or, (ii) the persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with, such owner : Provided that the manufacturing process is not being carried on by the owner only with the aid of his family. SHEDULE Sl. No. Manufacturing process Discription Provisions of the Factories Act, 1948 made applicable. (1) (2) (3) (4) 1. Manufacturing of Beddi Employing 10 or more but less than 20 persons on any one day, and using no power. 1 to 20, 32, 33, 34, 35, 38, 39, 40, 41, 44, 45, 50 and 51 to 118. 2. Dyeing or printing of cloth. do. 1 to 10, 16, 18, 42, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 3. Handloom weaving of cotton textiles. do. 1 to 10, 16, 18, 42, 62 to 84, 88 to 90, 92 to 115, 117 and 118. 4. Manufacture of coir mats and mattings. do. do. 5. Manufacture of safety matches. do. 1 to 10, 16, 18, 38, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 6. Printing on paper or book binding. do. 1 to 11, 18, 42, 51 to 56, 61 to 63, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 7. Manufacture of ornaments or jewels. do. 1 to 10,16, 18, 38, 62, 67 to 84, 86 to 90, 92 to 115, 117 and 118. 8. Tanning and treating of hides and skins. do. 1 to 11, 18, 42, 51 to 56, 61 to 63, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 7. Manufacture of ornaments or jewels. do. 1 to 10,16, 18, 38, 62, 67 to 84, 86 to 90, 92 to 115, 117 and 118. 8. Tanning and treating of hides and skins. do. 1 to 13,16 to 18, 51 to 56, 62 to 63, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 9. Repairs and maintenance of automobiles. do. 1 to 10, 16, 18, 42, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 10. Manufacture or repairs of machinery or machine parts, or manufacture of any other metal, metal products including metal founding. Employing 5 or more but less than 10 persons on any one day and using power. 1 to 10, 16, 18, 21 to 24, 42, 62, 67 to 81, 88 to 90, 92 to 115, 117 and 118. 11. Repairs and maintenance of automobiles. do. do. 12. Dall milling do. do. 13. Printing on paper or book binding. do. do. 14. Rice hulling, grinding or powdering of corns or seeds or crushing of copra or oil seeds. do. 1 to 10,16 to 18,21 to 24, 25, 42, 45, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 15. Spinning, weaving, knitting or finishing of any textiles including hosiery. do. 1 to 10,16 to 18, 21 to 23, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 16. Sawing timber or wood. do. 1 to 10, 11, 13,16, 18, 21 to 23, 32, 33, 38 to 40, 45, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 17. Filling bottles with aerated water. Employing any number of persons, not exceeding nine persons, where power is used or nineteen per sons where power is not used. 1 to 10, 11, 13, 21, 62, 67 to 84, 87 to 90, 92 to 115, 117 and 118." 18. Retreading of tyres. do. 1 to 10, 11, 18, 21, 31, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 2. 1 to 10, 11, 13, 21, 62, 67 to 84, 87 to 90, 92 to 115, 117 and 118." 18. Retreading of tyres. do. 1 to 10, 11, 18, 21, 31, 62, 67 to 84, 88 to 90, 92 to 115, 117 and 118. 2. S.85 of the Factories Act, 1948, is in the following terms : "(1) The State Government may, by notification in the official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried with or without the aid of power or is so ordinarilly carried on, notwithstanding that-(i) the number of persons employed therein is less than ten, if working with the aid of power and less than twenty if working without the aid of power, or (ii) the persons working therein are not employed by the owner thereof but are working with the permission of, or under agreement with, such owner : Provided that the manufacturing process is not being carried on by the owner only with the aid of his family. (2) After a place is so declared, it shall be deemed to be a factory for the purposes of this Act, and the owner shall be deemed to be the occupier, and any person working therein a worker. Explanation.-For the purposes of this section, 'owner' shall include a lessee or mortgagee with possession of the "premises". The petitioner's oil mill which is worked with the aid of power but employs less than ten persons is covered by entry 14 of the schedule to the notification. It is common ground that if the notification is not sustained by the provisions of S.85, then the action threatened against the petitioner for violation of the Factories Act, 1948, by the 2nd respondent (the Chief Inspector of Factories & Boilers, Trivandrum) is unwarranted and that Ext. P. 2, his notice in that behalf dated 12-7-1958, has to be quashed by an appropriate writ or direction from this Court. 3. The validity of S.85 is not in controversy before me. In AIR 1959 Allahabad 24 such a contention was raised but without success. The court said: "The purpose of the Factories Act is the regulation of labour, the extent of the application of the Act necessarily depending very largely on local conditions. 3. The validity of S.85 is not in controversy before me. In AIR 1959 Allahabad 24 such a contention was raised but without success. The court said: "The purpose of the Factories Act is the regulation of labour, the extent of the application of the Act necessarily depending very largely on local conditions. In such circumstances we do not think that the authority given to the State Government by S. 85 to apply the provisions of the Act to a place which is not technically a factory but in which a manufacturing process is carried on can be held to be an unconstitutional delegation of legislative powers." The contention of the petitioner is not that S.85 is invalid but that the section empowers only a notification to the effect that the Act shall apply to "specific" places and not a "general" one like Ext. P1. 4. S.2(m) of the Factories Act, 1948, defines the expression "factory" as follows: " 'factory' means any premises including the precincts thereof- (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,- but does not include a mine subject to the operation of the Mines Act, 1952 (XXXV of 1952) or a railway running shed" and what S.85 does is to empower the State Governments to treat other places also as factories for the purposes of the Act provided the conditions of that section are satisfied. As pointed out in AIR 1955 Bombay 209 the combined effect of S.2 (m) and S.85 is that there may be a factory if a place satisfies the requirements of S.2(m) and there may also be a factory if the conditions of S.85 are satisfied. 