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PETITIONER: STATE OF KERALA & ANR.

       Vs.

RESPONDENT: R. E. D’SOUZHA

DATE OF JUDGMENT12/02/1971

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) REDDY, P. JAGANMOHAN DUA, I.D.

CITATION:  1971 AIR  832            1970 SCR  (3) 711

ACT: Factories  Act, 1948, s. 2(1) -"Worker"-Who  is-Constitution of  India Article 134(1) (c)-Principles already  settled  by Supreme  Court-Questions  concerning  application   thereof- Whether raise issues fit for appeal to Supreme Court.

HEADNOTE: After catches of prawns made from time to time were  brought to  the respondent’s premises, a casual and irregular  group of women and girls of the locality came at their convenience to do the peeling, washing, etc. at piece-rates.  There were no.specified  hours of work and after finishing their  work, the workers would go on to do similar work at other premises in the locality.  The respondent’s conviction under s. 92 of the FactoriesAct for, inter alia, using his premises as  a factory without obtainingregistration,  etc.  was   set aside in revision by the High Court on the viewthat   the workers in question were not "workers" within the meaning of the Factories Act.  On appeal to this Court, HELD:The  High  Court  had  rightly  decided  that  the workers in the present case were not "workers" covered by s. 2(1) of the Factories Act. [714 C] Dharangadhara  Chemical Works Ltd. v. State  of  Saurashtra, A.I.R. [1957] S.C. 264, Chintaman Rao & Another v. The State of Madhya Pradesh, [1958] S.C.R. 1340; State of Kerala v. V. M.  Patel,  [1960] K. L. J. 1524 and Birdhichand  Sharma  v. First Civil Judge, Nagpur, [1961] 3 S.C.R. 161; applied. Obiter : After  this  Court had laid down a test to  be  applied  for determining  who  were "workers" within the meaning  of  the Factories  Act,  the  High Court  should  have  treated  the question of principle as no longer open.  The High Court had certified the case to be fit for appeal as it felt that  the question involved is of general importance in the State.  If the  question of principle has been settled by  this  Court, the  application  of  the  principle  to  the  facts  of   a particular case does not make the question a fit one for the Supreme Court within Article 134(1) (c) of the Constitution. [714 D]

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JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.  205 and 206 of 1968. Appeal from the judgment and order dated February 21 1968 of the  Kerala High Court in Criminal Revision  Petitions  Nos. 415 and 416 of 1967. D.P. Singh and M. R. K. Pillai, for the appellants (in  both the appeals). 712 G.B.  Pai,  P.  N. Tiwari, O. C. Mathur  and  Bhajar  Ram Rakhiani, for the respondent (in both the appeals). The Judgment of the Court was delivered by Sikri, C.J. These appeals are on certificates granted by the High Court of Kerala.  The only question in these appeals is whether  the workmen doing work in the premises of the  res- pondent  are workers within the meaning of Sec. 2(1) of  the Factories Act, 1948. Section 2(1) of the Factories Act, 1948 reads as follows               "Worker’ means a person employed, directly  or               through any agency, whether for wages or  not,               in  any manufacturing process, or in  cleaning               any part of the machinery or premises used for               a manufacturing process, or in any other  kind               of work incidental to, or connected with,  the               manufacturing  process, or the subject of  the               manufacturing process;" The respondent was convicted under Sec. 92 of the  Factories Act for using a building as a factory without obtaining  the previous  permission  in writing of the Chief  Inspector  of Factories,  for failing to apply for registration and  grant of  licence  for the factory and for failing to  maintain  a muster  roll of the workers employed in the factory  in  one case,  and  for failing to give attendance  cards  to  every person  employed  in  the factory in the,  other  case.  The respondent  was sentenced to pay a fine of Rs. 20/  in  each case.  He was also directed under Sec.102 of  the  Factories Act to rectify the defects within a specified period. The  respondent filed a Revision Petition in  the  High Court.  The  High Court held that the work  that  was  being carried  out in the premises of the respondent  amounted  to manufacturing  Process.  This question has not been  debated before  us.   The High Court further held that  the  workmen working in the premises of the respondent were not ’workers’ within  the meaning of Sec. 2 (1) of the Factories Act.   It is  this part of the decision that has been’  challenged  in appeal by the State of Kerala. The  nature of the work done was described in a letter  pro- duced by the prosecution.  This letter is not printed on the record but the High Court summaries the document as follows               "This document shows that as and when  catches               of prawns are made, a consignment of prawns is               brought to the premises in a lorry at any time               of  the day or the night, that the  women  and               girls  of  the locality, who form  a  "casual,               heterogeneous, miscellaneous and irre-               gular group" come at their convenience and  do               the peeling, washing etc., at piece-rates; and               that there are no specified hours of work, nor               is  there any control by the  Petitioner  over               the  irregularity  and attendance  or  of  the               nature, manner or quantum of their work.   The               same  workers after finishing the work in  the               premises  of  the  petitioner,  go  to   other               similar  premises in the locality where  other               lorry  loads  of prawns are taken.   In  other

