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TMI Blog2003 (2) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... ced the amount of fine from ₹ 5,000 to ₹ 4,000, that being the upper limit under the penal provision. The substantive sentence awarded was also maintained. 4. The factual details of the prosecution case in brief can be stated as follows: Complainant K.P. Jose was working as Inspector in E.S.I. Corporation, Nagpur. At the material time, he was posted at Nanded as Inspector of E.S.I. Corporation. In such capacity, it was his duty to inspect the factories for coverage under E.S.I. Act as also complaints under the said Act. After a notice by ordinary post, complainant claims to have visited the premises of accused "Ajanta Hotel." It is his claim that he again visited the premises on December 15, 1994 as also on December 22, 1994 after giving notices. On every occasion, he demanded record for inspection, which was not made available. On the first occasion, petitioner/accused and his son were present on the remaining two occasions, only son was present. Since the directions to produce the record for inspection were not complied with, complainant claims that accused has indulged into contravention of Section 45(2)(a), which is punishable by residuary clause cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are employed or were employed for wages 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 (b) whereon twenty or more persons are employed or were employed for wages 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 (35 of 1952) or a Railway running shed." It is evident that an establishment will be a "factory" if there are 10 or more persons employed in manufacturing process with the aid of power on any day of preceding 12 months. In case, the manufacturing process is carried out without the aid of power, the number of employees required would be 20 or more, on any day of the preceding 12 months. 8. On reference to deposition of complainant, he has admitted that he saw only two or three persons working in the hotel. Presuming it for the sake of argument that these workers were not the family members of the petitioner and they were engaged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, would be applicable only for the purpose of provisions of that Act and not for the purpose of E.S.I. Act. The definition of "factory" as contained in Section 2(12) of the E.S.I. Act does not readily borrow the definition of "factory" from the Factories Act, 1948, with clause such as "the term factory wherever it occurs in this Act (E.S.I. Act) shall have the same meaning assigned to it in the Factories Act." Therefore, any establishment, which may be labelled as "factory" under the Factories Act, 1948, need not necessarily be labelled as a "factory" for the purposes of E.S.I. Act. The learned Sessions Judge was at gross error in borrowing the provisions of the Factories Act, 1948, and more so in relying upon the powers of the State Government under Section 85 of the said Act, without there being on record of the trial Court a notification declaring certain establishments to be factories, although number of persons employed is less than 10 or 20 engaged in the manufacturing process with the aid or without the aid of power. The establishment (Ajanta Hotel) is, therefore, not proved to be a "factory" within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant, he has only said "I went to hotel of accused". Beyond this, he has not produced any other evidence showing capacity of accused, either as owner or occupier or Manager or a person having supervisory control over the hotel. Therefore, so far as the issue of petitioner being a principal employer, there is no satisfactory evidence on record. 10. A brief reference to Section 1(4) of the E.S.I. Act may be useful, which says that the Act shall apply to all "factories" other than seasonal factories. The term "factories" must be read as the establishment, which can be termed as "factory" as defined under this very Act and not under the Factories Act. Since "Ajanta Hotel" is not proved to be a "factory" as defined by Section 2(12) of the E.S.I. Act and there is no satisfactory evidence regarding petitioner being "principal employer", the applicability of the provisions of E.S.I. Act itself is negatived and, therefore, both the lower Courts could not have recorded a finding of guilt. 11. The revision petition is, therefore, allowed. Conviction and sentence, as confirmed after modification by the Sessions Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision. 15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding "warrant to jailor, in the case of a prisoner at first released on bail pending the f disposal of appeal to the Appellate Court, but subsequently rearrested in Court on the dismissal of the appeal or reduction or alteration of sentence, and forwarded to jail to undergo the remaining portion of the sentence". The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellant cannot be directed to surrender to the trial Court for issuance of conviction warrant. 16.These are not the issues relating to decision of present revision petition on merits. Since the operative part of the order of learned Sessions Judge require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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