JUDGMENT : Narasimham, C.J. - This is a revision against the appellate judgment of the Sessions Judge of Puri maintaining the conviction of the two Petitioners u/s 92 of the Factories Act and the sentence of fine of Rs. 60 - passed on each of them for that offence. 2. One Venkata Rao (p.w. 1), Inspector of Factories inspected the East Coast Wood Work on 12-7-1962 at 11.30 a.m. He found 10 workers working in the factory and a 27 H.P. Diesel Engine being used for driving the vertical band saw and the grinder. Petitioner Debaraja Acharya was there. The factory had not been registered under the provisions of the Factories Act. The Inspector then prepared It report of inspection of the factory in the printed form and got it signed by Debaraja Acharya as partner of East Coast Wood Work, Nayagarh and also prepared a statement showing the number of workers in the factory and then initiated a prosecution against the two Petitioners for having run a factory without applying for registration and obtaining a regular license as required under the Orissa Factories Rules. 3. The liability to apply for registration and to take out the necessary license is on the occupier' of a factory as defined in Clause (n) of Section 2 of the Factories Act. So far as Petitioner Debaraja Acharya is concerned, as he was admittedly present there and signed the inspection report Ext. 2 describing himself as the partner of the factory, the lower courts were justified in holding that he was one of the occupiers as defined in Clause (n) of Section 2 of the Act. But so far as Petitioner Raghunath Mohapatra is concerned, there is absolutely no evidence to show that he had any control over the affairs of the factory. Venkata Rao appears to have made some sort of general enquiry at the spot, but that would not suffice to show that Raghunath Mohapatra was an occupier. Some other evidence should have been led to prove affirmatively that he had ultimate control over the working of the factory. In the absence of such evidence he must be acquitted. So far as the conviction of Debaraja Acharya is concerned, Mr. Asok Das urged that on the report of the Inspector itself it was clear that out of the 10 workers found in the factory 6 were day labourers Mr. In the absence of such evidence he must be acquitted. So far as the conviction of Debaraja Acharya is concerned, Mr. Asok Das urged that on the report of the Inspector itself it was clear that out of the 10 workers found in the factory 6 were day labourers Mr. Das urged that day labourers might not be 'workers' as defined in Clause (1) of Section 2 of that Act and that consequently the establishment cannot be called a factory. He relied on Shankar Balaji Waje Vs. State of Maharashtra, where it was held on the evidence added in that case that a person who was not bound to attend the factory for the work for any fixed hours or for any fixed period and was free to go to the factory at any time he liked and was equally free to leave the factory whenever he liked to absent himself, that person was not a worker inasmuch as he was not 'employed' in the factory. But there is no evidence here to show that the day labourers were free to work for such period as they liked, free to come and go whenever they chose and free to absent themselves at their own sweet will. Hence the aforesaid Supreme Court decision cannot be applied. Mr. Das also could not cite any decision to show that a day labourer cannot under any circumstance be a worker as defined in the Factories Act. The Inspector of Factories was not cross-examined to establish that these day labourers were not workers as defined in that Act. In the absence of further evidence on record I see no reason to disbelieve the evidence of the Inspector of Factories that they were also workers in the factory. 5. Mr. Das then contended that in accordance with they definition of 'factory' as given in Sub-clause (1) of Clause (m) of Section 2 of the Factories Act, the day, the number of labourers working in the factory became 10 or more was the crucial date for deciding whether the institution became a factory or not. According to Mr. Das, therefore, as 10 workers were found only on the date of inspection by the Inspector, namely, 12-7-1962, the occupier could apply for registration within 12 months from that date. This argument though ingenious is wholly unsustainable. According to Mr. Das, therefore, as 10 workers were found only on the date of inspection by the Inspector, namely, 12-7-1962, the occupier could apply for registration within 12 months from that date. This argument though ingenious is wholly unsustainable. It is not the case of anyone that the factory started to work only on the date of inspection by the Inspector. The Inspector made a surprise inspection and found that the factory was working in full swing. Petitioner Debaraja Acharya as a partner of the firm is, the best' person to say when the factory began to work, but he has discreetly avoided the witness box. In the absence of any evidence we cannot assume that 10 workers were employed in the factory for the first time only on the date of inspection, namely, 12-7-1962. It is also not correct to say that the occupier of the factory need apply for registration only within 12 months after the date on which the factory commenced its working. He should apply for registration and for necessary license before the factory begins to function as a factory. 6. For these reasons, I modify the order of the lower appellate court as follows. The conviction and sentence passed on Raghunath Mohapatra, Petitioner No. 1 are set aside and he is acquitted. The conviction and sentence passed on Debaraja Acharya, Petitioner No. 2 are maintained and his revision petition is dismissed. The revision petition is disposed of accordingly. Final Result : Dismissed