NANDKISHORE SAKARLAL v. STATE — 1967 DIGILAW 69 (GUJ)

A. D. DESAI, J. ( 1 ) CRIMINAL Appeals Nos. 861 of 1965 862 of 1965 and 863 of 1965 are filed against an order passed by the City Magistrate 11 Court Ahmedabad in each of the Criminal Cases convicting Nandkishore Sakarlal the occupier of the Sarangpur Cotton Manufacturing Company Limited Ahmedabad for having committed an offence under sec. 63 read with sec. 92 of the Factories Act 1948 referred to as the Act) and sentencing him in each case to pay a fine of Rs. 210/in default to undergo simple imprisonment for one month. ( 2 ) CRIMINAL Appeals Nos. 1154 of 1965 1155 of 1965 and 1156 of 1965 filed by Nandkishore Sakarlal the occupier of the Sarangpur Cotton Manufacturing Company Limited Ahmedabad (hereinafter referred to as the factory) against the orders of acquittal passed by the learned Magistrate acquitting Maneklal Jinabhai Kot the Manager Harivallabh Maganlal the Supervisor Stamping Department and Chandulal Lallubhai the Time-keeper of the Sarangpur Cotton Manufacturing Company Limited of the charge under sec. 63 read with sec. 92 of the Act. All these appeals raise common questions of law and fact and therefore I will dispose of the appeals by this judgment. ( 3 ) CRIMINAL Appeals Nos. 861 of 1965 862 of 1965 and 863 of 1965 relate to complaints filed by Mr. A. G. Shaikh Legal Assistant Factory Departments Ahmedabad against Nandkishore Sakarlal the occupier of the factory alleging that on December 28 1964 Mr. U. A. Pandya Senior Inspector of Factories Ahmedabad visited the factory at 7-05 P. M. and found that the three workers namely Chandulal Chhaganlal Rameshchandra Ratilal and Ratilal Thakarshi were allowed to work otherwise than in accordance with the periods of work displayed on the notice board in the factory. The Factory Inspector made a note of his inspection in the Visit Book on the same day. The occupier i. e. Nandkishore Sakarlal and the Manager Maneklal Jinabhai Kot were not present in the factory at that time. The Supervisor Harivallabh Maganlal was present in the factory. He told the Factory Inspector that the workers were employed by him due to the pressure of work. The inspection notes of the factory inspector were forwarded to the occupier and he was asked to submit his explanation in respect of the irregularities that were noticed by the factory inspector. The Supervisor Harivallabh Maganlal was present in the factory. He told the Factory Inspector that the workers were employed by him due to the pressure of work. The inspection notes of the factory inspector were forwarded to the occupier and he was asked to submit his explanation in respect of the irregularities that were noticed by the factory inspector. The occupier by his letter dated January 5 1965 submitted an explanation stating that Harivallabh Maganlal the Stamping Supervisor was in charge of the Stamping Department on the date of the offence; that he had instructed Harivallabh as well as the Departmental Heads several times In writing as well as orally not to employ workers otherwise than In accordance with the provisions of the Act; that he had appointed Departmental Heads who were responsible for observing the requirements of the provisions of the Act; that by a notification of the Government of India No. CC/tech/ahd/48-64/569 dated October 28 1964 it was ordered that the Mill should pack up approximately 29 0 0 meters of cloth during the period from October 20 1964 to December 31 1964 that upto December 28 1964 morning 4 35 0 meters remained to be packed and they were to be packed and baled before December 31 1964 that in the Stamping Department there was an accumulation of about 8 0 0 meters of cloth which was ready for stamping and unless the said cloth was arranged in proper stacks and katcha slips attached to them the said cloth could not be packed and baled and as this job could not be done by the ordinary stampers the Supervisor had asked the above-mentioned three persons to work overtime in the second shift for about four hours for which they were to be paid. Harivallabh the Supervisor did not inform the occupier or the manager or other officers of the factory but of his own accord and in order to meet with the above contingencies had asked the above mentioned three persons to work overtime; that he came to know of the incident on the next morning at about 11-30 A. M. when he came to the mills and immediately preliminary order of suspension was served on the Supervisor Harivallabh Maganlal. Chandulal Lallubhai the time-keeper was also served with a show cause notice calling for an explanation as to why an action should not be taken against him for allowing the said breach. The Factory Inspector after obtaining the requisite sanctions filed complaints against the occupier for committing breach of the provisions of sec. 63 of the Act punishable under sec. 92 thereof. ( 4 ) IN his statement under sec. 342 of the Criminal Procedure Code the accused that is the occupier of the factory stated that he had not committed any offence and claimed exemption under sec. 101 of the Act. ( 5 ) THE learned trial Magistrate held that the accused had failed to give three clear days notice in writing of his intention to have any other person whom he charged as the actual offender brought before the Court and that the accused was not diligent in enforcing the execution of the provisions of