STATE OF GUJARAT versus KANSARA MANILAL BHIKHALAL

-

-- - - - ----~-----~-~

656

SUPREl\IE COURT REPORTS

[1964]

1964

.April 7 •

';

''

STATE OF GUJARAT ..

.

, v . . KANSARA MANILAL BHIKHALAL [M. HIDAYATULLAH AND N. RA.JAGOPALA AYYANGAR, JI.]

\ . \

~.

'

;;

· Factories Act, 1948 (Act 63 of 1948, ss. 61, 63, 101 and 117- System of. work-Hours changed-Failure to notify-Applicabi. lity of s. '61(10)-Protective clause-Scope Responsibility of offence-Mens Rea, if necessary to establish.

On. insp.;ction ·three of the worlanen were found working in a factory before their shift commenced. · It was stated that the Inspector· of Factories was informed by a letter written . a day ·prior. to this inspection . about. the change of the timing though the letter did not reach the Inspector till the day after the inspection. This. change in the hours Of v.;ork -\vas not notified and displayed as required by s. 61(1) of the· Factories Act. The Tespondent as the occupied/manager of the factory Was ·convicted. under s. 63 ·of the Act. On appeal, the Sessions .Judge acquitted the respondent holding that the second :Part of s. 61(10) of. the Act applied to a case of second or subsequent · change in the. system of. work in a factory and this being the first change there was no need to wait for a week or to obtain the previous sanction of the ·Inspector· as required by the later part of s. ·61(10), and further s. 117 of the Act protected the action. because it was bonafide. The State appealed to the High Court which agreed.with the Sessions Judge in his inter· pretation of s. 61(10) but expressed no opinion on s. 117 of the · Act and it dis!Ilissed .the .appeal. On appeal by spec!al leave: Held:· (i) The respondent, was not saved from the operac ti on of s. 63 which is peremptory,· by reason of· anything. con tained in S. 61,(10) and the sending of the letter to the Inspector of Factories v.1aS -therefore misconceived. The :words "change in· the system of work in any factory which. will necessitate a change in the notice" in s. 61(10) refer not. to departure from the notice but to a -change in the system,, a change which would require the notice to be recast;. The notice shows "the period during· which adult workers· may t e required to work" and these words are descriptive 0f the scheme of employment <>f labour in the· factory but are not apt to contemplate the time of employment for each individual worker. That can only be. found by referring_ to the register whilch goes with the notice.-. Sub-section (1) makes no mention of the change in· the' register but of the change in· the notice and thereby indicates• that the change which is . contemplated· is an over. all change affective to a whole group and not an individual worker •. The latter .. part of the sub-section also points in, the same direction· because it lnip!ies that such changes should not be frequent and if the change is for the second time it should .. not be made until one week has elapsed since the last change. (iti) The language of s. 117 of the Act is not limited to offi cers but is made wide to include "any person". The protection conferred can onlv be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions. It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it.

7 S.C.R.

SUPRE)IE COURT REPOHTS

657

(iii) The occupier and. mana~er,' are exempted from lia?i

1964

lity in certain cases ment1oned in s. 101. ~her~ an occupier State of Guja.ral. <>r a manager is charged with an ?ffence he is entitled to make a complaint in his own turn against any person who \vas the J[ansara Manila! actual offender and on such proof the occupier or th_e rnana~er is atsolved from liability. This shows that compliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility. It is not necessary that rnens rea must always be established. The exists without a guilty mind.

responsibility

Bhil.:!1alal

v.

Ranjit Singh v. Emperor, Al.R. (1943) Oudh 308, Ranjit Singh v. Emperor, A.LR. (1943) Oudh 311, Public Prosecutor v. [1958] Andh. Pra. 79, In re P. Mangaldas Thakkar, A'.I.R. Lakshmaiah Naidu. I.L.R. [1958] Andh. Pra. 925, Public Prose cutor v. Vattem Venkatramayya, A.I.R. 1963. Andh. Pra. 106, Provfncial Government C.l\ and Berar v. Seth Chapsi Dhan.ii Oswal Bhate and Anr. IL.R. [1940] Nag. 257 and Superinten· dent and Remembrancer of Legal Affairs, Bengal v. H. E. Watsrii?. A.T.R. 1934 Cal. 730, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 5 of 1963. Appeal by special leave from the judgment and order dated June 21, 1962 of the Gujarat High Court in Criminal Appeal No. 383 of 1961.

