M. P. THAKKAR, J. ( 1 ) THIS common judgment will dispose of Criminal Appeals Nos. 86 of 1969 87 of 1969 and 88 of 1969 which raise common questions of facts and law. The three appeals arise out of an order of conviction and sentence passed by the learned City Magistrate 11 Court Ahmedabad on December 9 1968 in Criminal Cases Nos. 2343 2344 and 2345 of 1968. ( 2 ) THE appellant is the Manager of a textile mill known as the Ashok Mills Ltd. situated on Naroda Road Ahmedabad. The three prosecutions which resulted in the order of conviction and sentence stemmed from an incident which occurred on June 21 1968 on the premises of Ashok Mills Ltd. It is the prosecution case that three workers namely Manga Khoda Jivraj Jilu and Virchand Chhagan were found working on the Mill premises at 7-45 p. m. The Mill was working in three relays. For relay No. 1 the starting time was 7-00 a. m. and the stopping time was 3-30 p. m. For relay No. 2 the starting time was 3-30 p. m. and the stopping time was 12 midnight. The notified hours of rest as per Form No. 14 under Rule 87 were 7-30 p. m. to 8-00 p. m. (see Ex. 13 ). These were the hours applicable to several departments including the Frame Department. The evidence of P. W. 2 D. D. Dhruva Senior Inspector of Factories shows that on June 21 1968 when he visited the Frame Department of the said factory at 7-45 p. m. he found that even though it was recess time three frames were working and three persons namely Manga Khoda Jivram Jilu and Virchand Chhagan were operating frames Nos. 8 10 and 15 respectively. The said workers belonged to group A in the second relay. It is not in dispute that the names of these three workers were entered in the muster roll. It is also not in dispute that the recess time was from 7-30 to 8-00 p. m. P. W. 2 Dhruva at the time of inspection made an entry in the Inspection Book in this connection which is produced at Ex. 14. In view of this state of affairs the appellant who is the Manager of the said Factory (as disclosed by Ex. 15) was prosecuted. 14. In view of this state of affairs the appellant who is the Manager of the said Factory (as disclosed by Ex. 15) was prosecuted. ( 3 ) THE defence of the appellant was that he had not allowed the workers to work during the recess time. In fact in so far as Manga Khoda one of the three workers who was found working during the recess time was concerned action had been taken in past against him for working during the-recess time in contravention of the direction. It was also contended that instructions had been given to all the workers that they should refrain from working in the frame Department during the recess hours. The defence also examined the aforesaid three workers as defence witnesses and their evidence is to the effect that they had not been asked to work but that they were working of their own accord on that particular day. The learned Magistrate did not accept the plea of the defence and convicted the appellant in the manner stated earlier. Thereupon the appellant had approached this Court by way of three separate appeals which are now being disposed of by this judgment. ( 4 ) THE only question that arises is whether an offence under sec. 63 read with sec. 92 of the Factories Act 1948 can be said to have taken place having regard to the defence pleaded by the appellant. The learned counsel for the appellant has placed into focus the expression no adult worker shall be required or allowed to work and has argued that unless it is established by the prosecution that the workers who were found working during the recess hours did so at the appellants instance or were required to do so by him or that he had allowed them to work during the recess hours the appellant cannot be found guilty for an offence under sec. 63 read with sec. 92 of the Act. The expression required or allowed to work came up for construction before the then High Court of Bombay in Criminal Revision Application No. 1222 of 1948 The High Court speaking through Chagla C. J. has interpreted the provision in the following manner:- on the question of conviction Mr. 63 read with sec. 92 of the Act. The expression required or allowed to work came up for construction before the then High Court of Bombay in Criminal Revision Application No. 1222 of 1948 The High Court speaking through Chagla C. J. has interpreted the provision in the following manner:- on the question of conviction Mr. Shah for the accused has attempted to argue that if once it is established that the offence was committed without the knowledge consent or connivance of the manager then it could not be stated that there was any offence within the meaning of sec. 60 because according to Mr. Shah sec. 60 (b) requires that a workman must be allowed to work in contravention of the provisions of the Act and if the workman worked without the knowledge consent or convenience of the manager it cannot be stated that he was allowed to work by the manager. In our opinion that contention is entirely fallacious. The scheme of the Act is that it makes the manager or occupier primarily responsible for seeing that the provisions of the Factories Act are duly enforced. It is only in exceptional cases set out in sec. 71 that the manager or occupier can escape his liability or responsibility. Now allowing a person to work does not require any positive act on the part of the manager or occupier. In our opinion even if the manager or occupier acquiesces in the workman working contrary to the provisions of the Factory Act then the employee is allowed to work by the manager or the occupier within the meaning of sec. 60. Now in this case the evidence is clear that nothing was done by the accused to prevent these three workmen from working overtime. It has been laid down that having regard to the scheme of the Act the manager or occupier is primarily responsible for ensuring that the provisions of the Factories Act are duly enforced. It has been observed that for holding the manager responsible for allowing a person to work it is not necessary to prove any positive act on the part of manager or occupier. It has been observed that for holding the manager responsible for allowing a person to work it is not necessary to prove any positive act on the part of manager or occupier. Even if the manager or occupier acquiesces in the workmen working contrary to the provisions by doing nothing to prevent the worker from contravening the provisions of the Factories Act it will give rise to an offence