STATE OF GUJARAT v. Y. V. Khadilkar — 1994 DIGILAW 76 (GUJ)

K. J. VAIDYA, J. ( 1 ) THESE three appeals for enhancement of the sentence by the State of gujrat are directed against the impugned judgment and order dated 9-3-1990, rendered in three different Criminal cases No. 781/90, 782/90 and 783/92 by Shri C. H. Patel, the learned JMFC, Gandhidham (Kachchh), wherein the respondent - Y. V. Khadilkar, who came to be tried for the alleged offences punishable under Sections 63 and 92 of the factories Act, 1948 on his pleading guilty was convicted for the same and sentenced ID pay a fine of Rs. 75/- in each case, and in default, to undergo SI for three days. ( 2 ) ACCORDING to Shri Y. N. Metha, Factory Inspector, Adipur on 30-11-1989 at 6. 20 p. m. when he visited midco Holdings Private Limited situated at Plot Nos. 16 and 17, kandla Free Trade Zone, Gandhidham, the same was found working and on taking inspection, it was noticed that three adult workers viz. , Triloknath Jayswami, Sanjay Joshi and V. B Jadeja were engaged in the production work. Their presence were marked in the workers Register maintained in Form No. 28. Not only that but the notice in Form No. 14 displayed in the factory clearly show the working hours for the workers, which were between 8. 00 am to 12. 30 noon, thereafter from 12. 30 to 1. 00 pm there was a recess and after the recess, from 1. 00 pm to 4. 30 pm. According to the Complainant, all the aforesaid three workers were found working in the factory beyond the stipulated working hours displayed in the Notice. Not only that but at 6. 20 pm when he visited the factory, no working hours were displayed for working of the said three workers. In this view of the matter, according to the Complainant, the respondent - Manager has committed an offence punishable under Section 63 read with Section 92 of the Act On the basis of these facts on 28-2-1990, three different complaints were filed before the learned JMFC, gandhidham [kachchh] for the aforesaid alleged offences, whereupon the summons were issued to the respondent making it returnable on 27-3-1990. It appears that on 9-3-1990, when the accused appeared before the learned Magistrate, the accusations were read over and explained to him and on his admitting the guilt, the learned Magistrate convicted and sentenced the respondent, as stated in detail in above para-1 of this judgment, giving rise to the present three appeals. ( 3 ) NOW having regard to the gravity and seriousness of the offences, there is indeed no doubt whatsoever that the learned Magistrate has taken not only extremely charitable and unduly lenient view of the matter while imposing meagre sentence of fine of Rs. 75/- but in the process has also demonstrated the total lack of concern for the exploitation of poor and pitiable working class of the Society. Such an attitude of the learned Magistrate is quite frustrating to the persons for whose benefit the Factories Act came to be enacted and the Legislature which enacted the same. The fine of Rs. 75/- only for the alleged offences is exfacie ridiculous and mockery to the Labour Legislation and the justice. Not only that but the same is quite tempting and an indirect invitation enough to anti-Labour profiteers to take calculated business risk of exploiting the workers and thereby profiting out of the same, and in case accidentally if caught, than to conveniently dupe the Court with the false plea of guilt and walk out of the Court merrily with chick in the tongue with light sentence of fine. Such a trivial punishment in such serious cases by rich businessman can hardly be said to be a punishment worth the name. The Concise Oxford dictionary meaning of the word punish is (i) cause (an offender) to suffer for an offence, (ii) inflict a penalty for (an offence), (iii) inflict severe blows on (an opponent), etc, etc. Similarly, the dictionary meaning of the word "suffer" is (i) to undergo pain, grief, damage, (ii) to undergo, experience or be subjected to (pain, loss, grief, defeat, change, etc ). Thus, on the face of it, the fine of Rs. 75/- inflicted can neither be said to be a punishment nor experience which can cause suffering. In fact, the amount Rs. Thus, on the face of it, the fine of Rs. 75/- inflicted can neither be said to be a punishment nor experience which can cause suffering. In fact, the amount Rs. 75/- would not cover even the stationery expenses towards trial proceedings incurred by the Court as well as the Office of the complainant Such a small amount of fine as well exposes any court to the obvious criticism of issuing a judicial licence to the owners/ occupiers / Managers to commit offences under the Factories Act quite free handedly and with impunity. Just like any business rick, taking chances, the Factory owners would be quite attempted to exploit the workers if the Court takes such a lenient view of the matter and inflict fine of Rs. 75/- only or so, which is no more punishment Under Section 92 of the Act, for the alleged offence u/s. 63, the respondent was liable to be punished with imprisonment for a term which may extend to two years or with fine, which may. extend to 1 lac or both, etc. etc. Now nodoubt, this is not a case wherein for the first offence, the respondent could be sentenced to imprisonment for some term ! This is also not a case wherein the accused could have been heavily fined upto Rs. 1 Lac ! But at the sametime, this is also not a case, wherein the learned Magistrate could be permitted to be charitable to the exploiting owners/ occupiers / Managers at the cost of the poor, helpless workers and the Legislative intent by inflicting just a flea-bite sentence of fine of Rs. 75/- only, if at all it can be said to be any punishment as discussed above. Merely because the respondent pleaded guilty, that by itself should not weaken the rigour of the Law as anybody who finds himself inextricably clutched-up, in tight comer and difficult to wriggle out of the same was bound