the Act and convicted the accused as aforesaid. ( 6 ) MANEKLAL Jinabhai Kot the Manager Harivallabh Maganlal the Supervisor Stamping Department and Chandulal Lallubhai the time-keeper of the factory pleaded guilty to the charge but they were acquitted as the occupier Nandkishore Sakarlal was not diligent in enforcing the provisions of the Act and thus failed to prove his defence under sec. 101 of the Act. ( 7 ) MR. D. K. Shah appearing for the occupier contended that the learned trial Magistrate was in error in holding that the occupier had failed to give three clear days notice in writing of his intention to have any other person whom he charged as the actual offender brought before the Court. Mr. Shah submitted that to claim an exemption under sec. 101 of the Act the occupier had to give three clear days notice of his intention to have any other person whom he charged to have committed the breach of the provisions of the Act and these three days were to be calculated from the time appointed for hearing the charge. In these cases the complaints were filed on March 22 1965 against the occupier for contravening the provisions of sec. 63 which is punishable under sec. 92 of the Act. In these cases the complaints were filed on March 22 1965 against the occupier for contravening the provisions of sec. 63 which is punishable under sec. 92 of the Act. The summons were issued on these complaints and were made returnable on April 22 1965 Summons were served on the occupier Nandkishore Sakarlal on April 21 1965 The occupier appeared in the Court through a lawyer on April 22 1965 and the lawyer gave an application in each of these cases requesting an adjournment on the ground that he had to take instructions from his client and therefore the cases were adjourned to April 29 1965 Similar applications were also given by the lawyer on April 29 1965 and the cases were adjourned to May 13 1965 for hearing the charge. In the mean time the occupier had served notices In each of these cases on April 30 1965 as required by sec. 101 of the Act to the prosecutor and intimating him of his intention to have the Manager Maneklal Jinabhai Kot the Supervisor Harivallabh and the timekeeper Chandulal Lallubhai whom he charged as actual offenders to be brought before the Court at the time appointed for hearing of the charge. The complaints against the Manager Maneklal the Supervisor Harivallabh and the time-keeper Chandulal were filed on May 6 1965 by the occupier In the Court of the learned Magistrate for having committed an offence under sec. 63 read with sec. 92 of the Act. The aforesaid notices were served on the prosecutor on April 30 1965 It was therefore contended by Mr. Shah that the material and effective date of hearing of the charges was May 13 1965 and thus in these cases three clear days notice in writing as contemplated by the provisions of sec. 101 of the Act was given. ( 8 ) MR. Mehta learned Assistant Government Pleader contended that three clear days notice as contemplated by sec. 101 of the Act had not been given in these cases. 101 of the Act was given. ( 8 ) MR. Mehta learned Assistant Government Pleader contended that three clear days notice as contemplated by sec. 101 of the Act had not been given in these cases. The date appointed for hearing the charge in these cases was April 22 1965 In pursuance of the complaints filed by the Legal Assistant Factory Department summonses were issued to the accused and the date mentioned for hearing the charge was April 22 1965 The cases were adjourned to April 29 1965 and again to May 13 1965 and these dates were adjourned dates on which the cases were to be heard. Mr. Mehta submitted that the accused should have therefore given three dear days notice as required by sec. 101 of the Act before April 22 1965 and that being not done the accused was not entitled to exemption under the provisions of sec. 101 of the Act. For the aforesaid proposition Mr. Mehta relied on the unreported judgment of Bhagwati J. in Mohanlal H. Kansara v. The State and others Criminal Reference No. 76 of 1961 delivered on February 16 1962 In that case the manager of the Factory was charged for non-observance of the working hours in respect of two workers and two criminal prosecutions were launched against the manager. Summonses were issued against the accused and the time appointed for hearing the charge was mentioned in the summons. The hearing of the two cases was adjourned from time to time at the instance of the accused and ultimately the prosecution commenced the evidence on August 18 1960 On that day i. e. August 18 1960 the accused filed a complaint against one Bhagwandas Ambalal Patel under sec. 101 of the Act alleging that he had used due diligence to enforce the execution of the Act and that it was Bhagwandas Ambalal Patel who had committed the offences in question without his knowledge consent or connivance. The Manager had also served on the prosecutor a notice on August 1d 1960 of his intention to have Bhagwandas Ambalal Patel brought before the Court at the time appointed for hearing the charge for having committed the offences. The Manager had also served on the prosecutor a notice on August 1d 1960 of his intention to have Bhagwandas Ambalal Patel brought before the Court at the time appointed for hearing the charge for having committed the offences. It vas contended in that case that the accused had