JUDGMENT : The three appeals are by the State against the acquittal of the accused in the respective cases of certain offences under the Factories Act for failure to comply with the provisions thereof. They arise respectively out of C. C. Nos. 184, 222 and 223 of 1958 on the file of the Court of the District Magistrate, Kumbakonam. In Crl. R. C. 340 of 1960 the petitioner who has been convicted by the Additional First Class Magistrate, Mayuram, of certain offences under the Factories Act, that is, for failure to provide certain facilities which the proprietor of a factory is enjoined to provide for his employees, which conviction was confirmed in appeal by the learned Sessions Judge of East Tanjore Division, questions the validity of his conviction. All these four cases have been heard together. It is common ground that the facts giving rise to the se various orders are identical. The charge against these several accused was that they failed to provide conveniences for washing and drinking for their workers and failed also to maintain a first aid kit. It also appears that certain workers who were not adults were employed ‘without certificate of fitness having been obtained as required by the law. The main ground that was taken by the several accused persons was that these are not factories within the meaning of the Act and that the persons who were found to be working in these “factories” were not workers within the meaning of the Act. This contention was accepted in the three cases in which appeals by the State have been filed but has apparently not been accepted in the last of the ease's. Before dealing with the legal questions that have been raised, the facts in one case may be set out. It would be sufficient to deal with the facts of one such case, because it is common ground, that the facts in the other cases are similar. Taking Crl. Ap. No. 302 of 1959, it would appear that P. W. 1, the Assistant Inspector of Labour, inspected the premises of the cigar company. The accused is the manager of this factory. He had taken a licence as early as in 1958. On the date of the inspection, which was Seventeenth June 1958, P. W. 1 found the factory working with 45 adults and three non-adults. They were engaged in rolling cigars. The accused is the manager of this factory. He had taken a licence as early as in 1958. On the date of the inspection, which was Seventeenth June 1958, P. W. 1 found the factory working with 45 adults and three non-adults. They were engaged in rolling cigars. The accused was present in the factory. P. W 1 found certain conveniences which it is incumbent upon the manager of the factory to provide for these workers to be absent. The non-adult workers in the factory had not been employed after obtaining certificates of fitnesss; this contravened S. 68 of the Act. A notice was accordingly issued to the manager of the factory. P. W. 1, the Assistant Inspector, stated that the factory functions continuously throughout the year and that ‘the manager thereof has been submitting half-yearly and annual returns. There are regular hours of work prescribed for the workers and a notice board with such hours is also exhibited in the premises. P. W. 1 further stated that he noticed a muster roll maintained in the factory. This muster roll itself was not in evidence According to P.W. 1, this muster roll did not contain the particulars which it should contain. It however displayed that more than 20 workers were being regularly employed. What was called a wages register was also maintained in the factory. P. W. 1 stated that the factory was under the control of the accused manager and that at the time of his inspection he found either the accused or his assistants supervising the work. P. W. 2, a coolly by profession who works in cigar factories, claimed to have been working in the accused's factory for about 5 years. He swore that fixed hours are prescribed for the workers, that workers are granted leave and that the out-turn of work is supervised and controlled by the manager or by the accountant. He stated further that each worker would be supplied with a certain quantity of tobacco with which he had to roll a prescribed number of cigars, He claimed that there are about 50 permanent workers in the factory and that the workers are given as bonus a dhoti and a towel for Pongal. His case was that the workers had been paid monthly salaries. In cross-examination, however, his evidence was very different. His case was that the workers had been paid monthly salaries. In cross-examination, however, his evidence was very different. He admitted that workers have no paid leave, that they are not required to sign in any attendance register and that there is no minimum number of cigars which a worker should roll every working day. He admitted that the workers are paid according to the number of cigars rolled which would in its turn depend upon the capacity of each worker. He admitted farther that after finishing the tobacco given to a worker, he would not be given any further quantity and that a worker finishing the work could leave the factory earlier than the usual closing hour. In explanation of the alleged fixed hours of work, his version in cross-examination was that the factory would not commence working before 9 a. m. and would not probably continue after a certain hour in the evening. He also admitted that on a rainy day there would be no work and no pay. Work would also be suspended when stocks accumulated. Any delay in the receipt of tobacco would also entail cessation of work. With regard to the supervision, he conceded that it only amounted to seeing that the workers worked properly and that there was no theft. In his statement before the trial Court, the accused in this case admitted that he is the proprietor of the factory and that he had taken out a licence. He admitted the absence of the facilities that were required to be provided in the case of a factory. He stated however that the factory did not work throughout the year, that the workmen used to come and go whenever they pleased and that the wages would be paid according to the number of beedies or cigars rolled by each worker. He took out the licence for the