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PETITIONER: JOHN DOUGLAS KEITH BROWN

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 17/12/1964

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. DAYAL, RAGHUBAR

CITATION:  1965 AIR 1341            1965 SCR  (2) 639

ACT: Factories Act (63 of 1948), ss. 52 and 92-Scope of-Violation by manager-If "occupier" liable.

HEADNOTE: The  appellant was an "occupier", as defined in s. 20(n)  of the  Factories  Act, of certain mills.  The manager  of  the mills  contravened the provisions of s. 52 of the Act  under which,  whenever  workers are required to work on  a  weekly holiday,  specific  permission  of the  Chief  Inspector  of Factories  in  respect  of  each and  every  worker  who  is required  to work on such a day should be  obtained.  though the manager apprised the appellant of what he was  proposing to  do,  the appellant took no steps to  restrain  him  from putting  into operation a new schedule of work which was  in violation  of  s.  52.  The appellant was  charged  with  an offence  under  s.  92  read  with s.  52  of  the  Act  and convicted.   The  conviction was confirmed by  the  Sessions Court  in  appeal  and by the High Court  in  Revision.   In appeal  to the Supreme Court it was contended that under  s. 52(i)  (b) (i), the duty was cast upon the manager  to  give notice  to  the appropriate authority, of a  change  in  the weekly holiday, and the omission of the manager to give such notice would not render the occupier vicariously liable. HELD  :  The  opening  words  of  the  section  indicate   a prohibition from requiring or permitting an adult worker  to work  in  a  factory on the first day  of  the  week.   This prohibition  is general and is not confined to a manager  Me prohibition is lifted if steps are taken under cls. (a)  and (b).   Under  cl. (b) the manager could give and  display  a notice  only for the purpose of securing an  exemption  from the prohibition and therefore it does not impose a  positive duty on the manager to do something.  It follows that, where something  was done in breach of the prohibition enacted  by s.  52(1),  both  the manager and the  "occupier"  would  be liable. [641 E-G] Moreover,  what  the  manager did was  done  with  the  full knowledge  and possibly with the consent of  the  appellant. The "occupier" having actual knowledge that the manager  was doing something which was not within the purview of s. 52(1) cls.   (a)  and  (b),  he  must  be  held  guilty   of   the contravention of the provisions of the sections. [644 E]

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State Government of Madhya Pradesh v. Magan Bhai  Desaibhai, A.I.R. (1954) Nag. 41, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 66  of 1962. Appeal from the judgment and order dated September 11,  1961 of  the High Court of Calcutta in Criminal Revision No.  362 of 1961. J.   N.  Ghosh, Nuthehari Mukherjee and Sukumar  Ghose,  for the appellant. K.   B.  Bagchi,  B.  N.  Kirpal for P.  K.  Bose,  for  the respondent. 640 The Judgment of the Court was delivered by Mudholkar,  J.  The only point urged in this appeal  from  a decision  of  the  High Court at  Calcutta  is  whether  the occupier  of a factory is liable to penalty under s.  92  of the  Factories Act, 1948 (hereafter referred to as the  Act) for the contravention of the provisions of s. 52 of the Act. The appellant is the Managing Director of Jardine  Henderson Ltd.,  Calcutta, who are the managing agents of  the  Howrah Mills Co. Ltd., of Ramkristopur, District Howrah and as such "occupiers"  of the Mills within the definition of the  term contained  in  s. 2(n) of the Act.  One J. P. Bell  was  the Manager of the Mills in June, 1957.  Both the appellant  and Bell  were  charged with an offence under s. 92 of  the  Act read with s. 52.  It would appear, however, that during  the pendency  of the trial the Manager was permitted to  proceed to  England  and  the  prosecution  continued  against   the appellant  alone.   He  was convicted  of  the  offence  and sentenced  to pay a fine of Rs. 400/- by the  Sub-Divisional Magistrate,  Howrah.  His appeal therefrom was dismissed  by the   Sessions  Judge,  Howrah.   Similarly,  the   revision application preferred by him before the High Court was  also dismissed.    However,   the  High  Court  granted   him   a certificate  to the effect that the case was fit for  appeal to this Court and that is how the matter has come up  before us. Reliance  was  placed before us on behalf of  the  appellant upon  the decision in State Government of Madhya Pradesh  v. Maganbhai Desaibhai(1) to which I was a party in support  of the contention that where a duty is cast upon a Manager of a factory  to perform a particular act his omission to  do  so will not render the occupier.  According to learned  counsel the omission of the appellant is that under cl. (b) of  sub- s.  (1) of s. 52 of the Act a duty is cast upon the  manager of the factory to give a notice to the appropriate authority of a change in the weekly holiday from the first day of  the week to any other day and not upon the occupier.   According to learned counsel the omission of the manager to give  such notice  would  not  render the occupier liable  in  any  way unless it is shown that there was any connivance on his part of a breach of duty by the manager.  This, it is  contended, must necessarily imply that unless the occupier had the mens rea  to contravene the provisions of s. 52(1) of the Act  he would  not be liable for the contravention.  In the  absence of any evidence to the effect that the appellant knew of the omission and (1)  A.I.R. 1954 Nag. 41. 641 yet  connived  at  it his  conviction  and  sentence  ought, therefore, to be quashed.

