State vs Murugesan Nadar

Padmini Jesudurai, J.—The State has filed this appeal challenging the acquittal of the respondent tried by the Chief Judicial Magistrate, Kanyakumari District at Nagercoil in S.T.C. No. 119/86 for offences under S.6(1) read with R.3(1), S.6(1) read with R.4 and S.7(1) read with R.12 read with S.92 of the Factories Act, 1948, and the Rules framed there under.

Facts briefly are as follows: P.W.1 the Factory Inspector, inspected the Rice Mill of the respondent in D. No. 33/8-90-91, Vaithianatha puram, Kottar, Ettamozhi Road, Nagercoil, the inspection was on 14.11.1985 at 1.30 p.m. At the time of the inspection 12 workers were working in the Rice Mill doing boiling, drying, hulling, winnowing and other rice mill operations. Two electric motors one 20 HP. strength and the other 3 HP. were working. He noticed that no approved plan from the authorities had been obtained, that the Rice Mill had not been registered under the Factories Act and no report 15 days prior to the commencement of the work had been sent. He, therefore, examined the 12 workers, getting their father''s name, age and other details of their employment and salary particulars from them. He prepared Ex.P1 report and after giving the necessary show cause notice and observing the other formalities, he laid complaint against the respondent for the offences mentioned above.

During trial, on behalf of the prosecution, P.W.1, was examined and Ex.P1 to 5 were marked. The respondent when questioned, denied having committed any crime and stated that the Rice Mill was started in 1959 by his father and after him, he is looking after it, that he is living with his family in the Rice Mill premises and whenever labour was needed, he would employ 1 or 2 persons and he would have hulling work only once or twice in a month. He examined himself as D.W.1 and examined D.Ws.2 to 6, being some of the persons found by P.W.1 working in the rice mill at the time of his inspection. The learned Magistrate for the reasons given in the Judgment, acquitted the respondent, against which the present appeal has been filed.

The learned Public Prosecutor would contend that there was no basis for disbelieving the evidence of P.W.1 who stated that at the time of inspection of the Rice Mill, work was in full swing, the two motors running and all the 12 persons mentioned in his Ex.P.1 were engaged in the various operations mentioned in Ex.P.1 itself and that the appreciation of P.W.1''s evidence was totally perverse, resulting in miscarriage of justice making it impossible for the authorities to implement the social legislation.

Per contra, Thiru. Karpagavinayagam, learned counsel for the respondent would urge that the respondent had no continuous work in the Rice Mill and had never employed more than 2 or 3 persons at a time and the evidence of D.Ws 1 to 6 were entitled to great weight. Reliance was placed upon a decision of the Supreme Court in The State of Kerala and Another Vs. R.E. D''souzha, to contend that when the work is intermittent and not continuous, the employer having no control over the workers, who would go to any place in search of that day''s employment, the workers would not come within the definition of the Factories Act.

The question that arises for consideration is whether the acquittal of the respondent by the trial court can be sustained.

The term factory has been defined in S.2 of the Factories Act 1958, the relevant portion of which is as follows:

"Factory" means any premises including the precincts thereof.

(i) wherein ten or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on.