factory only on compulsion. But he maintained that this factory is not a factory under the Act and that the workmen are not paid employees but only coolies. He claimed that there no regular hours of work and no salary was paid. Certain defence witnesses were also examined who supported the version given by the accused. But he maintained that this factory is not a factory under the Act and that the workmen are not paid employees but only coolies. He claimed that there no regular hours of work and no salary was paid. Certain defence witnesses were also examined who supported the version given by the accused. In addition to this evidence, an award of a Labour Court dealing with the industrial dispute No. 13 of 1958 between the workers employed in a particular factory in Tanjore and the management of that factory was marked in evidence as Ex. D. 1. Though this award dealt with the case of a different factory it is common ground that the conditions in all the factories which produce cigars are almost identical with the conditions obtaining in this factory. In this dispute, the workers prayed for reinstatement with continuity of service and for payment of back wages till the date of reinstatement. The Labour Court went into the question of the condition obtaining in Factories of this kind and came to the conclusion that notwithstanding that notices were put up apparently in compliance with the requirements of the Factories Act, the terms and conditions under which the workers were employed in the factory did not being these workers within the scope of the definition contained in the Factories Act. The nature of the supervision and control exersiced by the manager of the factory over the workers consisted only in seeing that the workers returned the number of cigars which could be rolled out of the quantity of tobacco supplied to them. It was found the volume of work which the worker was called upon to do depended not only upon the ability of the worker to roll cigars but upon the discretion and necessity of the proprietor. There was no specific workload in the sense that a worker was called upon to work for a certain regular hours of the day and to turn out a certain quantity of cigars dependent upon the number of hours of work, that is to say, the worker was not employed on the basis of the time for which he worked but only on the quantity of cigars which he rolled. There was also the evidence that any worker could leave one factory and take up work in another. There was also the evidence that any worker could leave one factory and take up work in another. Though the facts found by the Labour Court are not binding upon the criminal Court, there is no doubt that the award setting out the conditions obtaining in this and other factories of this kind is a valuable piece of evidence which can be accepted and acted upon. It is in the light of these facts that the question has to be considered whether this is a factory to which the provisions of the Factories Act would apply. On the side of the prosecution, the case was really rested upon the fact that the manager of the factory had taken out a licence under the Factories Act and had purported to conform to the requirements of that Act and the rules framed thereunder by submission of half-yearly and yearly returns, by putting up a notice of the hours of work and by the maintenance of such registers as the Act contemplates. Even if the manager of the factory had acted in this manner, it would not immediately follow that his acts alone would bring the factory within the scope of the Factories Act, It had to be established from undeniable circumstances and upon evidence that the factory falls within the definition under S 2(m) of the Act and that the worker employed in such a factory also comes within the definition contained in S. 2 (1). It is not necessary to set out these definitions. It would suffice to consider decided cases on this point. In D. C. Workers Ltd v. State of Saurashtra(A.I.R. 1957 S.C. 264) a question arose under the Industrial Disputes Act and it became necessary to determine what the term “workman” under the Industrial Disputes Act signified. Under that Act, a ‘workman’ means any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward…. In construing this expression, their Lordships observed that the essential condition is that the workman should be employed to do work in the Industry, that is to say, there should be an employment of his by the employer and that the relationship between the two should be as between employer and employed or as between master and servant. In construing this expression, their Lordships observed that the essential condition is that the workman should be employed to do work in the Industry, that is to say, there should be an employment of his by the employer and that the relationship between the two should be as between employer and employed or as between master and servant. The prima facie test for the determination of this relationship would be the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant has to do but also the manner in which he shall do the work. They further indicated that the question whether there was due control and supervision by the employer would depend upon the nature of the work. It was possible in certain circumstances to hold that even if a worker was paid not per day but by the job, he could still be a workman within the meaning of the Act. The definition of the worker obtaining in the Factories Act is in almost similar terms as in the Industrial Disputes Act. Further, their Lordships went on to say that the distinction between a workman and an independent contractor lies in the fact that while a workman agrees himself to work, an independent contractor agrees to get other persons to work. In this Judgment of the Supreme Court, certain observations of Denning, J. in Stevenson Jordan and Harrison Ltd. v. Macdonald and Evans,( 1952 1 T.L.R. 101) have been extracted as under.:- “There are many contracts of service where the master cannot control the manner in which the work is to he done as in the case of a captain of a ship. Lard Justice Somervell went on to say: One perhaps cannot go much beyond this. Lard Justice Somervell went on to say: One perhaps cannot go much beyond this. Was the Contract a contract of service within the meaning which an ordinary man would give under the words?!