D. R. Prem and B. R. G. K. Achar, for the appellant. M. V. Goswami, for the respondent. April 7, 1962. The Judgment of the Court was delivered

by

HIDAYATULLAH, J.-On June 21, 1960 at 5-50 AM. the Inspector of Factories, Bhavnagar, visited Saurashtra Metal and Mechanical Works, Wadhwan City, which is a factory within the meaning of s. 2(m)(i) of the Factories Act, 1948. He found seven workmen working on a machine and on examining the notice of period of work for adult workers and the register of workers he found that three of the work men belonged to a group which was expected to begin work from 7 AM. He commenced proceedings under s .. 63 of the Factories Act. 1948 against the respondent Mr. Kansara Manila! Bhikhalal as the occupier I manager of the factory, after i>lming notice to him to show cause. He asked for en· hanced penalty under s. 94 of the Factories Act because the said Mr. Manila! Bhikhalal was convicted on a previous occasion in three cases. As three workmen were concerned three separate complaints were filed in the Court of the Judi cial Magistrate, First Class, Wadhwan City.

The defence of the respondent was that he was not the It may be pointed out occupier and manager of the factory. that one Mr. Dangi and the respondent are partners. They have another factory at Dharangadhra and the defence was that Mr. Bhikhalal was manager at the Dharangadhra factory

Hidayalullah, J.

1961

Slate of <Jujarr1t v. ](an.sara Jfanilal Bltil:lwTnl

Hida!Jalullali, .f.

658

SUPREME COURT REPORTS

[1964}

and Mr. Dangi was manager at Wadhwan. Another defence was that a machine had gone out of order the previous day and after it was repaired work was started a little earlier the next day, because production had suffered and goods were required. The Inspector, it was stated, was informed by a letter (Ext. I]) written on the 2,0th about the change of timing though the letter, unfortunately, did not reach the It was admitted that this change in ln:;pector till the 22nd. the hours of work was not notified and displayed as required It was urged thats. 61(10) permitted a change bys. 61(1). to be made in the system of work in a factory and as this provision was fully complied with, there was no offence. The Judicial Magistrate did not accept these defences. Accord ing to him, Mr. Dangi's letter (Ext. 15) showed that the res pondent was the occupier and the manager of the factory at Wadhwan. On the second defence the Magistrate was of the opinion that the hours of work could not be changed without the permission of the Inspector of Factories under sub-s. (10) of s. 61. The contention on behalf of the respon dent that this being the first change it was not neces.5ary to wait for one week before making another change, was not accepted because it was held that the factcry manager must always wait for one week before introducing a change. The respondent was, therefore, convicted under s. 63 of the Fac tories Act in respect of three offences and under s. 94, en hanced punishment wa:> imposed upon him by ordering him to pay a fine of Rs. JOO in respect of each offence.

On appeal the Sessions Judge of Surendranagar ordered the acquittal of the respondent. The learned Sessions Judge held that the second part of s. 61(10) applied to a case of second or subsequent change and this being the fimt change it did not fall within the second part. According to the Sessions Judge. it fell in the first part of the sub-section and the change could not be said to have been effected in breach of that part since the Inspector of Factories was informed about the change. The learned Ses:<;ions Judge was also of the opinion that s. 117 of the Factories Act protected the ac tion because it was bonafide. The conviction and sentence were accordingly set aside. The State of Gujarat appealed against the acquittal but was unsuccessful. A Division .Bench of the High Court which heard the appeal agreed w•!h the Sessions Judge in hi:; interpretation of s. 61 (10) and did not express any opinion on s. 117 of the Act. In this appeal filed by special leave of this ·Court these two points have again arisen for our consideration.

The scheme of the Factories Act bearing upon the pre· sent matter may now be examined. It is convenient to do so

,_

'I S.C.R.

SUPREME COURT REPORTS

659

in the reverse orde!-. Section 92 is a section providing gene rally for penalties and 6. 94 provides for enhanced penalty ;ifter previous conviction. These sections prescribe penalties for contravention of any of the provisions of tlie Act or of any rule made or of any order in writing given thereunder. The breach here is stated to bt: of s. 63 of the Act which lays down that the hours of work must correspond with notice required to be displayed under s. 61 and the register directed to be 1!1aintained under s. 62. It provides:

1961

Stat< of Gujaral . v. J[ansara Manila.l

BhikhaJ.al

Ilidayafullak, J.

"S. 63. Hours of work to correspond with notice under

section 61 and register under section 62 .. -

No adult worker shall be required or allowed to work jn any f~1ctory' other\visc than in accordance with the notice of period;; of work for adults displayed in the faclorv and the entries made beforehand ~.gainst his name in the register of adult workers of the factory."

