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1962 DIGILAW 72 (GUJ)

STATE OF GUJARAT v. KANSARA MANILAL BHIKHALAL

1962-06-21

B.J.DIVAN, J.M.SHELAT

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B. J. DIVAN, J. ( 1 ) THIS is an appeal by the State of Gujarat against the order passed in appeal by the learned Sessions Judge Surendranagar sitting aside the order of conviction and sentence passed by the Judicial Magistrate First Class Wadhwan in respect of an offence under the Factories Act 1948. ( 2 ) THE prosecution case is that the accused in this case is the manager and occupier of a factory known as Saurashtra Metal and Mechanical Works Wadhwan and that he had contravened the provisions of sec. 63 of the Factories Act 1948 by allowing the workers of the factory to work otherwise than in accordance with the periods of work mentioned on the Notice Board and in the Register The prosecution case further is that on June 21 1960 at about 5-50 a. m. the Inspector of Factories Mr. K. C. Shah visited the factory in question and he found three workers working in the factory even though the time for these workers as mentioned in the notice Board and the Register was from 7 a. m. The defence of the accused was that at the relevant time he was not the manager and occupier of the factory but his partner Mr. D. A. Dangi was the manager The learned Magistrate after going into the merits of the question disbelieved this aspect of the matter and held that the accused was the manager and the occupier of the factory. The defence of the accused further was that the machinery of the factory in question had gone out of order on June 20 1960 which was repaired immediately and the work was started earlier the next day as an urgent order was to be executed by the factory; and that a letter was written to the Inspector of Factories on June 20 1960 That letter is Ex. 11 in the trial Courts record and by that letter intimation was sent that on June 21 1960 the rolling machine was to start work at 5 a. m. and therefore the letter was written for granting the permission for the same. ( 3 ) THE learned trial Magistrate convicted the accused under sec. 63 read with sec. 94 of the Factories Act 1948 and sentenced him to pay a fine of Rs. ( 3 ) THE learned trial Magistrate convicted the accused under sec. 63 read with sec. 94 of the Factories Act 1948 and sentenced him to pay a fine of Rs. 100/in respect of each of the three workers and thus he was sentenced to pay a fine of Rs 300/in default to suffer R. I. for one month. Against that order of conviction and sentence the accused went in appeal before the learned Sessions Judge Surendranagar. The learned Sessions Judge Surendranagar allowed the appeal and set aside the order of conviction and sentenced passed against the accused and acquitted the accused of the offences with which he stood charged. ( 4 ) THE main question to be considered in this appeal is the question whether the respondent-accused committed an offence under sec. 63 read with sec. 94 of the Factories Act 1948 In view of the fact that there was a previous offence admitted by the accused the provisions of sec. 94 can come into operation only if sec. 63 applies. Sec. 63 and 94 are penal sections and unless the offence committed is proved they will have no application. Sec. 63 provides as follows :- -NO adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made before hand against his name in the register of adult workers of the factory. ( 5 ) NOW the periods of work for adults are provided for under sec. 61. Sub-sec. (1) of sec. 61 provides as follows :- -THERE shall be displayed and correctly maintained in every factory in accordance with the provisions of sub-sec. (2) of sec. 108 a notice of periods of work for adults showing clearly for every day the periods during which adult workers may be required to work. ( 6 ) SUB-SEC. (10) of sec. 61 provides as follows :- -ANY proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub-sec. (1) shall be notified to the Inspector in duplicate before the change is made and except with the previous sanction of the Inspector no such change shall be made untill one week has elapsed since the last change. (1) shall be notified to the Inspector in duplicate before the change is made and except with the previous sanction of the Inspector no such change shall be made untill one week has elapsed since the last change. ( 7 ) IT is common ground between the parties and that has also been stated before the lower courts that there was no previous change and that this was the very first change so far as this particular factory was concerned. Hence the latter portion of sub-sec. (10) of sec. 61 cannot have any application. If there was any change in the system of work a mere notification of the same to the Inspector before the first change was made was quite sufficient to comply with the provisions of sub-sec. (10 ). Now the legislature has used the words system of work in sub-sec. (10) of sec. 61 and the term system of work is a comprehensive term including not merely hours of work but other conditions of work and the entire system of work under which an adult worker works in any particular factory. What is required by sub-sec. (10) is that if there is any proposed change in the system of work then the intimation has to be sent to the Inspector. In our opinion if on a particular single day there is a departure from the system of work already notified under sub-sec. (1) then that cannot be said to be a change in the system of work in the factory because a change in the system of work would mean either a permanent change or a change for a fairly long duration of time in the hours of work or any other condition. In this particular case what happened was that because of the stoppage of work on June 20 1960 certain orders remained to be executed and hence for one single day on June 21 1960 the factory in question for these three workers commenced work at 5 a. m. instead of at 7 a. m. For sake of abundant caution a letter seems to have been sent to the Inspector of Factories though on a proper reading of sub-sec. (10) it was not necessary to send any such intimation to the Inspector of Factories. (10) it was not necessary to send any such intimation to the Inspector of Factories. We wish to emphasize that in such a departure from the notified system to work there is no change in the system of work as such and hence it cannot be said that there was a change in the system of work. This conclusion that we have arrived at receives support from the judgment of a Division Bench of the Bombay High Court reported in the case of Emperor v. Nanabhai Maneklal 35 Bom. L. R. 1167 and at page 1171 it has been stated as follows :- -IT was a case not of any change in the standing order according to the ordinary use of language but of a departure from the standing orders on a special occasion. ( 8 ) IN such cases it was held that there was no breach of the then provisions of the Factories Act and it was held by the Division Bench that there was no offence committed by the accused in that case. In this case also because of the special circumstances which prevailed due to the machine getting out of order on June 20 1960 a departure from the system of work on a special occasion was made and in our opinion there was no necessity to intimate that departure on the special occasion to the Inspector of Factories. In any event such an intimation was in fact sent to the Inspector of Factories on June 20 1960 as shown by Ex. 11 on the record of the trial Court. ( 9 ) AS indicated above sec. 63 can come into operation only if there is a change or if any adult worker is asked to work or allowed to work in breach of the notified period and the system of work as contemplated by sec. 61 sub-sec. (1) or sub-sec. (10 ). Since we have come to the conclusion that there was a departure merely on a special occasion and no change in the system of work the provisions of sec. 63 cannot apply to the present case. In these circumstances in our opinion the learned Sessions Judge was right when he held that the accused had not committed any offence and when he set aside the order of conviction and sentence passed by the learned trial Magistrate. 63 cannot apply to the present case. In these circumstances in our opinion the learned Sessions Judge was right when he held that the accused had not committed any offence and when he set aside the order of conviction and sentence passed by the learned trial Magistrate. ( 10 ) IN these circumstances this appeal fails and is dismissed. Appeal dismissed. .