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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: KANSARA MANILAL BHIKHALAL

DATE OF JUDGMENT: 07/04/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1893            1964 SCR  (7) 656  CITATOR INFO :  F          1967 SC1226  (19)  E&R        1974 SC 923  (33)

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

HEADNOTE: On  inspection three of the workmen 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 -work was not notified and displayed as required by s. 61(1) of    the   Factories   Act.    The   respondent   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(101), 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 interpretation  of s. 61(10) but expressed no opinion on  s. 117  of the Act and it dismissed the appeal.  On  appeal  by special leave: Held:     (i)  The respondent was not saved from the  opera- tion  of  s. 63 which is peremptory, by reason  of  anything contained in s. 61(10) and the sending of the letter to  the Inspector  of  Factories was  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  be  required  to work"  and  these  words  are descriptive  of  the scheme of employment of labour  in  the

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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 which  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 implies  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. (ii)  The  language of s. 117 of the Act is not  limited  to officers  but  is  made wide  to  include  "any  person".The protection conferred can only 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. 657 (iii)     The occupier and manager, are exempted from liabi- lity  in  certain  cases  mentioned in  s.  101.   Where  an occupier  or  a  manager is charged with an  offence  he  is entitled  to  make a complaint in his own turn  against  any person  who  was the actual offender and on such  proof  the occupier  or the manager is a solved 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 means  rea  must always be established.  The responsibility exists without  a guilty mind. Ranjit  Singh  v. Emperor, A.I.R. (1943)  Oudh  308,  Ranjit Singh v. Emperor, A.I.R. (1943) Oudh 311, Public  Prosecutor v. Mangaldas Thakkar, A.I.R. [1958] Andh.  Pra. 79, In re P. Lakshmaiah  Naidu,  I.L.R. [1958] Andh.   Pra.  925,  Public Prosecutor  v.  Vattem Venkatramayya,  A.I.R.  1963.   Andh. Pra.  106,  Provincial  Government C.P. and  Berar  v.  Seth Chapsi  Dhanji Oswal Bhate and Anr.  I.L.R. [1940] Nag.  257 and Superintendent and Remembrancer of Legal Affairs, Bengal v. H. E. Watson, A.I.R. 1934 Cal. 730, referred to.

JUDGMENT: 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  A.M.  the  Hi Inspector of Factories, Bhavnagar, visited Saurashtra  Metal and  Mechanical  Works,  Wadhwan City, which  is  a  factory within the meaning of s. 2(m)(1) of the Factories Act, 1948. He found even 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  workmen belonged to a group which was expected to begin work from  7 A.M.  He commenced proceedings under s. 63 of the  Factories Act,  1948  against  the  respondent  Mr.  Kansara   Manilal Bhikhalal  as  the occupier/manager of  the  factory,  after issuing notice to him to show cause.  He asked for  enhanced

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penalty  under s. 94 of the Factories Act because  the  said Mr.  Manilal 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  Judicial Magistrate, First Class, Wadhwan City. The  defence  of  the respondent was that  he  was  not  the occupier and manager of the factory.  It may be pointed  out 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 658 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.11)  written on the 20th about  the  change  of timing  though the letter, unfortunately, did not reach  the Inspector  till the 22nd.  It was admitted that this  change in  the  hours  of work was not notified  and  displayed  as required by s. 61(1).  It was urged that s. 61(10) permitted a  change 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.   According to him, Mr. Dangi’s letter  (Ext.  15) showed that the respondent 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 respondent that this being the first change it was not necessary to wait for one week before making another change,  was  not  accepted because it  was  held  that  the factory  manager  must  always  wait  for  one  week  before introducing  a  change.   The  respondent  was,   therefore, convicted  under  s. 63 of the Factories Act in  respect  of three  offences  and under s. 94,  enhanced  punishment  was imposed upon him by ordering him to pay a fine of Rs. 100 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 first  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 Sessions Judge  was also  of  the  opinion  that s. 117  of  the  Factories  Act protected   the  action  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 with the Sessions  Judge  in  his 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  present matter may now be examined.  It is convenient to do so 659 in  the  reverse order.  Section 92 is a  section  providing generally  for  penalties and s. 94  provides  for  enhanced penalty after previous conviction.  These sections prescribe penalties for contravention of any of the provisions of  the