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             words,   if  more  prawns  are  caught  at   a               particular   time,   they  are   brought   and               distributed among several premises are brought               and  distributed among several  premises  like               the Petitioner’s and the local women and girls               collect  at  the several premises and  do  the               work at piece rates.  The same workers do  not               go   to   the  same  premises   on   different               occasions,  and  the owners  of  the  several.               premises  do  not have any  control  over  the               manner  or  quantum of work  these  women  and               girls do’ The rates of remuneration  naturally               depend upon the quantity of prawns  available,               the number of women and girls that come to  do               the  work-, the hour of the day or  the  night               when the catches arrive, etc.  Sometimes,  for               days no work is done in the premises." The  High  Court after referring to the  decisions  of  this Court  in  Dharangadhara Chemical Works Ltd.   V.  State  of Saurashtra(1), a decision under the Industrial Disputes Act, Chintaman  Rao & Another V. The State of  Madhya  Pradesh(1) and.  State of Kerala v. V. M. Patel(1). decisions under the Factories Act, held               "It will be apparent that the women and  girls               who  assemble and do the work when a catch  of               prawns  is  brought  to the  premises  of  the               petitioner are not ’workers’ coming within the               definition   of   the  Factories   Act.    The               Petitioner  does not insist a,% to who  should               do  the job or how it should be done; he  only               wants  the  work  to be done  for  the  agreed               remuneration without spoiling the prawns  i.e.               within a short time. (A quantity of prawns  is               taken for peeling, cleaning, washing etc. by a               particular    individual    for    a     fixed               remuneration,  and that individual,  with  the               assistance   of  others  whom   she   employs,               finishes the job as quickly as possible.." The learned Counsel for the appellant contended that it  was erroneous on the part of the High Court to have applied the- (1) A.I.R. 1957 S.C. 264            (2) [1958] S.C.R. 1340 (3)  [1960] K.L.J. 1524 714 decision of this Court in Dharangadhara Chemical Works  Ltd. Vs.   State  of Saurashtra(1), a case under  the  Industrial Disputes Act, to the definition of ’worker’ in the Factories Act.   He  fairly pointed out that  another  Division  Bench applied  the  same  test  in a  dispute  arising  under  the Factories  Act. (see Birdhkhand Sharma v. First Civil  Judge Nagpur)  (2)  . But, nevertheless, he urged that  we  should refer  the case to a larger Bench.  We see nothing wrong  in the decision of this Court in Chintaman Rao & Another v. The State of Madhya Pradesh(3).  On the contrary, we are of  the opinion that the case has been rightly decided.  The  scheme of the Factories Act clearly shows that the test adopted  by this  Court is the correct one.  It would be  impossible  to apply many provisions of the Factories Act to the  ’workers’ of  the type we are concerned with here if we were  to  hold that they were workers’   within  the  definition   of   the Factories Act.  We are really surprised that the High  Court certified  this  case to be a fit case for  appeal  to  this Court.  After this Court had laid down a test to be  applied for determining who were ’workers’ within the meaning of the Factories  Act,  the  High Court  should  have  treated  the question of principle as no longer open.  The High Court had

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certified the case to be fit for appeal as it felt that  the question involved is of general importance in the State.  If the  question of principle has been settled by  this  Court, the  application  of  the  principle  to  the  facts  of   a particular case does not make the question a fit one for the Supreme Court within Article 134(1)(c) of the  Constitution. In the result the appeals fail and are dismissed. R K. P. S.                                Appeals dismissed. (1) A.I.R. 1957 S.C. 264  (2) [1961]3 S.C.R. 161 (3) [1958] S.C.R. 1340.                             715