under the relevant section of the Factories Act. This proposition was endorsed with approval by the then Bombay High Court in a subsequent matter namely in Criminal Appeal No. 560 of 1954 decided on July 29 1954 In that case the learned Magistrate who tried the Manager of a factory for an offence under sec. 63 read with sec. 92 upon workers being found working at the Mill during the recess hours accepted the argument that the workers may have been found working at the Mill earlier than the authorised hour and that there was nothing to show that they were required to work during the recess hours. The learned Magistrate took the view that sec. 92 did not import an absolute liability and before sec. 92 could be applied it must be shown that the manager or occupier allowed or required the workmen to work contrary to the prescribed working hours. The State appealed and the High Court set aside the order of acquittal. In doing so the High Court speaking through Gajendragadkar J. as he then was dealt with the plea raised by the defence in the following words:- in the present appeals it has been urged before us by the learned Government pleader that the question which these appeals raised has already been decided by two different Division Benches of this Court and the decision in both the cases is against the view taken by the learned Magistrate. In Criminal Appeal No. 120 of 1950 Mr. Justice Vyas and myself had to consider precisely the same point and have held that the obligation must be taken to be absolute in view of the words used in sec. 92 of the Factories Act. We had considered the scheme of the Act as is evidenced from the provisions of secs. 63 92 and 101 and we had rejected the plea of the accused in that appeal when we said that he had not required the breach to be committed. 92 of the Factories Act. We had considered the scheme of the Act as is evidenced from the provisions of secs. 63 92 and 101 and we had rejected the plea of the accused in that appeal when we said that he had not required the breach to be committed. The same view appears to have been taken by Chagla C. J. and Tendolkar J. in Criminal Revision Application No. 1222 of 1948 the judgment having been delivered on 15th October 1948 Therefore in view of the decisions we must hold that the learned Magistrate was in error in accepting the plea made before him by the respondent under the provisions of sec. 63 of the Indian Factories Act. The position of law is therefore fairly well-settled. The expression allowed employed in sec. 63 will be attracted even if the Manager does not play any positive role and does not call upon the workers to work during the recess hours. It is not essential for the prosecution to show that it was at the instance of the Manager that the workers were working. It is sufficient if it is shown that the Manager did not take sufficient steps to prevent the workers from working during the recess time. ( 5 ) THE learned counsel for the appellant however argues that in the present case sufficient steps were indeed taken to prevent the workers from working. It is pointed out that the evidence of D. W. 4 Pransukhlal Ladia who was working as a Spinning Master at the material time reveals that he had issued oral instructions to the workers not to work in the recess time. This according to the learned counsel is the only step which the law may expect the Manager to take to prevent the workers from working during the recess time. If this argument were to be accepted all that has to be shown by the Manager is that oral instructions had been issued to the workers not to contravene the provisions of law and not to work during the recess time and that notwithstanding these instructions the workers had violated the provisions and worked during the recess time. It is not possible to countenance this submission. Nor is it sufficient to show that no compulsion or inducement was employed to make the workers attend the factory during the recess hours. It is not possible to countenance this submission. Nor is it sufficient to show that no compulsion or inducement was employed to make the workers attend the factory during the recess hours. One of the objects of imposing the restriction to refrain from working during the recess time is to ensure that the health and physical well-being of the workers is preserved. Therefore the willingness on the part of the workers is totally immaterial. The question then is whether the Manager had done all that reasonably could be expected of him to ensure that the workers were prevented from working during the recess hours. In the present case the evidence of D. W. 4 Pransukhlal shows that a violation had taken place on an earlier occasion on March 27 1968 and it was on this account that he had issued oral instructions not to do so in future. But issuing of oral instructions cannot be considered to be a sufficient step. It cannot be said that asking the workers not to violate the provisions would amount to preventing them from working during the recess hours. A mere oral admonition cannot be considered sufficient. The management should have taken steps to make it difficult if not impossible for the workers to enter the Department during the recess hours. The evidence of Pransukhlal shows that it is the usual practice for the Jobber and the Supervisor to ensure that during recess time the Department is vacated and cleared of all the workers. If this was done it means that the workers must have re-entered subsequently. There is no evidence to show that any action was taken by the management to prevent their re-entering the Department. The management could have closed the doors of the Department or posted a watchman there. In fact usually for reasons of security the management would not allow a worker to enter the department during the hours when department is not working. It is therefore difficult to comprehend how the workers obtained access without the acquiescence of the management or somebody connected with the management. Under these circumstances it cannot be said that the appellant had taken the necessary steps to prevent the workers from working during recess time so as to render himself immune from the charge of having acquiesced. It is therefore difficult to comprehend how the workers obtained access without the acquiescence of the management or somebody connected with the management. Under these circumstances it cannot be said that the appellant had taken the necessary steps to