Section 61 deals with the notice of periods of work for adults. · It is di,·ided into 10 sub-sections of which sub-ss. m. (2) and ()()1 alone are relevant here. They are as fol lows:-

"6 l. Notice of periods. of work for adult5.-

(l) There shall be displayed and correctly maintained in every factory in accordance with the provisions of sub-section (2) of section 108, a notice of periods of work for adults showing clearly for ~very day the periods during which adult wor kers may be required to work.

(21 The periods shown in the notice required by sub section <I) :;hall be fixed beforehand in accord ance with the following provisions of this section, and shall be such that workers working for those periods would not be workin!! in contravention of any of the provisions of s~ctions Si, 52, 54, 55, 56 and 58 .

•

*

*·

•

•

(JO) Any proposed change m the system of work in any factory which will necessitate a chan~e in the notice referred to in sub-section (!) shail be notified to the Inspector in duplicate before the change is made, and except with the previous sanction of the Inspector, no such change shall be made until one week has elapsed since the last change."

1964

-.

State of Gujarat Yo Kanaara .Manilal

Bhil:halal

660

SUPREME COURT REPORTS

[1964}

Section 62 next provides that a register of adult workers. shall be maintained irr which will be shown (a) name of each adult workers in the factory; (b) the nature of his work; (c) the group, if any! in which he is included; (d) where his group works on shifts, the relay to which he is allotted and (e) such other particulars as may be prescribed. Section 51 to which reference is made in the second sub-section of s. 61, already quoted, prescribes a 48 hours week; s. 52 refers to weekly holidays; s. 54 generally fixes a maximum of 9 hours a day for work; s. 55 fixes the interval for rest and prescribes that working hours shall not exceed 5 hours at one stretch; s. 56 fixes generally that the period or work and rest should be spread over IOt hours and s. 58 prohibits the overlapping of shifts.

The Sessions Judge and the High Court concurred in holding that the provisions of sub-s. (10) were complied with and there was thus no offence under s. 63. They treated this as a change in the system of work in the factory necessitating: a change in the notice referred to in sulHi. (I) and held that as the change was notified to the Inspector before it was made there was nothing illegal in employing the three workers before their shift commenced. They also held that as this: was the first change there was no need to wait for a week or to obtain the previous sanction of the Inspector as requir ed by the latter part of the tenth sub-section. With due res• pect to the High Court, we do not agree that this sort of case is contemplated by the tenth -sub-section. That sub-section speaks of "change in the system of work in any factory which will necessitate a change in the notice" and these words refer not to a departure from the notice but to a change in the system, a change which would require the notice to be recast. The notice shows "the periods during which adult workers may be required to work" and these word'S are des criptive- of the scheme of the employment of labour in the factory but are not apt to contemplate the time of employ ment for each individual worker. That can only be found by referring to the register which goes with the notice. Sub-s. (l) makes no mention of the change in the register _but of the change in the notice and thereby indicates that the change which is contemplated is an overall change affecting a whole group and not an individual worker. The latter part of the sub-section also points in the same direction because it im plies that such changes should not be frequent and if the change is for the second time it should not be made until one week has elapsed since the last change. This cannot possibly refer to a casual change in the hours of work of an indivi dual worker.

7 S.C.R.

SUPREME COURT REPORTS

661

·

f

h

"fi

· ·

h n]

The learned counsel ro\Jght to justify

1964 state of Guiarot v. f Kamara Manilal Bhiklialal

the action by referring to s. 59 which provides that extra wages for over- time shall be paid. No such claim was made earlier in this case and justJ cation was soug t o y rom t e prov1s1ons o sub-s. (10) of s. 61 and s. 117 of the Act. Section 59 cannot be considered in isolation: It has to be read with s. 64, where Hidaya1,t11a1., J. the State Government has been given the power to make · 'exempting rules'. Under those rules a departure from the provisions of ss. 51, 52, 55 and 56 can be made but only in accordance with the rules so framed; as for example, over- time work may be taken from workers engaged on urgent repairs in spite of the provisions of ss. 51, 54, 55 and 56, but must be in accordance with rule 91 and the urgency which is referred to in this section and the rule is 'an urgency relat- ing to the factory and not an urgency felt by the constituents of the factory'. A departure from the hours of work as laid down in .s. 61(2) can only be made in those cases in which the exempting provisions of the rules cover the case and not otherwise.

