STATE OF GUJARAT v. NATVERLAL D. SHAH — 1975 DIGILAW 21 (GUJ)

C. V. RANE, J. ( 1 ) THIS judgment will govern the disposal of criminal appeal Nos. 785 of 1973 and 786 of 1973 the facts of which are similar to a great extent and which involve a common question of law. ( 2 ) THE respondent Natvarlal D. Shah is a partner in Shri Mahalaxmi Board and Paper Mill hereinafter referred to as the Mill at Bulsar. When the factory inspector Harshavadan Jethabhai Patel visited the above mill on 2-12-1972 which is a factory under the provisions of the Factories Act 1948 hereinafter referred to as the Act he found that no urinal or latrine was provided for the workers in the factory premises. He therefore filed two separate complaints against the respondent for the offence punishable under sec. 92 of the Act. The learned Magistrate acquitted the accused in each of the two cases and being aggrieved by his order the State has come in appeal to this Court. ( 3 ) CRIMINAL appeal No. 785 of 1973 arises out of the order of acquittal passed by the learned Magistrate in summary case No. 393 of 1973; whereas criminal appeal No. 786 of 1973 arises out of a similar order passed by the learned Magistrate in summary case No. 395 of 1973. ( 4 ) ACCORDING to rule 45 of the Gujarat Factories Rules 1963 here in after referred to as the Rules There shall be at least one urinal for every 50 male workers or part thereof employed at a time. Rule 41 (b) of the rules provides where males are employed there shall be at least one latrine for every 25 males; provided that where the number of males employed exceeds 100 it shall be sufficient if there is one latrine for every 25 males upto the first 100 and one for every 50 thereafter it has been further provided in the above rule that in calculating the number of latrines required under this Rule any odd number of workers less than 25 or 50 as the case may be shall be reckoned as 25 or 50 and the number of workers to be considered shall be the maximum number employed at any time during the day. In summary case No. 393 of 1973 it was the case of the prosecution that the accused had not provided any urinal for the male workers and committed breach of rule 45. In summary case No. 395 of 1973 it was the prosecution case that the accused had not provided any latrine as contemplated by rule 41 (b) of the Rules. The above facts are not disputed by the accused and he has admitted in his statement recorded by the learned Magistrate that he had not provided any urinal or latrine for the workers. His defence is that the mill is not a factory within the meaning of sec. 2 (m) of the Act and hence the provisions of the Act or the Rules are not applicable to the mill and in that case he has not committed any offence under the Act. Relying on the decision in the case of In re S. Sanjeevaraya Shetty A. I. R. 1964 Madras 8 the learned Magistrate accepted the above defence of the accused and acquitted him of the offence he was charged with in both the cases. In this Court the accused though duly served with a notice has not come forward to contest these appeals. ( 5 ) IT is found from the evidence on record in each of these two case that the factory works in two shifts and according to the muster roll 12 to 13 persons are working in the factory every day. The evidence to the above effect was not challenged in the trial Court. It is further found from the application dated 19-2-1973 of the accused for renewal of the licence that the number of workers for two shifts was 18. This shows that the fact that more than 10 workers were working in the factory is not disputed by the accused. It was however his defence that during each shift less than ten persons worked and hence the mill is not a factory. ( 6 ) IT is argued by the learned Assistant Government Pleader that the mill in question is a factory as defined in sec. It was however his defence that during each shift less than ten persons worked and hence the mill is not a factory. ( 6 ) IT is argued by the learned Assistant Government Pleader that the mill in question is a factory as defined in sec. 2 (m) of the Act which runs as under :- (M) factory means any premises including the precincts thereof (I) whereon ten or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on or (II) whereon twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on but does not include a mine subject to the operation of the Mines Act 1952 or a railway running shed;for the purpose of understanding the true meaning of the term factory used in the above section it is necessary to take into consideration the definition of the term day. According to section 2 (c) of the Act day means a period of twenty four hours beginning at midnight. It is not disputed that the manufacturing process is being carried on with the aid of power in the mill in question. We are therefore concerned only with sub-clause (i) of clause (m) of sec. 2 of the Act. In the case of S. Sanjeevaraya Shetty (supra) the learned single Judge of the Madras High Court has analysed the above provision in the following manner :- The learned Public Prosecutor contended that when ten or more worker re working on any day the premises will be a factory. There are two clauses to the subsection one is where ten or more workers are working and the other is where ten or more workers were working on any day of the preceding 12 months. There are two clauses to the subsection one is where ten or more workers are working and the other is where ten or more workers were working on any day of the preceding 12 months. Whereas the words were working on any day are found in the second clause the first clause reads merely as 10 or more workers are working In the absence of the words on any day in the first clause it cannot be read as ten or more workers working on any day The presence of the comma after the word working is significant Therefore to come under the first clause the prosecution will have to prove that 10 or more workers are working This can only be done by