not given three clear days notice of his intention to have Bhagwandas Ambalal Patel brought before the Court at the time appointed for hearing the charge as contemplated by sec. 101 of the Act as the notice was given on August 18 1960 Mr. Mehta particularly relied on the following observations in the judgment:-NOW in the present case I find that even if 18th August 1960 be taken as the date appointed for hearing the charge the accused did not give to the prosecutor not lees than three clear days notice in writing of his intention to have Bhagwandas Ambalal Patel brought before the Court at the time appointed for hearing the charge since the notice though dated 9th August 1960 was actually served on the prosecutor on 18th August 1960 being the date appointed for hearing the charge. I will assume for the purpose of this argument that 18th August 1960 was the date appointed for hearing the charge though the learned Government Pleader contended-and I think there is great force in his contention-that the date appointed for hearing the charge was the date mentioned in the summonses issued to the accused and that 18th August 1960 was the adjourned date when the prosecution actually commenced evidence. But even if 18th August 1960 be taken as the date appointed for hearing the charge it is clear that the accused did not comply with the second of the afore said two conditions since he did not give to the prosecutor not less than three clear days notice in writing of his intention to have Bhagwandas Ambalal Patel brought before the Court at the time appointed for hearing the charge. The accused was therefore not entitled to plead the exemption from liability provided by sec. 101 and the learned Magistrate once he came to the conclusion that the commission of the offences was proved against the accused was right in convicting the accused of the offences and sentencing him for the same. ( 9 ) IN order to determine the question at issue I will first refer to sec. 101 and the learned Magistrate once he came to the conclusion that the commission of the offences was proved against the accused was right in convicting the accused of the offences and sentencing him for the same. ( 9 ) IN order to determine the question at issue I will first refer to sec. 101 of the Act which runs as under:-101 Exemption of occupier or manager from liability in certain cases-Where the occupier or manager of a factory is charged with an offence punishable under this Act he shall be entitled upon complaint duly made by him and on giving to the prosecutor not less than three clear days notice in writing of his intention so to do to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if after the commission of the offence has been proved the occupier or manager of the factory as the case may be proves to the satisfaction of the Court (A) that he has used due diligence to enforce the execution of this Act and (B) that the said other person committed the offence in question without his knowledge consent or connivance that other person shall be convicted of the offence and shall be liable to the like punishment as if where the occupier or manager of the factory and the occupier or manager as the case may be shall be discharged from any liability under this Act in respect of such offences:-PROVIDED that in seeking to prove as aforesaid the occupier or manager of the factory as the case may be may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor:- Provided further that if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing the charge the Court shall adjourn the hearing from time to time for a period not exceeding three mouths and if by the end of the said period the person charged as the actual offender cannot still be brought before the Court the Court shall proceed to hear the charge against the occupier or manager and shall if the offence be proved convict the occupier or manager. The provisions of this section makes it clear that in order that the occupier should earn an exemption he must fulfill two conditions namely (1) he should make a complaint against the other persons whom he wishes to charge as actual offender and (2) he should give to the prosecutor not less than three clear days notice in writing of his intention to have the person brought before the Court at the time appointed for hearing the charge. After having fulfilled these conditions the occupier has to satisfy the Court that he has used due diligence to enforce the execution of the Act and that the persons whom he had charged for having committed the offence have done so without his knowledge consent or connivance. ( 10 ) IN light of the aforesaid provisions of law I will now consider the argument of Mr. Shah that the occupier had fulfilled the aforesaid conditions and had used due diligence to enforce the execution of the Act. ( 11 ) IT is undisputed that in these cases the date for hearing the charge was fixed on April 22 1965 and the summons for hearing the charge was served on April 21 1965 On April 22 and April 29 1965 application were given by the lawyer of the accused for adjournment of the cases on the ground that he had to take instructions from the client and the cases were adjourned. The Rojnamas recorded by the learned Magistrate in each of these cases show that on April 22 1965 and April 29 1965 the cases were adjourned for statement of the accused and on May 13 1965 the