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TMI Blog1957 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner has been running a factory as defined in the Factories Act and the petitioner's position is that of the, occupier of the factory. 2. On 10-11-1953 P. W. 1 who is the Inspector of Factories, Northern Division, Alwaye, inspected the premises and on conducting the necessary inquiries, he was satisfied that the petitioner was running the factory without complying with the requirements of the Factories Act and has thus committed certain offences made punishable under Section 92 of the Factories Act. Section 112 of the Act empowered the State government to make "rules providing for any matter which, under any of the provisions of the Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of this Act". In exercise of this power, a set of rules were made and published by the State Government in the gazette dated 15-7-1952. These rules include rules contemplated by Clauses (a) and (d) of Section 6(1) of the Factories Act. This section deals with the approval, licensing and registration of factories and Clause (a) states that the State government may make rules requiring the previous permission in writing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishable under Section 92 of the Factories Act. Accordingly, the petitioner was convicted under Clauses (a) and (d) of Sub-section (1) of Section 6 and under Section 7, read with Section 92 of the Factories Act, and was sentenced to pay a fine of ₹ 51 and in default to undergo simple imprisonment for a period of 2 weeks. Against such conviction and sentence the petitioner preferred Criminal Appeal No. 32 of 1956 before the Sessions Court at Anjikaimal. The learned Sessions Judge confirmed the conviction but reduced the fine to ₹ 5. The accused-petitioner has come up in revision challenging the legality of the conviction entered against him by the lower court. 4. If the evidence on record is sufficient to make out that the petitioner is running a factory as defined in the Factories Act, the conviction entered against him by the lower courts has only to be confirmed in view of his admission that he has not complied with the requirements of Sections 6 and 7 of the Act. The question therefore is whether it is established by such evidence that the petitioner is running a factory as defined in the Factories Act. The definition is contained in Clause (m) of Section 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in the course of commerce and industry. The process of garbling of pepper carried on at the premises of the Gujarat Travancore Agency cannot come under parts 2 to 5 of the definition. But on the question whether that process would come within the first part of the definition, there is little scope for doubt. What is meant by the process of garbling has been explained by P. W. 3. According to him the process consists of washing, drying and winnowing with a view to cleaning it by removing all dust and dirt. After this process of garbling, the garbled pepper is packed in gunny bags and is thus made ready for sale. When P. W. 1 inspected the premises of the Gujrat Travancore agency on 10-11-1953, he found 9 persons engaged in washing and drying pepper and 14 others engaged in winnowing dried pepper. P. W. 3 has also stated that such a process was going on when P. W. 1 visited the premises. It is conceded by the accused-petitioner also that the pepper stocked by his firm is sold only after it is garbled. This is made clear in Ext. D the letter sent by him to P. W. 1 by way of reply to the notice Ext. I issued by P. W. 1. The process of washing and cleaning pepper in the course of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . V. Sarma, AIR 1953 Mad 269 (B). In both these decisions particular emphasis was laid on the expression a person employed whether for wages or not" as occurring in Clause (1) of Section 2 as indicating the comprehensive nature of the definition. A person who receives wages as remuneration for his services, a person who receives remuneration on a piece-work basis, a person who may be working merely as an apprentice, and a person who is an honorary worker --all come within the definition of the word "worker" in Clause (1) of Section 2. Such being the comprehensive nature of the definition, it will not be correct to say that a relationship of master and servant must necessarily exist between the employer and the employee so as to bring the employee within the definition of the word "worker." Petitioner's learned Counsel was prepared to concede this position. But he maintained that it does not affect his contention that the definition cannot take in persons other than those employed by the owner or manager of the business or concern in which they are working. We think that this contention is well founded and has to prevail. It is obvious from the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r" in Section 2 Clause (1). Clause (m) contains the definition of the word' "factory" and, as already pointed out, it means any premises including the precincts thereof whereon 10 or more workers are working in a manufacturing process carried on with the aid of power or whereon 20 or more persons are working in a manufacturing process carried on without the aid of power. In Clause (n) the word "occupier" as used with reference to the factory, is defined as follows : "Occupier" of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory." These definitions as also the other relevant provisions in the Factories Act where the word "employed" has been used, have to be kept in view while attempting to understand the true meaning and significance of the same word "employed" used in the definition of the word "worker." It is a safe rule of construction to presume that the same technical expression occurring in different parts of the same statute must have been use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made thereunder, is made punishable under Section 92 of the Act which states that for such contravention the occupier and manager of the factory shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ₹ 500, or with both. It is with reference to the person having the ultimate control of the affairs of the business concern that the word 'employed' has been used in the aforesaid sections to indicate the persons engaged by him for work under him. That word occurring in the definition of "worker" in Section 2 Clause (1) has also to be understood in the same sense, particularly when there is nothing in the definition to indicate that the word as used therein cannot sustain such a construction. The literal meaning of the word as also the qualifying expressions contained in the definition are all quite in harmony with the above construction. We are, therefore, clearly of the view that one of the essential conditions to be satisfied to bring a person within the definition of "worker" in Section 2 Clause (1) of the Factories Act, is that he must be a person employed directly or through any agenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the place. If they could come within the definition of "workers" the place where they are engaged in a manufacturing process would be a factory and the owner of the place will be the occupier as defined in the Act, and even without the issue of the notification contemplated by Section 85, the provisions of the Factories Act, would have applied to such a place. But the legislature appears to have been clearly of the view that unless the persons engaged in a manufacturing process are persons employed by the person having the ultimate control over the business concern, they will not be workers as defined in the Act. That is the reason why the second part of Sub-section (1) of Section 85 was enacted empowering the State Government to issue a notification declaring that the provisions of the Factories Act would apply to any particular place wherein manufacturing process is carried on and the persons engaged therein are not persons employed by the owner of the concern, but are only persons working with the permission of or under agreement with such owner. It is obvious therefore that in respect of such a place the provisions of the Factories Act can have no application unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation to supply labour to the petitioner's firm, that his only contract was to see that pepper was garbled at the fixed rate of ₹ 6/- per candy and that he had himself to engage the required number of labourers for the execution of his contract, it is impossible to hold that the 23 persons mentioned in the mahazar Ext. A and the list Ext. B were persons employed by the petitioner. It follows, therefore, that these 23 persons were not "workers" under the Gujrat Travancore Agency and that the firm could not be deemed to be a "factory" as defined in the Factories Act. The presumption under Section 103 of the Act could not also come to the aid of the prosecution in this case. That Section states that 'if a person is found in a factory at any time except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall, until the contrary is proved, be deemed for the purpose of this Act and the rules made thereunder, to have been at that time employed in the factory". In order that the presumption under this section may be drawn, it must first be shown that the premises in question is a "factory" as def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work in a factory on the first day of the week except under the circumstances specified in the section. While examining the question whether the company manager had contravened the provisions of Section 52, the court observed as follows : "It is clear that only such persons can be classified as workers of the factory who are either directly or indirectly or through some agency, employed for doing the work of any manufacturing process or cleaning etc., with which the factory is concerned. It does not contemplate the case of a person who comes, and that too without the knowledge of the factory owner or without his intervention, either directly or indirectly and does some work on the premises of the factory." It was also pointed out that the Allahabad Law Journal Company could not possibly control the leave of the persons who were employed by the contractor Abdul Rahim to do a particular job for the company. In dealing with the scope of Section 52 it was observed as follows : "The scope of Section 52, Factories Act, makes it clear to us that only such workers alone are contemplated by the section over whom the particular employer had control, not only in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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