… It is often easy to recognise a contract of service when you see it but difficult to say wherein the difference lies A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot a taxi-man, and a newspaper contributor are employed under a contract for services One feature which seems to run through the instances is that under a contract of service a man is employed as part of the business, and his work is done as an integral part of the business; whereas under a contract for services his work, although done for the business, is not integrated into it but is only accessory to it.” The principle of this decision has been followed in numerous other cases. In Chintaman Rao v. State of Madhya Pradesh(1953 Mad. W.N. Crl. 99 (S.C.)) the Supreme Court dealt with a case of beedi manufacturers. The management entered into a contract with persons known as Satedars and supplied tobacco to these persons. Some of these persons maintained a small factory where they got beedis manufactured by engaging coolies. Others gave tobacco and beedi leaves to outsiders who prepared beedis in their houses. After beedies were rolled, the Satedars took them to the factory directly or through coolies where they were sorted and checked. The management paid the Satedars the cost of manufacture of beedies less the cost of the tobacco supplied. The second stage of the process of manufacture consisted in the labourers employed in the factory carrying out exclusively such duties as warming of the beedies, Wrapping, labelling and bundling them. It was found that the Satedars and their coolies were not subject to the supervision or control of the appellants. The decision was that in order to bring them within the scope of the Factories Act there must be a contract of employment between the management and the person employed and that a worker as defined in the Factories Act is one that enters into a contract of service under the management and does not include a person who is not under the control and supervision of the employer. In Palaniappa Mudaliar v. Court of Addl. First Class Magistrate(A.I.R. 1958 Mad.602=71 L.W. 552), a similar question arose. That was a case where workers were paid by a weaving concern at an agreed rate for each carpet or towel woven and the management had no control over these persons either regarding their attendance or their choice of work and these persons were at perfect liberty to work even for a competitor, should they choose to do so. These circumstances were relied upon by the learned Judge in holding that they-could not be said to be “employed” within the meaning of the Act. It is not necessary to multiply cases, but a Bench decision of this Court in Ratnasami Mudaliar In re.( (1959) 1 M.L.J. 60 : 72 L.W. 100), may be referred to. The petitioners in this case were owners of a weaving concern. They employed workers to work on certain handlooms which they had installed and casual piece workers manufactured towels and bedsheets on those handlooms. It was found that the residents of the neighbourhood, weavers by profession, would go to these factories as and when they found time and on being supplied with yarn by the owners would work on the looms and weave towels and bed-sheets. The evidence in the case indicated that the work would proceed at a fast or a slow pace as the workers liked. They would work or stop from work as they liked, and that there was no question of any control or supervision except that if the weaving was badly done, certain proportion would be cut out of their remuneration. The learned Judge found that a place where work is carried on by miscellaneous, heterogenous and irregular group of piece workers without any specific hours of work or control over t he regularity of the attendance or the nature or quantum of work to be done would not be a factory within the meaning of the term in Sec. 2 (m) of the Act. It is abundantly clear that the facts relating to the present case are no different from those in the above decisions. It is abundantly clear that the facts relating to the present case are no different from those in the above decisions. Notwithstanding the external trappings of a factory in that the accused in this case had either obtained a licence or put up notice boards specifying hours of work or maintained registers in a more or less indifferent manner it is established that the workers were not employed on any permanent basis. They were free to come and go as and when they liked, and the work could be stopped by the manager of the factory on rainy days or for lack of tobacco or when stocks accumulated on hand without any responsibility for payment of any salary to the workers on such days when work was not done. The work was also remunerated only on the quantity turned out by the worker. A worker could finish rolling such number of cigars as would earn him whatever amount he liked and could leave off work then. He was not compelled to stay at the factory between specified hours of work and continues to work there during those hours. The only measure of control or supervision that was exercised by the manager was to see that the quantity of tobacco supplied to the worker was not misused and that the product turned out by them was in good condition. These facts make it obvious that the contract was not a contract of service but a contract for services. The circumstance that these workers had to work in the premises of the employer makes no difference. That step was necessary because tobacco is an excisable commodity and could not be taken out of the premises and had to be accounted for by the management. The facts of this case to my mind are on all fours with the facts referred to in the decisions cited above. It accordingly follows that the workers do not fulfil the description contained in the definition, nor does the premises come within the scope of a factory as defined in the Act. The appeals by the State are dismissed. The Criminal Revision Case No. 340 of 1960 is allowed. The conviction of the petitioner is set aside.