plea of the accused was recorded and the cases were adjourned again to June 8 1965 for hearing and recording of the evidence. The charge in each of these cases was explained to the accused on May 13 1965 Sec. 101 of the Act provides that a notice must be given by the occupier to the prosecutor of not less than three clear days and this time is to be calculated from the date appointed for hearing the charge. The date appointed for hearing the charge must mean that the date on which the accusation is to be explained to the accused. The date appointed for hearing the charge must mean that the date on which the accusation is to be explained to the accused. In these cases the accusation was explained to the accused on May 13 1965 and the notices to the prosecutor of the occupiers intention to proceed against the persons who in his opinion had committed that actual offence were to be brought before the Court were given on April 30 1965 Thus three clear days notice as contemplated by sec. 101 of the Act has been given in these cases. In Mohanlal H. Kansaras case (supra) the notice as contemplated under sec. 101 of the Act was given by the occupier on the date when the prosecution actually commenced the hearing and recording of the evidence and therefore it was held that the notice which was given by the occupier was not a legal and valid notice. The facts of the present cases reveal that the accusation was to be explained only on May 13 1965 i. e. that was the date appointed for hearing the charge. The summonses had mentioned that the charge was to be heard on April 22 1965 but the hearing of the charge was subsequently postponed to April 29 1965 and May 13 1965 and the charge was actually explained on that date. Therefore the time appointed for hearing charge i. e. the date on which the accusation was to be explained in these cases was May 13 1965 The phrase at the time appointed for hearing the charge occurring in sec. 101 of the Act must mean the time fixed for explaining the accusation to the accused. The procedure to be followed by the learned Magistrate for the trial of an offence under sec. 63 read with sec. 92 of the Act is the procedure which is followed in the trial of summons cases and sec. 242 of the Criminal Procedure Code requires that when the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted. This provision casts a duty on the Court to explain the accusation to the accused. This provision casts a duty on the Court to explain the accusation to the accused. Sec. 101 of the Act when it refers to at the time appointed for hearing the charge implies the time when the accusation is to be explained to the accused under sec. 242 of the Criminal Procedure Code. It should be noted that the phrase does not refer to the first date fixed for hearing the charge but refers to the date of hearing the charge i. e. the date on which the accusation is to be explained to the accused. In my opinion therefore the notices which have been given to the prosecutor by the occupier of his intention to have the Manager Maneklal Jinabhai the Supervisor Harivallabh Maganlal and the time-keeper Chandulal Lallubhai the persons whom he charged as actual offenders to be brought before the Court at the time appointed for hearing the charge were valid and legal notices and the learned Magistrate was in error in holding that the notices were not legal and according to law. ( 12 ) THE learned Magistrate has held that there was no evidence on the record to show that the accused had knowledge or consented or connived at the other person committing the offence and this finding has not been challenged before me. ( 13 ) MR. Shah then urged that the finding of the learned trial Magistrate that the accused was not diligent in enforcing the provisions of the Act was erroneous. Mr. Shah submitted that the Factory Inspector in his evidence admitted that Nandkishore Shakarlal the occupier and Maneklal Jinabhai the manager of the Mills were not present at the time when the Inspector visited the Mills. The evidence of the occupier also proved that he had appointed heads in each department and dad instructed them both orally as well as in writing to strictly comply with the provisions of the Act and particularly instructed them that there should not be double employment. The occupier has proved circulars and instructions intimating the supervisors not to employ workers in breach of the provisions of the Act. The Manager was appointed for general supervision and his function was to observe that the legal provisions had been complied with. When the occupier was informed of these offences. the Manager the Supervisor and the Time-keeper were suspended and explanations were sought from them. The Manager was appointed for general supervision and his function was to observe that the legal provisions had been complied with. When the occupier was informed of these offences. the Manager the Supervisor and the Time-keeper were suspended and explanations were sought from them. The Supervisor Harivallabh had also committed a similar offence on May 26 1961 and at that time he was suspended for four days. This evidence of the witness had not been challenged in the cross-examination. The Manager the Supervisor and the Time-keeper were responsible for the offences and they categorically admitted their guilt and there was nothing on the record to show that this was the