proving that when the officer was on the premises 10 or more persons were working. According to the learned Judge to come under the first clause the prosecution will have to prove that ten or more workers are working. This can only be done by proving that when the officer was on the premises 10 or more persons were working. Thus according to the learned Judge in order to attract the provisions of the first clause the prosecution will have to prove that at the time when the concerned officer was on the premises 10 or more persons were actually working. If the above reasoning is adopted even though more than ten persons are employed for working on a particular day the provisions of the first clause would not be attracted if at the time when the premises are inspected by the officer concerned less than ten persons are found actually working as some of the workers were on leave on that particular day. Such a view is however not warranted in view of the clear meaning of the word factory as given in sub-clause (i) of clause (m) of sec. 2 of the Act with which only has observed above we are concerned in these appeals. ( 7 ) IN order to understand the true meaning of the words ten or more workers are working in the first part of sub-clause (I) of clause (m) of sec. 2 of the Act it should be borne in mind that unless a person is employed as a worker as contemplated by sec. ( 7 ) IN order to understand the true meaning of the words ten or more workers are working in the first part of sub-clause (I) of clause (m) of sec. 2 of the Act it should be borne in mind that unless a person is employed as a worker as contemplated by sec. 2 (L) of the Act he cannot be treated as a worker or said to be working as a worker for the purpose of clause (m) of sec. 2 of the Act. On the basis of the above reasoning it would be reasonable to hold that the words ten or more workers are working are used in sub-clause (i) of clause (m) of sec. 2 to mean that ten or more workers are employed to work irrespective of the fact that on a particular day or at a particular time the number of workers actually found working is less than ten due to some reason or the other. In other words as soon as it in proved that ten or more persons are employed per day as workers within the meaning of clause (L) of sec. 2 of the Act the provisions of the first part of sub-clause (i) of clause (m) of sec2 would be attracted and the premises whereon they are working would be a factory. The words workers are working cannot be read in isolation but they should be read in the light of the meaning of the term worker given in clause (L) of sec. 2 of the Act for the purpose of finding out the true meaning of the words ten or more workers are working occurring in sub-clause (i) of clause (m) and when they are so read it becomes evident than those words apply to only those persons who are employed as workers as contemplated by clause (L) of sec. 2. This shows that the condition of being employed as a worker is a prerequisite for the application of the clause (m) of sec. 2 and In that case the words ten or more workers are working in the first part of sub-clause (i) of clause (m) can be interpreted in only one way as stated above. 2. This shows that the condition of being employed as a worker is a prerequisite for the application of the clause (m) of sec. 2 and In that case the words ten or more workers are working in the first part of sub-clause (i) of clause (m) can be interpreted in only one way as stated above. This would mean that if ten or more workers are actually found working on a particular day or at a particular time of the day the first part of sub-clause (i) of clause (m) reading whereon ten or more workers are working would apply. The above sub-clause would also apply to a case where ten or more workers are employed for working on a particular days thou h the number of workers actually found working on that day is less than ten as a result of some of the workers failing to report for duty on that day due to some reason or the other. Thus according to me the words ten or more workers are working; in the first part of sub-clause (i) of clause (m) mean ten or more workers are employed per day and those words are not used with reference to any shift or a particular point of time during the day. The above view is supported by the interpretation of the words were working on any day of the preceding twelve months occurring in the 2nd part of sub-clause (i) of clause (m) to which I shall instantly refer. ( 8 ) WHEN both the aforesaid parts of sub-clause (i) of clause (m) are considered together it becomes evident that the second part of sub-clause (i) covers the case where though originally ten or more workers are employed their number is subsequently reduced to less than ten due to some reasons such as retrenchment or relinquishment of jobs by workers. This would mean that even though on the day on which the inspector of factories visits the premises less than ten workers are employed or working such premises would fall within the definition of the term factory if it Is proved that ten or more workers were working on any day of the preceding twelve months on those premises. This would mean that even though on the day on which the inspector of factories visits the premises less than ten workers are employed or working such premises would fall within the definition of the term factory if it Is proved that ten or more workers were working on any day of the preceding twelve months on those premises. In this connection it is hardly necessary to mention that in view of what is stated above on the point it become evident that even in the second part of sub-clause (i) of clause (m) the words workers were working mean workers were employed. As observed above according to sec. 2 (e) day means a period of twenty four hours beginning at mid-night. Thus when the second part of sub-clause (i) of clause (m) is read in the light of the meaning of the word day it becomes abundantly clear that as soon