In re: P.K. Abu Backer

M.N. Moorthy, J.—The petitioner was convicted for offences under S. 6 of the Factories Act, read with R. 4 (1) of the Tamil Nadu Factories Rules, under S. 7 of the Factories Act read with R. 102 of the Tamil Nadu Factories Rules and S. 112 of the Factories Act, read; with R. 103 of the Tamil Nadu Factories Rules sentenced to pay a fine of Rs. 100 on each one of the counts in default to under go simple imprisonment for one month on each count.

The petitioner filed an appeal in C.A. No. 72 of 1979 before the learned Sessions Judge, Madras, against the conviction and sentence, passed by the trial Court. The learned Sessions Judge, dismissed the appeal; confirming the conviction and sentence passed on the petitioner. The present revision is directed against the order of dismissal passed by the Sessions Judge in C.A, No. 72 of 1979,."

The prosecution case is briefly as follows: P.W. 2 was a worker in the establishment of K/s. Tip Top Plastic Industries Private Limited, functioning at No. 19, Stringers Street, Madras-1. According to him 125 workers work in the factory. P.W. 3 is the General Secretary of the Leather Equipments and General Worker''s Union. He sent a petition, Ex. P 7, to the. Inspector of Factories on 5th September, 1977 alleging that 125 employees are employed in this establishment and that this establishment does not maintain proper registers and records and is not giving the benefits due to the workers under the Labour laws On the complaint of P.W. 3. P.W. I, the Assistant Inspector of Factories made a surprise inspection of the premises at No. 19, Stringers Street, Madras, on 18th September, 1977. He found 61 adults being actually engaged at that time in the premises in the manufacture of suit cases. He enquired 28 workers among them and prepared his inspection report, Ex. PI, appending to it a list of those 28 workers whom he interrogated. The petitioner has not obtained any license under the factories Act nor had he sent a notice of occupation in Form No. 2 to the Chief Inspector of Factories at least fifteen days before using the premises as a factory nor had he made readily available for inspection the muster roll for all the workers in the factory in Form No. 25. P.W. 1 issued a show cause notice under the original of Ex. P2 to the petitioner and on receipt of the petitioner''s reply, Ex. P5, P.W. I laid the complaint before Courts.

The petitioner''s case is that the workmen who are working in his premises are working under independent contractors outside his premises and that only thirteen workers were work it together him for which he has maintained an attendance register and salary register. The petitioner examined himself as D.W.I. He also examined on his side D.W 2 to show that the raw materials. were used to be supplied to the contractors, that they used to get the work done outside and return the finished products to this concern.

I perused the records, heard the Learned Counsel for the petitioner and learned Public Prosecutor P.W. I'' s evidence is cogent and convincing. He saw 61 workers engaged in the manufacture of suitcases. He examined 28 parsons orally and made a list of their names which has bean appended to Ex. PI, his inspection report. There is no reason to disbelieve his evidence as he had absolutely no animus against the petitioner. On his evidence alone, the conviction of the petitioner can be sustained even ignoring the other evidence let in by the prosecution.

The petitioner placed reliance on Exs. D10 and D11, the attendance register and salary register to show that 11 to 13 workers, only had been working in this establishment''. These two documents are only self-serving documents. It cannot be believed that the contractors used to take away the raw materials to their places and bring the finished products and no work of manufacturing of suit cases is actually being carried on at No. 19, Stringers Street, Madras, in the light, of the evidence of P.W. 1. Even assuming that the 61 workers whom P.W. 1 found to be working in the premises on 18th October, 1977 were laborers employed by the contractors whom the petitioner had engaged, still the premises of P.W. 1 would come within the meaning of "factory'''' under the Factories Act. S. 2(1) of the Factories Act defines a "Worker" as a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, etc. The. word ''''worker" includes a person employed even through the agency of a contractor with: or without the knowledge of the principal; employer and therefore, the 61 persons whom P.W. 1 found on 18th October, 1977 being engaged in that premises are "workers'''' within the meaning of S. 2(I) of the Act. Inasmuch as there are more than 20 workers, Jtllah premises is a factory under S. 2(m)(ii) of the Act. It was argued by the Learned Counsel that the petitioner cannot be considered to be an "occupier" as he has no ultimate control over the workers who tad been engaged not by him, but by the contractors. But the term "occupier" of a factory has been defined in S. 2(n) of the Act as meaning the pear-son who has ultimate control over the affairs of the factory. By no stretch of image nation can it be said that P.W. 1 had no ultimate control over the affairs of the factory. He is, therefore an "occupier" within the meaning of S. 2(n) of the Act and hence liable to be proceeded against for the offences committed which have been proved by the official witness, P.W. 1.

The Courts below are correct in convicting the petitioner for the offences charged on the evidence of P.W. 1. I see no ground to interfere either with the conviction or the sentence imposed on the petitioner. The criminal revision fails and is dismissed.