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Act  or  of any rule made or of any order in  writing  given thereunder.  The breach here is stated to be 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  maintained  under  s.  62.    It provides:               "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  in  any factory  otherwise  than  in               accordance with the notice of periods of  work               for  adults displayed in the factory  and  the               entries  made beforehand against 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 divided into 10 sub-sections of which sub-ss. (1), (2) and (10) alone are relevant here.  They are as fol- lows: --               "61.  Notice of periods of work for adults.-               (1)   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 every  day  the  periods               during which adult workers may be required  to               work.               (2)   The periods shown in the notice required               by subsection (1) shall be fixed beforehand in               accordance  with the following  provisions  of               this  section, and shall be such that  workers               working for those periods would not be working               in  contravention of any of the provisions  of               sections 51, 52, 54, 55, 56 and 58.                (10) Any  proposed  change in the  system  of               work  in any factory which will necessitate  a               change  in  the  notice referred  to  in  sub-               section (1) shall 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." 660 Section  62 next provides that a register of  adult  workers shall be maintained in 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 be prescribed.  Section 51 to which second sub- section of s. 61, already hours week; s. 52 refers to weekly fixes  a  maximum -of 9 hours a day interval  for  rest  and prescribes  that exceed 5 hours at one stretch; s. 56  fixes generally that the period of work and rest should be  spread over  10-1/2  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 sub-G. (1)  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

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required by the latter part of the tenth sub-section.   With due  respect  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 words are descriptive of the scheme of the employment of 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 which  goes  with  the notice.   Sub-s. (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 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 implies  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 individual worker. 661 The  learned  counsel  sought  to  justify  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 justification was sought only from the  provisions of  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 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, overtime  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 relating  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 contrary to  the notice displayed under s. 61(1) without  any  justi- fication by reason of any exempting provision.  The  respon- dent  was  not saved from the operation of s. 63,  which  is peremptory,  by reason of anything contained in sub-s.  (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/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.  A:-, 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 under  this               Act.-               No   suit,   prosecution   or   other    legal               proceeding.  shall lie against any person  for               anything  which  is  in  good  faith  done  or

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             intended to be done under this Act." It is argued by Mr. M. V. Goswami on the authority of  cases about  to  be mentioned that this section  gives  protection against prosecution in respect of anything which is done  in good  faith under the Act.  He referred us to two  decisions of 662 Thomas, C. J. in Ranjit Singh v. Emperor(1) and Ranjit Singh v.  Emperor,(2) 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, foremen,  workers  etc.   Mr. Goswami  also  refers  to  two decisions  of  the  Andhra  Pradesh  High  Court  in  Public Prosecutor v. Mangaldas Thakker(3) and In re.  P. Lakshmaiah Naidu(1) in which the same view has been expressed.  Mr.  D. R.  Prem  on behalf of the State of Gujarat  relies  on  The Public Prosecutor v. Vattem Venkatramayya(5) and  Provincial Government, C.P. and Berar v. Seth Chapsi Dhanji Oswal Bhate and  Anr(6).  Reference was also made to Superinte dent  and Remembrancer of Legal Affairs, Bengal v. H. E. Watson(7). 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 not only  to an  officer doing or intending to do something in  pursuance or execution of this Act but also to "any person".  But  the critical  words are "any thing * * * done or intended to  be done"  under the Act.  The protection conferred can only  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.  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 compliance 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 necessary 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 (1) A.I.R.     (1943) Oudh 308. (2)  A.I.R. (1943) Oudh 311. (3)  A.I.R. (1958) Andh.  Pra. 79. (4)  I.L.R. (1958) Andh.  Pra. 925. (5) A.I.R. (1963) Andh.  Pra. 106). (6)  I.L.R. (1940) Nag. 257=A.I.R. (1938) Nag. 408. (7)  A.I.R. (1934) Cal. 730. 663 with  an offence he is entitled to make a complaint  in  his own turn against any person who was the actual offender  and on proof of the commission of the offence by such person the occupier  or the manager is absolved 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.   Such  a  provision  largely  excludes  the operation of s. 117 in respect of persons guilty of a breach

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of  the  provisions of the Act.  It is  not  necessary  that means  rea  must always be established 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. 101 analysed above and  the  occupier and manager can save themselves if they prove that they  are not the real offenders but who, in fact, No such defence was offered here. For these reasons we are of the opinion that the  respondent is  not  saved by s. 117.  We, accordingly, set  aside  his, acquittal and convict him under s. 63 read with s. 94 of the Factories Act.  He is -,sentenced to pay a fine of Rs. 501/- in respect of each of the offences, or in default to undergo 15 days’ simple imprisonment. Appeal allowed.. 664