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             Sub-section (1) of S. 52 reads thus:               "No adult worker shall be required or  allowed               to  work in a factory on the first day of  the               week  (hereinafter  referred to  as  the  said               day), unless-               (a)   he  has  or will have a  holiday  for  a               whole day on one of the three days immediately               before or after the said day, and               (b)   the  manager of the factory has,  before               the  said  day or the  substituted  day  under               clause (a) whichever is earlier,-               (i)   delivered a notice at the office of  the               Inspector  of  his intention  to  require  the               worker to work on the .said day and of the day               which is to be substituted, and               (ii) displayed a notice to that effect in  the               factory               Provided  that no substitution shall  be  made               which  will result in any worker  working  for               more  than  ten days consecutively  without  a               holiday for a whole day." The opening words of this sub-section indicate a prohibition from  requiring or permitting an adult worker to work  in  a factory  on the first day of the week.  The prohibition  is, however, lifted if steps are taken under cls. (a) and (b) of that  section.   A perusal of cl. (b)  makes  it  abundantly clear  that what is required to be done thereunder, that  is to say, to give and display a notice is only for the purpose of  securing an exemption from the prohibition contained  in the  opening part of s. 52 of the Act.  Clause  (b)  cannot, therefore,  be likened to some other provisions of  the  Act which  impose  a  positive  duty  upon  the  Manager  to  do something.   The prohibition contained in the opening  words of  this  subsection is general and is not confined  to  the Manager.   It would, therefore, follow that where  something is  done in breach of the prohibition enacted by sub-s.  (1) of  s. 52 both the Manager as well as the occupier  will  be liable to the penalties prescribed in that section. We  may also point out that exemption from  compliance  with the  provisions of s. 52 was refused by the Chief  Inspector of  Factories as would be clear from the second para of  his reply dated April 8, 1957 to the Manager.  It runs thus:               "It  is, however, pointed out that instead  of               employing  workers  of  C  Shift  from  Sunday               evenings, it               642               would be advisable to employ them on  Saturday               evenings.   The  work done  by  these  workers               after  midnight  on Saturdays which  would  be               continued up to the following morning will  be               considered towards the work done on Saturdays.               In  that  case  submission  of  notice   under               section 52 of the Act would not be necessary." That  being the position, we would have had an  occasion  to consider Maganbhai’s case() if it were the appellant’s  case that  the  weekly  holiday  had  been  altered  without  his knowledge or consent.  But that is not so.  Moreover,  there is  ample  material to show that what the  manager  did  was within the full knowledge of the appellant and,  presumably, was also with his consent.  In this connection we may  point out that on January 18, 1957 the Manager of the Mills sent a letter to the Chief Inspector of Factories which runs thus:                     "HOWRAH MILLS COMPANY LTD.                     Howrah, West Bengal,                       18th January, 1957.