It will have to be seen whether the Soundra Rice Mill of the respondent is a factory. While according to P.W.1 at the time of his visit 12 persons mentioned in Ex.P1 were actually working in the Rice Mill. According to the respondent, on no occasion 12 persons were employed and the hulling business was carried on only on a small scale necessitating employment of a maximum of 5 persons at a time. The learned Magistrate has disbelieved P.W.1 and has accepted the evidence of the respondent as D.W.1 and also the evidence of D.Ws.2 to 6. The learned Magistrate has not given any reasons for rejecting the evidence of P.W.1. The only criticism levelled against his evidence is that P.W.1 had not recorded any statements as such from the 12 persons and no document has been produced by P.W.1 to show that the 12 persons were employed on a permanent basis in the Rice Mill and the prosecution had not examined the 12 persons. These can never be valid reasons for rejecting the evidence of P.W.1 on this aspect. P.W.1 is a law enforcing officer, discharging his official duties and he has stated that at the time of the inspection, both the motors were working and boiling drying, hulling and winnowing were being carried on simultaneously. The names of the 12 persons together with their employment in the Rice Mill are mentioned in Ex.P1 itself. These particulars could not be ascertained unless all the 12 were physically present at the time of the inspection. The signatures or thumb impressions of the 12 persons have been obtained. Nothing has been suggested to P.W.1 as to why he fabricated record to file this false case against the respondent, it is not necessary that separate statements should be recorded from each workman. It is impractical for the learned Magistrate to insist on the examination of the 12 workers as prosecution witnesses, since they would not come forward to give evidence against their own interests. Nor can the learned Magistrate require documentary proof to show that the 12 workers are employed on any permanent basis. Neither the definition of "Factory" extracted above nor the definition of a "worker" mentioned in S.2(1) require it. The learned Magistrate, therefore, ought to have believed P.W.1 on this aspect.

According D.W.2, he is a driver in the Rice Mill and D.W.3 is employed as a watchman and no one else is employed on a permanent basis. According to him, at the time of P.W.1''s inspection, besides himself and P.W.3 and one Suyambu mentioned in Ex.P1, no one else was present in the Rice Mill. D.W.3 claims to be a watchman and he does not speak about anybody having been present at the time of the inspection. D.W.4 would say that he went to the Rice Mill in search of work, D.W.5 to buy husk and D.W.6 to buy bran. Though these witnesses admit their presence, they have nothing to say about the presence, of the others in the list of 12 persons who were physically present when P.W.1 inspected the premises. Their signatures inspected the premises. Their signatures in Ex.P1 are not denied. P.W.1 has stated that in the southern corner of the Rice Mill premises, there were separate toilets for men and women. This would show that there is employment on a regular basis, of men as well as women. The evidence of P.W.1 has been rejected for flimsy reasons in preference to the interested testimony of D.Ws.1 to 6. The evidence makes it clear that the 12 persons mentioned in Ex.P1, were employed in the respondent''s Rice Mill for the various purposes mentioned in Ex.P1 and were actually working at the time of P.W.1''s inspection.

The learned counsel for the respondent by relying upon a decision in The State of Kerala and Another Vs. R.E. D''souzha, , contended that intermittent, sporadic and temporary employment would not make the employees, ''workers'' under the Act. No doubt, it is so. However, in the instant case, it is clear from the evidence of P.W.1 that the 12 persons mentioned in Ex.P1 are engaged for different purposes in the Rice Mill premises were the work of the Rice Mill is continuous and not intermittent. It is not denied that power is used in a part of the manufacturing process. The respondent''s Rice Mill is, therefore, a "factory" within the definition of the Act. It is not the case of the respondent that there were no violations as stated by P.W.1. It has, therefore, to be taken that the respondent has committed the offences for which he was tried. He is found guilty of the offences under S.6(1) of the Act read with R.3(1) of S.6(1) read with R.4 and S.7(1) read with R. 12 from which S.92 is the penal provision. The respondent is accordingly convicted for the above offences.

The respondent has to be questioned about the sentence.

This appeal having been set down this day for further orders in the presence of the said advocates, the court delivered the following judgment:

The respondent is present in Court today and when questioned about the sentence, he prays that a lenient view may be taken. In view of the fact that the occurrence had taken place in the year 1986 and that even now he continues to do his^ business in the same rice mill, it is not necessary to impose any sentence of fine on him. Interest or justice will be met by releasing the respondent under S.3 of the Probation of Offenders Act, 1958. The offences are punishable with imprisonment for not more than 2 years and no previous conviction has been placed before me. Considering all these facts, the petitioner is released under S.3 of the Probation of Offenders Act, 1958 on due admonition.