to pretend, shed crocodile tears and come out with such false, scheming plea viz. , the plea of guilty with a view to earn sympathy of the Court The Court should always be on guard and examine such scheming false pleass with commonsense and judicial pragmatism as the misplaced sympathy of the Court can never be permitted to frustrate the effective implementation of the Labour Laws. , the plea of guilty with a view to earn sympathy of the Court The Court should always be on guard and examine such scheming false pleass with commonsense and judicial pragmatism as the misplaced sympathy of the Court can never be permitted to frustrate the effective implementation of the Labour Laws. The learned magistrate accordingly should be smartest enough not to be dupped by and to match the ever smarter scheming accused in order to see that he does not wander away from the path of justice by not inflicting just and proper sentence. ( 4 ) TURNING to the facts of the present case, when the Legislature has made it mandatory for the occupier or the Manager to show the hours of work by displaying the same on the Notice Board, it has indeed definately some meaning. To state the said meaning - from no worker more work should be taken beyond the stipulated period of working hours as displayed on the Notice Board. How best to save the worker from being exploited was indeed the anxiety of the Legislature and bearing in mind that only, the working hours were stipulted and directed to be displayed on the Notice Board. In the present case, the very fact that though the working hours were over at 4-30 p. m. , and at 6. 20 p. m. on seeing the Register, where the presence of three workers are marked, and if still they are found working beyond the said stipulated period, it obviously means that some extra work was being extorted from the workers. In these hard days of extreme economic crisis where to get employment is too difficult and the real struggle for existence and further still in a state under the upper-stone of the greed of the employer and the lower-stone of extreme poverty and fear complex for tomorrows bread, the workers are made to work for more hours than for the hours stipulated and paid for. It is under such helpless situation of sheer frustration and compulsion of hungry stomach and the family responsibility which reduces the poor worker to a bounded labour and slave allowing themselves to be explointed by heartless occupiers / Managers of the Factory. This way and this is how they are exploited. It is under such helpless situation of sheer frustration and compulsion of hungry stomach and the family responsibility which reduces the poor worker to a bounded labour and slave allowing themselves to be explointed by heartless occupiers / Managers of the Factory. This way and this is how they are exploited. To check and control this sort of exploitation, the Legislature has thought it wise to direct the occupiers/managers to display working hours on the Notice Board. In this view of the matter, to make the worker work beyond the stipulated working hours is nothing but his sheer exploitation and to countenance such exploitation lightly by inflicting the fine of Rs. 75/- is not only a mockery of the poor helpless worker but a total disregard of the Legislture and that too by none-else authority than the Law Enforcing Agency viz. , the Court of justice ! This can never be permitted. To take such a lenient view of the matter is nothing less than unbecomingness on the part of the learned Magistrate. It is the duty of the learned Magistrate to uphold the Legislative honour and to see that the goal aimed at is reached by due enforcement. It is indeed a matter of great regret that the learned Magistrate in the instant case has failed to discharge his duty to the Legislature on the one hand and to the poor workers for whom the factories Act came to be enacted on the other. Thus, taking into consideration the gravity and seriousness of the offence, as discussed above the sentence of fine of Rs 75/- being not only unduly lenient and manifestly unjust but the same very much deserve to be suitably enhanced. Mr. K. V. Shelat, the learned APP submitted that this son of offencs are conveniently going on in one factory or the other and are hardly detected, therefore, when some such offences are detected, some exemplary sentence should be imposed so as to have deterrent effect upon the occupier and/or Manager taking work from the workers beyond the stipulated period. He under the circumstances suggested that a fine of Rs. 2,000/- in each case would meet the ends of justice. It is true that when the Legislature has provided for the Maximum Sentence of Rs. He under the circumstances suggested that a fine of Rs. 2,000/- in each case would meet the ends of justice. It is true that when the Legislature has provided for the Maximum Sentence of Rs. 1 lac, some explamplary sentence can be imposed but at the sametime, taking into consideration the fact that this court for the first time, the ends of justice would be duly met, if the respondent is ordered to pay fine of Rs. 1,500/- instead of Rs. 75/ -. It may be made clear that fine of Rs. 1,500/- is not a final one and in a given case in future, if such sort of exploitation is brought to the notice of the court in any manner, the Court can and may take still stricter view of the matter by imposing even a substantive sentence of imprisonmant as well as fine amount higher than the one imposed in this case. In the Labour Legislation, pleading of guilt has no consequence and the Court must know by way of common sense and judicial pragmatism that such pleas are advanced only to defeat the justice by getting away with the lighter sentence. ( 5 ) IN the result, these three appeals are allowed. The fine is enhanced from that of Rs. 75/- to Rs. 1,500/- in each case. The amount of fine to be deposited in trial Court on or before 30- 6-1994, in default to undergo SI for two months. .