State by Inspector of Factories, Cuddalore vs Kanguli

Padmini Jesudurai, J.—The State has filed this appeal challenging the acquittal of the Respondent by the Chief Judicial Magistrate, South

Arcot at Cuddalore in S.T.R. No. 421 of 1986, tried for offences under Rule 128 (3) Rule 44 and Rule 62A of the Tamil Nadu Factories Rules

1950 read with Section 19(3) and Section 43 of the Factories Act, 1948.

The gravamen of the charges against the Respondent was that, when P.W.1 the Inspector of Factories visited the Respondent''s factory

Diamond Engineering Company at D. No. 5. Imperial Road, Cuddalore on 23.7.1986 at 10:30 a.m. the Respondent was found to be carrying on

manufacturing process in the factory without producing a certificate of stability in respect of the building in the form required under the Rules, was

found not to have provided urinal accommodation for the use of the workers and was found not to have provided for the use of the employed

persons, adequate and suitable facilities for keeping clothings not worn during working hours and for drying of wet clothings. Since no reply was

received from the Respondent for the above cause notice issued to him, the prosecution was launched.

During trial, on behalf of the prosecution the Factories Inspector was examined as P.W.1 and Exs.P. 1 to P. 4 were marked through him. The

Respondent when questioned u/s 281 Code of Criminal Procedure denied the violations and on his behalf it was contended, that out of the 11

workers found by P.W.1 to be working in the Respondent''s premises during inspection, 3 were clerical staff who would not fall within the

definition of ''workers''. Section 2(1) of the Factories Act and as such the above Act would not apply to the Respondent''s factory. Accepting the

legal contention, the learned Magistrate, acquitted the Respondent, which has resulted in the present appeal by the State.

The learned Public Prosecutor relying on the judgments of the Supreme Court in Central Railway Workshop v. Vishwanath (1970 L.L.J. 351)

and Rohtas Industries Ltd. Vs. Shri Ramlakhan Singh and Others, , submitted that the above 3 workers though they were doing clerical work,

were found inside the factory premises and engaged in work, incidental to and connected with the manufacturing process and as such, they would

also be ''workers'' within the definition in Section 2(1) of the Factories Act and that therefore, the acquittal had to be set aside.

Per contra, Thiru Sri Ram, learned Counsel for the Respondent by relying upon a judgment of this Court in Dr. P. S. S. Sundar Rao v.

Inspector of Factories, Vellore urged that the three workers doing clerical work would not fall within the definition of ''worker'' under the Act and

unlike in the cases before the Supreme Court referred to above, there was no evidence regarding the exact nature of the clerical work done by the

3 workers and as such, the learned magistrate was not in error in holding that the 3 persons engaged in clerical work would not be workers under

the Act and the acquittal had to be maintained. The learned Counsel also referred to the fact that the trial court had neither accepted, not rejected

the evidence of P.W.1 and no definite findings had been given by the trial court on the violations alleged.

The question that arises for consideration is whether the prosecution has proved its case against the Respondent.

The proved facts are as follows. The Respondent is the owner of ''Diamond Engineering Company'' located at D. No. 5, Imperial Road,

Cuddalore, which is engaged in manufacturing and repairing of fuel injection pump for motor vehicles. The Manufacturing process was being

carried on with the aid of power using an electrical motor 11.58 H.P. At the time of the inspection by P.W.1, manufacturing and repairing work

was being actually done and 11 persons were working inside the premises. Of them 3 were engaged in clerical work. Besides them, there were

one store keeper, one Assistant store keeper, one Foreman, one Assistant Foreman, two Mechanics, one Assistant Mechanic and one pump

cleaner. It is on these facts that it is contended that the 3 men engaged in clerical work are not workers within the definition as found in Section

2(1) of the Factories Act 1948 and as such Diamond Engineering Company is not a factory under the Act.

The term factory is defined in Section 2(m) the relevant portion of which is as follows:

2(m) ""factory"" means any premises including the precincts thereof-

(1) whereon ten or more workers are working or were working on any date 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...

""Manufacturing process"" is defined in Section 2(k) as hereunder.

2(k) manufacturing process"" means any process for-

(i) making, altering, repairing, ornamenting, finishing packing, oiling, cleaning, breaking up, demolishing, or otherwise treating or adapting any article

or substance with a view to use, sale, trans port, delivery or disposal, or

(ii) pumping oil water or sewage, or

(iii) generating, transforming or transmitting power; or

(iv)......

(v).....

It is not denied that the manufacturing process in Diamond Engineering Companies carried on with the aid of power. The only dispute,

therefore, relates to whether, the 3 persons engaged in clerical work are ''workers'' under the Act.

The term ''worker'' has been defined in Section 2(1) of the Act as follows:

2(1) ""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 three persons engaged in clerical work, cannot be said to be employed in the manufacturing process and the question would really be

whether, the kind of work they are doing could be said to be incidental to or connected with the manufacturing process or the subject of the

manufacturing process.