result of collusion between the occupier and the employees or that they had done so to oblige the occupier. On the basis of this evidence on record Mr. Shah argued that the occupier had taken due diligence in enforcing the execution of the provisions of the Act. The occupier had fulfilled all the conditions to earn an exemption under the provisions of sec. 101 of the Act and therefore he was entitled to an acquittal in all cases. Mr. Shah relied on the judgment of the Supreme Court in Maneklal J. Kot v. State of Gujarat Cr. Appeals Nos. 198 to 205 of 1964 dated January 30 1967 and particularly on the following observations:-THE point to be noted in the evidence of the Factory Inspector and of the appellant is that the Inspector admits that the appellant was not present at the time of his inspection and that the second respondent and the third respondent was present and that the second respondent is the salesman and the third the supervisor. He accepts that particular persons have been appointed in the Mill as heads of the various departments and that the Salesman is generally the head of the Cloth Department including the Stamping Department. He also admits that the appellant has issued notices exhibits 9 to 12 warning the heads of departments to strictly comply with the provisions of the Act and also stating that there should be no double employment. He also admits that the appellant has issued notices exhibits 9 to 12 warning the heads of departments to strictly comply with the provisions of the Act and also stating that there should be no double employment. The appellants evidence that the second respondent was in charge of the Cloth Department at the material time and that he has been warned against double employment on several occasions and that he was not aware of the employment of the workers concerned in the third shift on the morning of May 26 1961 have not been challenged. The answers given by the appellant that he did not give his consent to the working of those concerned workers and that he has no knowledge about their having worked at the material time is not also seriously challenged. More than that there is absolutely no suggestion made to the appellant that there is any sort of collusion between him and respondents 2 and 3 and that the latter are merely admitting the offence in the cross-complaint filed by the appellant to oblige him Respondents 2 and 3 have categorically admitted the offence mentioned against them in the cross-complaint; and the appellant has not been cross-examined by them as they are entitled to under the first proviso to sec. 101. We are particularly referring to some of these aspects because in our opinion those are all matters which should have been properly taken into account by the Magistrate and the High Court for considering the question as to whether the appellant has proved to the satisfaction of the Court the two essential matters dealt with by clauses (a) and (b) of sec 101 of the Act. ( 14 ) IN my opinion Mr. Shah is right in his contentions. The evidence on record establishes that the appellant was not present at the time when the Inspector visited the Factory that he had appointed efficient persons as Heads of the departments and instructed them by issuing circulars to comply with the provisions of the Act. The evidence also discloses that Harivallabh had employed the workers without consulting the occupier. The learned trial Magistrate has held and the said finding has not been challenged before me that the occupier had no knowledge of double employment and that he had not consented to or connived at the double employment of these workers. The evidence also discloses that Harivallabh had employed the workers without consulting the occupier. The learned trial Magistrate has held and the said finding has not been challenged before me that the occupier had no knowledge of double employment and that he had not consented to or connived at the double employment of these workers. The occupier has in these cases satisfied all the conditions of sec. 101 of the Act and therefore the learned trial Magistrate was in error in convicting the occupier under the provisions of sec. 63 read with sec. 92 of the Act The learned trial Magistrate was also in error in acquitting Maneklal Jinabhai Kot the Manager Harivallabh Maganlal the Supervisor and Chandulal Lallubhai the Time-keeper of offences under sec. 63 read with sec. 92 of the Act. The three accused had pleaded guilty to the offence with which they were charged. ( 15 ) I therefore hold that Maneklal Jinabhai Harivallabh Maganlal and Chandulal Lallubhai are guilty of the offence under sec. 63 read with sec. 92 of the Act and sentence each of them to pay a fine of Rs. 210/in default to suffer simple imprisonment for one month in each of the Criminal Appeals Nos. 1154 of 1965 1155 of 1965 and 1156 of 1965. The orders of acquittal of Maneklal Jinabhai Harivallabh Maganlal and Chandulal Lallubhai are set aside and Criminal Appeals Nos. 1154 of 1965 1155 of 1965 and 1156 of 1965 are allowed. ( 16 ) THE orders of conviction of the occupier of the factory Nandkishore Sakarlal in Criminal Appeals Nos. 861 of 1965 862 of 1965 and 863 of 1965 are set aside and he is acquitted in all the three appeals. The fine if paid by the occupier to be refunded. Criminal Appeals Nos. 861 of 1965 862 of 1965 and 863 of 1965 are allowed. Orders accordingly. .