as it is proved that ten or more workers were working or employed on any day on any premises they would constitute a factory subject of course to the fulfillment of other requirements of sub-clause (i) of clause (m ). This shows that for the purpose of interpreting the second part of sub-clause (i) the circumstance that only less than ten workers were working in each shift on that particular day is of no consequence If according to the second part of sub-clause (i) of clause (m) the total number of workers employed or working on any day of the preceding twelve months is required to be taken into consideration it does not stand to reason that for the purpose of application of the first part of sub-clause (i) only the number of workers actually found working at the time of the visit accidental or otherwise of the factory inspector in a particular shift should be taken Into consideration The verb are in the first part of sub-clause (i) cannot be interpreted to mean that ten or more workers should be actually working to the time of the visit of the factory inspector or any other officer concerned. Thus according to me even for the purpose of application of the first part of sub-clause (1) of clause (m) the total number of workers working throughout the day as defined in sec. Thus according to me even for the purpose of application of the first part of sub-clause (1) of clause (m) the total number of workers working throughout the day as defined in sec. 2 (E) of the Act should be taken into consideration and there is no justification for taking the view that ten or more workers should be working at a particular time or In a shift before the first part of that sub-clause can be attracted. ( 9 ) IT should further be remembered that for the purpose of finding out whether any premises constitute a factory within the meaning of sec. 2 of the Act the entire sub-clause (i) should be taken into consideration. If the prosecution fails to prove that ten or more workers are working as contemplated by the first part of sub-clause (i) it would still be open to it to show that the second part of that clause applies. In clarification of the above view I may point out that if the prosecution fails to prove that ten or more workers are working on a particular day or at a particular time as held by the learned single Judge of the Madras High Court in the case of S. Sanjeevaraya (supra) it would still be open to the prosecution to show that the premises are used as a factory by proving that the or more workers were working on any day of the preceding 12 months as contemplated by the second part of the aforesaid clause. If a contrary view is taken the main object of the Act would be frustrated as would be evident from the fact that ally unscrupulous occupier or manager can evade the provisions of the Act which has been enacted for the benefit of the workers by employing less than ten workers in each shift per day. It is therefore necessary to interpret sec. 2 (m) of the Act in such a manner as would be in keeping with the object of the Act. In this connection I may refer to the following observations of the Supreme Court in the case of Works Manager Central Rly. Workshop Jhansi v. Vishwanath and others A. I. R. 1970 S. C. 488 cited by the learned Assistant Government Pleader:-THE Factories Act was enacted to consolidate and amend the law regulating labour in factories. In this connection I may refer to the following observations of the Supreme Court in the case of Works Manager Central Rly. Workshop Jhansi v. Vishwanath and others A. I. R. 1970 S. C. 488 cited by the learned Assistant Government Pleader:-THE Factories Act was enacted to consolidate and amend the law regulating labour in factories. It is probably true that all legislation in a Welfare State Is enacted with the object of promoting genera welfare; but certain types of enactments are more responsive to some urgent social demands and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms. The enactments with which we are concerned in our view belong to the category and therefore demand an interpretation liberal enough to achieve the legislative purpose without doing violence to the language. IT appears with the respect to the learned Judge of the Madras High Court that he has not considered all not above aspects while interpreting sub-clause (i) of clause Cm) of sec. 2 of the Act and hence for the reasons already mentioned I regret my inability to agree with his interpretation of that sub-clause. ( 10 ) IN the present case as observed above the prosecution has succeeded in proving that more than ten workers were working not only on the day on which the factory inspector inspected the premises on the previous day also. Under these circumstances it should be held that the mill in question was a factory as defined by sub-clause (i) of clause (m) of sec. 2 of the Act. I have also pointed out that in summary case No. 393 of 1973 the accused has committed a breach of rule 45 of the rules whereas in summary case No. 395 of 1973 he has committed a breach of rule 41 (b) of the Rules. Now the breach of each of the above rules is punishable under sec. 92 of the Act. I therefore hold that the accused is guilty of the offence punishable under sec. 92 of the Act in each of above cases. ( 11 ) IN the result the appeals are allowed. The order of acquittal passed by the learned Magistrate in each of the aforesaid two cases is set aside and the accused is convicted in each case of the offence punishable under sec. 92 of the Act in each of above cases. ( 11 ) IN the result the appeals are allowed. The order of acquittal passed by the learned Magistrate in each of the aforesaid two cases is set aside and the accused is convicted in each case of the offence punishable under sec. 92 of the Factories Act 1948 and sentenced to pay a fine of Rs. 250/and in default of payment of fine to suffer S. I. for seven days. The accused should pay up the fine within one month from the date of this order. Appeals allowed. .