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Ref.  No. G.12/4968 The Chief Inspector of Factories, New Secretariat Building, Calcutta. Dear Sir, We  request  you,, Permission to operate  the  batching  ’Lo winding departments in No. 1 Mill, as shown on the  attached sheet with effect from Sunday the 27th January, 1957. An early reply would be appreciated. It will be noted that all shifts will then work 48 hours per week.                                        Yours faithfully,                                         Sd/- J. P. Bell                                   Mill Manager." A  copy of this letter was sent to M/s.   Jardine  Henderson Ltd.,  Calcutta  of which the appellant  is  admittedly  the Managing  Director.   From  the  letter  of  the  same  date addressed to the Manager by the General Secretary of  Howrah Jute  Mills  Karmachari  Sangha it  would  appear  that  the workers  categorically  refused  to work  according  to  the schedule proposed by the Mill (1)  A.I.R. 1954 Nag. 41. 643 Manager.   The Sangh, however, proposed alternative  working hours  for the "C" shift and there it is suggested that  the workers  would  work on Sunday from 8.30 P.m. to  6.00  A.m. This  schedule  was also accepted by the National  Union  of Jute  Workers  to  which some of the workmen  in  the  Mills belong.   This  would appear from the letter  of  its  Joint Secretary, dated January 21, 1957.  On February 5, 1957  the Mill Manager wrote another letter to the Chief Inspector  of Factories  requesting  for approval of the new  Schedule  of working  hours.   It  may  be mentioned  that  oven  in  the original schedule of working hours which is appended to  the letter of January 18, 1957 by the Mill Manager the  starting time  of the first shift was also 8.30 P.M. on  Sunday.   On February 9, 1957 the Chief Inspector of Factories asked  the Mill  Manager  to  forward  the  resolution  of  the   Works Committee of the Factory or other documents to show that the workers  had agreed to work in the factory at 8.30  P.m.  on Sundays.  The Manager’s reply to it was as follows :-                           "Dear sir,                           Re: Treble shift working in  No.,1               Mill               With  reference to your letter No.  818  dated               9th  February  1957  we  forward  herewith  as               desired  by you two original letters with  one               true  copy of each from the General  Secretary               of  Howrah (Jute) Mills Karmachari Sangha  and               Joint  Secretary  of National  Union  of  Jute               Workers requesting the management to adopt the               existing working hours of the "C" shift in No.               1 Mill.               We trust this will be found to be in order and               would   request  you  to  kindly  return   the               original letters after your perusal.                         Yours faithfully,                         J. P. Bell                         Mill Manager" A  copy  of  this  letter was also  sent  to  M/s.   Jardine Henderson  Ltd.  The fact that copies of letters of  January 18,  1957  and  February  18,  1957  were  sent  to  Jardine Henderson  Ltd., would fix the occupier i.e., the  appellant before  us,  with  the knowledge of  what  the  Manager  had proposed  to do.  Therefore, quite apart from the fact  that as the Managing Director of Jardine Henderson

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644 Ltd.  who were themselves the Managing Agents of the  Howrah Mills,  the appellant must be deemed to have known what  was being  done by the Manager of the Mills.  We  have  positive evidence  of the fact that the Manager had apprised  him  of what he was proposing to do.  The appellant took no steps to restrain  the  Manager  from putting  the  new  schedule  in operation  which was in itself in violation of  the  opening words  of  s. 52.  We may further point out  that  what  the provisions  of  s.  52(1) (a) and (b)  permit  is  to  grant exemptions  to specified workmen from the operation  of  the prohibition  enacted in s. 52 from working in  factories  on weekly holidays.  No general permission can be granted under cls. (a) and (b) of sub-s. (1) of s. 52 for altering the day of  the  weekly  holiday so as to  cover  all  the  workmen. Therefore,  -upon the proper construction of the  provisions it  is  clear  that whenever workers are  required  (or  are permitted)  to  work  on  a  weekly  holiday  the   specific permission of the Chief Inspector of Factories in respect of each and every worker who is required to work on such a  day should  be  obtained.  That being the provision of  law  the occupier  must  be  deemed  to have  known  it.  Being  duly apprised  of the fact that the Mill Manager was  seeking  to start  the  ’C’  shift  from 8.30  P.M.  on  Sunday  without specifically mentioning the names of -those workmen who  had to  work in that shift he was doing something which was  not within  the purview of cls. (a) and (b) of sub-s. (1) of  s. 52.   of  this fact the occupier had actual  knowledge  and, therefore,  he must be held guilty of the  contravention  of the provisions of s. 52 of the Act. The appeal is, therefore, dismissed.              Appeal dismissed. 645