It would, therefore, appear that the offence which was committed in the case was the employment of workers con trary to the notice displayed under s. 61 (I) without any justi fication by reason of any exempting provisic·n. The respon dent was not saved from the operation of s. 63, which is peremptory, by reason of anything contained in sub<>. (10) and the sending of the letter to the Inspector of Factories was therefore mis-conceived.

It was contended before us that the respondent was not the occupier I manager of the factory and, in any event, s. 117 of the Act protected him because he was not present there and his action was bonafide. As to the first part of this argument it is sufficient to say that the Magistrate found that he was the occupier and manager. The letter of Mr. Dangi (Ext. 15) quite clearly establishes this. The argument under s. 117 of the Act requires a more detailed consideration. That section reads as follows:-

" 17. Protection to persons acting µnder this Act.

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act."

lt is argued by Mr. M. V. Goswami on the authority of cases abo_ut to be m~ntio~ed that this section gives protection agamst prosecution m respect of anything which is done in good faith under the Act. He referred us to two decisions of

Jf)1;.J

State of fluja.rut v. K11n-s(trr1 J[unilal Bl!ild1nlal

Hiduya(ullal1, .].

662

SUPREME COURT REPORTS

[1964]

Thomas, C. J. in Ranjit Singh v. Emperor(') and Ranjit Singh v. Emperor,(') in which the learned Chief Justice observes that the language of s. 117 is not limited to the inspecting staff but is wide enough to include occupiers, managers, fore men, workers etc. Mr. Goswami also refers to two decisions of the Andhra Pradesh High Court in Public Prosecutor v. Mangaldas · Thakker(i and In re. P. Lakshmaialz Naidu(') in which the same view has been expressed. Mr. D. R. Prem on behalf of the State of Gujarat relies on The Public Prose cutor v. V11tte111 Venkatramayya(") and Provincial Gm·em ment, C.P. and Berar v. Seth Chapsi Dhanji Oswal Bhate and A11r('). Reference was also made to Superintendent and Remembrancer of Legal Affairs, Bengal v. H. E. Watson(').

It is not necessary to refer

to the lines of reasoning adopted in these cases. The language of this protecting clause is not limited to officers but is made wide to include "any person". It thus gives protection hot only to an officer do ing or intending to do something in pursuance or execution of this Act but also to "any person". But the critical words * * • done or intended to be done" arc "any thing 1111der the Act. The protection conferred can only be claimed by a person who can pl·ead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions. It cannot confer immunity in respect of action~ which are not done under the Act but are done contrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act. It is not sufficient to say that the act was honest. That would bring it only within the words "good faith". It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done. There must be a compliance or an intended compli ance with a provision of the Act, before the protection can be claimed. The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise.

In this connection it is necesary to point out. as was done in the Nagpur case above referred to, that the occupier and manager are exempted from liability in certain cases men tioned in s. 101. Where an occupier or a manager is charged

('I A.LR. (1943) Oudh 308. ('I A.I.R. (1943) Oudh 311. ( l A.LR. (1958) Andh. Pra. 79. ( 'J I.L.R. (1958) Andh. Pra. 925. ('I A.LR. (1963) Andh. Pra. 106). (') I.L.R. (1940) Nag. 257=A.I.R. (1938) Nag. 408. (') A.I.R. (1934) Cal. 730.

7 S.C.R.

SUPRE1\1E COURT REPORTS

663

.

.

.

l

b

WG4

rom

l . d f

)" b"l" ia 1 1ty.

Tl . Knn.~"r" 1J11?11!11l

,.. . m,;1.-1,,,,,, 1

with an offence he is entitled to make a complaint in his own turn against any person who was the actual offender and on S1·11< ·1· !:11jan1t proof of the commi~~ion of the offence by such person the occupier or t 1e manager 1s a so ve 11s shows that compliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility. Such a provision largely excludes the operation of s. 117 in respect of persons guilty of a breach of the provisions of the Act. It is not necessary that mens rea must always be estab- lished as has been said in some of the cases above referred to. The responsibility exists without a guilty mind. An adequate safeguard, however, exists in s. IOI analysed above and the occupier and manager can save themselves if they prove that they are not the real offenders but who, in fact. is. No such defence was offered here.

Il>"•10?1"'1111"i.. J.

For these reasonr, we are of the opinion that the res-"

pondent is not saved by s. 117. We, accordingly, set aside his acquiital and convict him under s. 63 read with s. 94 of the Factories Act. He is sentenced to pay a fine of Rs. 50 !- in respect of each of the offences, or in default to undergo 15 days' simple imprisonment.

Appeal allowed.