5. As pointed out in AIR 1955 Bombay 209 the combined effect of S.2 (m) and S.85 is that there may be a factory if a place satisfies the requirements of S.2(m) and there may also be a factory if the conditions of S.85 are satisfied. 5. In AIR 1953 Madras 154 the validity of a notification of the Government of Madras in the following terms came up for consideration : "In exercise of the powers conferred by S.85(1) of the Factories Act, 1948 (Central Act LXIII of 1948) His Excellency the Governor of Madras, declares that all the provisions of the said Act shall apply to any place wherein a manufacturing process is carried on without the aid of power or is so ordinarily carried on and ten or more but less than 20 persons are employed" Ramaswami, J., said: "There can be no doubt that this G. O. is illegal and ultra vires and beyond the powers conferred under S. 85, Factories Act. The State Government would have been within its powers if they notified particular named places as factories. But instead of doing so this G. O. makes every place from Ganjam to Rameswaram generally as a factory provided there are more than 10 and less than 20 people employed and engaged in the manufacturing process without the aid of power. This practically renders nugatory the definition of a factory in S. 2(m) of the Act. The object of S. 2(m) in restricting the term 'factory' to places which employ 20 or more persons engaging in a manufacturing process without the aid of power, is that small undertakings most often practically family business, should not be subjected to the rigorous restrictions imposed by the Factories Act and that in fact such business would not be requiring the rigorous restrictions under the Factories Act. The Central legislature has at the same time contemplated that in particular places and in certain types of business run with less than 20 but more than ten persons without the aid of power conditions may exist calling for the application of the salutary provisions of the Factories Act in ensuring the welfare of the workers. The Central legislature has also certainly contemplated that the provisions of the Factories Act might get defeated by scrupulously keeping the number of workers down to 19. The Central legislature has also certainly contemplated that the provisions of the Factories Act might get defeated by scrupulously keeping the number of workers down to 19. That is why power has been given to the State Governments to prevent the abuse of the limitations imposed in S. 2(m). This special power conferred on the State Government cannot be exercised in this manner and used as if it were a blank cheque and issue a G. O. in the aforesaid terms". I am certainly not concerned in this case with a notification of the type considered by the Madras High Court and it is therefore not necessary for me to come to a conclusion as to whether I agree with that decision or not. 6. Ext. P. 1 is very similar to the notification considered and upheld in AIR 1957 Patna 247 : "In exercise of the powers conferred by sub-s.(1) of S. 85 of the Factories Act, 1948 (XLIII of 1948), and in supersession of the notification No. IV/F1-1054/5IL-38, dated the 28th March 1951, the Governor of Bihar is pleased to declare- (a) that all the provisions of the said Act except those of Chapters III, V, VI, VII and VIII and R. 3 of the Bihar Factories Rules, 1950, shall apply to any place in the State of Bihar wherein any manufacturing process specified in the Schedule hereto annexed is carried on, and (b) that the provisions of Chapters I, II and IV and of Ss. 11 and 16 of Chapter III and Ss. 42 and 50 of Chapter V of the said Act shall apply to any place in the State of Bihar wherein the manufacturing process of printing or composing is carried on, with or without the aid of power, or is so ordinarily carried on notwithstanding that (1) the number of persons employed therein is less than ten if working with the aid of power, and less than twenty, if working without the aid of power, or (ii) the persons working therein are not employed by owner thereof but are working with the permission of, or under agreement with, such owner : Provided that the manufacturing process is not being carried on by the owner with the aid of his family. SCHEDULE 1. Sawing of timber. 2. Manufacture of ice. 3. Manufacture of oil. 4. SCHEDULE 1. Sawing of timber. 2. Manufacture of ice. 3. Manufacture of oil. 4. Flour milling including grinding or breaking of any other cereal or material. 5. Rice milling. 6. Dal milling. 7. Manufacture or repairs of machinery or machine parts or manufacture of any other metal product including metal founding. 8. Repairs and maintenance of automobiles. 9. Generation of electricity. 10. Manufacture of tea. 11. Spinning, weaving, knitting or finishing of any textile including hoseiry. 12. Jute bailing and pressing." Raj Kishore Prasad, J., (with whom Ramaswamy, C. J. agreed), dealt with the Madras decision as follows: "In may opinion, this decision does not apply to the present case. In the Madras case, the nature of the manufacturing processes was not specified, but it was left vague, and very general. In the present case, however, in the schedule annexed to the notification, the several kinds of manufacturing processes have been particularised and specially mentioned therein. In such circumstances, it cannot be said that the definition of a factory in S. 2(m) in the Act has been rendered nugatory; on the other hand, it has been extended, and, places which did not come under S. 2(m) have also been included by virtue of the notification under S. 85(1). In my opinion, the special power conferred on the State Government under S. 85(1) of the Act has been exercised in the proper manner in accordance with the policy of the Act in order to achieve its object." 7. In the light of what is stated above the validity of Ext. P. 1 has to be sustained and this petition dismissed. Judgment accordingly. 8. No costs.