prevent the workers from working during recess time so as to render himself immune from the charge of having acquiesced. This would amount to allowing the workers to work during the recess hours in contravention of the regulations. ( 6 ) IT is argued by the learned counsel that the workers concerned were piece rate workers and therefore an inference should be drawn that they were working during the recess hours for their own benefit. The evidence does show that they were piece rate workers and their wages depended on the quantum of work done. That however does not mean that the management is exonerated of its responsibility. The relevant provisions of the Factories Act have been enacted as has been observed earlier to ensure that the health and physical well-being of the workers is preserved. When the workers are allowed to put in manual labour at a stretch without recess whether they do so voluntarily or otherwise it is likely to impair their health and physical well-being. Under pressure of economic distress the workers may even be willing to go on working without availing of the rest time. The health and well-being of the workers who constitute the precious wealth of the nation is not a matter of their private concern. The entire society and the welfare State in this enlightened age has a vital (very vital) stake in their health and well-being. It is inter alia to protect the workers from the risk arising from their own ignorance and helplessness that the Factories Act has provided by sec. 63 that the workers shall not be allowed to work during the recess hours and the obligation in this behalf has been imposed on the manage-ent. Under these circumstances the order of conviction and sentence recorded in connection with Virchand Chhagan and Jivraj Jilu must be confirmed. ( 7 ) WITH regard to the case arising in connection with worker Manga Khoda the learned counsel for the appellant has pointed out that this worker had previously been found working during recess time and that he had been warned. The worker concerned has been examined as defence witness No. 3. ( 7 ) WITH regard to the case arising in connection with worker Manga Khoda the learned counsel for the appellant has pointed out that this worker had previously been found working during recess time and that he had been warned. The worker concerned has been examined as defence witness No. 3. His evidence discloses that he had worked for 3 minutes more on March 27 1968 in the recess and that warning card Ex. 27 had been issued by the management. Further more he testified that the Spinning Master (Shri Ladia) had warned him orally 15 days previous to the incident not to work in the recess. Reliance has also been placed on Ex. 27 which is a last notice of warning served by Shri Ladia on witness Manga Khoda calling upon him to desist from working in the recess time. It is also shown by the evidence that this witness was suspended in connection with the aforesaid accusation. It is therefore argued that the management had done all that was within its power in so far as this workman was concerned. However taking of action after the provision was violated (like closing the stable after the horse has fled) cannot be said to be a step in the direction of preventing the workman from infringing the provisions of the Factories Act. The action taken is post facto action of a penal character. What is required is a prophylactic action to prevent a worker from working during the recess time. Under the circum-stances the plea of the defence cannot be accepted even in connection with the case of Manga Khoda. ( 8 ) THE learned counsel for the appellant lastly relied on Maneklal Jinabhai Kot v. State of Gujarat A. I. R. 1967 Supreme Court 1226. In that case however the question was whether the Manager was liable or whether the Supervisor was liable. That question was raised in the context of sec. 101 of the Factories Act which provides that 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. In that case the High Court had come to the conclusion that the Manager was liable and not the Supervisor notwithstanding the fact that the Supervisor had flouted a mandate given by the Manager not to contravene the provisions of law. The order of discharge as against the Supervisor was not under challenge. The decision of that case turns on the question as to whether the Manager would be exonerated if the real offender was the Supervisor who in violation of the mandate of the Manager had allowed the contravention of the Factories Act to take place. That decision cannot come to the rescue of the appellant in the present case as we are not concerned with the liability arising in the context of sec. 101. ( 9 ) COMING now to the question of sentence having regard to the fact that the workers have themselves admitted that they were not forced to work and that notwithstanding a warning given to them they had worked during the recess time and thereby contravened the provisions of law this is a case where in regard to the matter of sentence a lenient view requires to be taken. It is not a case where a deterrent sentence is required to be imposed. Having regard to the facts and circumstances of the case it would appear that though the Manager has not taken the necessary steps to prevent the commission of the offence he had issued the warning to the workers not to do so and this warning does not appear to be a camouflage on the part of the defence. It appears to be a genuine warning on the facts and circumstances of the present case. A case where the defence of warning having been given is a sham defence would no doubt stand on a different footing. Here I am satisfied that the evidence on that aspect is reliable. In view of this circumstance a token sentence will serve the ends of justice. Accordingly the sentence of fine of Rs. 300. 00imposed by the learned City Magistrate is altered and reduced to a sentence of fine of Rs. 25. 00on each count. In default of payment of fine the appellant will undergo simple imprisonment for 15 days on each count. Accordingly the sentence of fine of Rs. 300. 00imposed by the learned City Magistrate is altered and reduced to a sentence of fine of Rs. 25. 00on each count. In default of payment of fine the appellant will undergo simple imprisonment for 15 days on each count. ( 10 ) ALL the three appeal fail and are dismissed subject to the modification in the order of sentence which is reduced from Rs. 300. 00on each Count to Rs. 25. 00in each case. .