In Rohtas Industries Ltd. Vs. Shri Ramlakhan Singh and Others, the question before the Supreme Court was whether Time keepers engaged

in the Railway Workshop, Jhansi doing purely clerical duties including preparation of the pay sheets of the workshop staff, maintenance of their

leave account, disposals of settlement cases and maintenance of records for statistical purposes the attendance registers, job-card particulars and

time- sheets of the staff, were workers within the purview of the definition of ''worker'' in Section 2(1) of the Act. 4 of the Timekeepers were

engaged in the task of supervising the work of the other Timekeepers. Tracing the history of the definition of ''worker'' under the Act, the Supreme

Court held that such Timekeepers, are also workers falling within the definition given above and observed as follows:

The Factories Act was enacted to consolidate and amend the law regulating labour in factories. It is probably true that all legislation in a welfare

state is enacted with the object of promoting general welfare: but certain types of enactments are more responsive to some urgent actual demands

and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms. The enactments with which

we are concerned, in our view, belong to this category and therefore demand an interpretation liberal enough to achieve the legislative purpose

without doing violence to the language. The definition of ""worker"" in the Factories Act, therefore, does not seem to us to exclude those employees

who are entrusted solely with clerical duties, if they otherwise fall within the definitions of the word ""worker"".

The above judgment would clearly apply to the facts of the present case and dispel any doubt as to whether the 3 staff engaged in clerical work in

the factory premises could be workers. Some clerical work is indispensable for the actual manufacturing process and is therefore, connected with

the manufacturing process. Those employed in such clerical work are also workers.

In a later judgment in Rohtas Industries Ltd. v. Ramalakhan Singh And Others 1978 (1) L.L.J. 515 the Supreme Court held that a Sectional

Officer in the Waste Paper Department of a Paper Factory, engaged in supervising and checking quality and weighment of waste papers and rags,

which are the basic raw materials for the manufacture of paper, dealing with the receipts and maintaining records of stocks, passing bills of the

suppliers of the waste paper and rags and checking the quality of the supplies, is a ''worker'' u/s 2(1) of the Act, since his work was connected

with the work of the subject of the manufacturing process, namely the raw materials.

Besides the above judgment a learned Judge of this Court in State By Public Prosecutor v. S. Rajagopal 1984 L.W. Crl. 71 has also held that

the term ''worker'' would include persons like Manager, Typist, Physicist, Store-keeper, Accountant and Assistant Manager, if their work is

incidental to or connected with the manufacturing process.

The decision in Dr. P. S. S. Sundar Rao v. Inspector of Factories, Vellore 1984 (2) L.L.J. 237 relied on by the learned Counsel for the

Respondent wherein a learned Judge of this Court held that the workers in a laundry run by a medical college hospital are not workers since the

hospital itself was not a factory, can have no application to the facts of the present case.

P.W.l''s inspection showed 11 persons working in the premises, all of whom come within the definition of ""worker"" under the Act. Hence,

Diamond Engineering Company is a factory under the Factories Act. The Respondent therefore, was bound to implement the Rules framed under

the Act.

On the violation u/s 12B(3) the learned Counsel for the Respondent would contend that no stability certificate was necessary, since the building

had been constructed prior to 1948 when the act itself came into force and the Note appended to Rule 12B(3) dispenses with such certificate for

buildings constructed prior to 1948. This had never been the case of the Respondent during trial. This is a question of fact and without any

materials to substantiate the same, the contention of the learned Counsel for the Respondent cannot be accepted. The violation is therefore proved.

It is true that the discussion of P.W.l''s evidence by the trial court is inconclusive. However, the learned Magistrate has stated that there was no

reason to reject the evidence of P.W.1 who according to him had no motive against the Respondent and who was merely implementing the statute.

P.W.1 has given evidence that urinal accommodation was not available for the workers and there were no facilities for keeping clothings not worn

during working hours and for drying of wet clothings. The vague denial of the Respondent would not be a ground for rejecting the evidence of

P.W.1 violations under Rule 44 read with Section 19(3) of the Act and Rule 62A read with Section 43 of the Act are also proved.

In the result, the acquittal of the Respondent is set aside and he is convicted for the offence under Rule 12B(3) read with Section 92 of the Act

and sentenced to pay a fine of Rs. 10/- in default imprisonment till rising of the court, convicted for an offence under Rule 44 read with Section

19(3) and 92 of the Act and sentenced to pay a fine of Rs. 10/- in default to undergo imprisonment till rising of the court and convicted for an

offence under Rule 62A read with Section 43 and 92 of the Act and sentenced to pay a fine of Rs. 10/- in default imprisonment till rising of the

court. The fine shall be paid within one month of the receipt of the copy of this judgment by the trial court or on production of a steno copy of this

judgment by the Respondent, whichever is earlier. The appeal is allowed.