State by Public Prosecutor vs Ananthan Potty

K.N. Mudaliyar, J.—This is an appeal filed by the State against the order of the Court of the District Magistrate (J.), Kanyakumari acquitting the accused, Ananthan Potty of the offence u/s 6(1) read with R. 3 and S. 6(1) read with Rr. 7 and 11 of the Madras Factories Act of 1948 and Madras Factories Rules of 1950.

The substance of the accusation against the accused is that he was carrying on manufacturing process without obtaining prior written permission of the Chief Inspector of Factories in his factory and that there was no valid licence for the year 1970 applied for by the accused for renewal at power was used in the premises.

P.W. 1, Rajaram is the Inspector of Factories, Madurai. He was the Inspector of Factories, Tirunelveli at the time of this occurrence having jurisdiction over Kanyakumari District. He inspected Paragon Industries situated in Trivandrum road at Parvathipuram in Nagercoil at 2-25 P.M. on 21st April 1970. The accused was the owner-cum-occupier of the premises. He found that it was a factory in which 18 persons were working and the machineries therein were run by 2.25 H. P. electric motor. In that premises, almirahs, iron chairs and iron materials for buildings and grill works were being done. He found, as per entries, 15 workers were employed on 1st September 1969, 16 workers were employed on 28th July 1969, 12 workers on 5th February 1970 and 11 workers on 7th March 1970.

On 21st April 1970 he found 18 workers working in the premises, but strangely he found in the register entries regarding only 8 workers and there was no entry for 10 workers. P.W. 1 took down the names and addresses of the 18 workers and Ex. P-1 was his inspection report. He also found no permission had been taken after furnishing the plans u/s 6 and Rule 3. From 19th July 1969 electricity was supplied for running the machinery to that factory and for that no licence was applied or obtained. For 1970 also to continue the working in the factory licence had not been renewed which was an offence u/s 6 and Rr. 7 and 11 of the said Act and rules. On 4th May 1970, P.W. 1 sent the report and inspection order, the original of Ex. P-3. He also sent a notice Ex. P-4 to enable the accused to show cause as to why prosecution should not be launched. Ex. P-5 was the postal acknowledgment for the receipt of that notice. The accused gave reply Ex. P-6 stating that for 2 or 3 days he had employed temporary workers and denied the offence. On 18th July 1970 the electric connection to the premises had been cut.

The accused was examined u/s 342 Code of Criminal Procedure He stated that he did not know about the inspection of P.W. 1 on 21st April 1970 and that only 2 or 3 workers were working as labourers and he had a motor and welding set. He kept no records in that premises as there was no office there. For ever two years from 1966 all the machineries were run by electricity. There was no necessity to renew the licence and hence he stated no application was made. According to him on 19th July 1969 electric connection for 6 H.P. was given and that was reduced to 4 H.P. which was disconnected on 18th July 1970. He examined four defence witnesses. D. W. 1 stated that he was a contractor for the accused and as per an agreement Ex. D-1 executed between him and the accused he would take orders for work from the accused under specified rates and he would employ 4 or 5 persons. As an independent contractor he would complete the works. D. W. 1 would only pay the workers employed by him and there was no connection between the payment of wages to his workers and the accused. According to him there would be no work for about 5 or 6 days in a month. In view of the point that arises for determination, it is unnecessary for me to set down the evidence of D. Ws. 2, 3 and 4.

6.The learned Public Prosecutor argued that even on the basis of the testimony of D. W. 1 and particularly the plea set up by the accused in Ex. P-6, all the 18 workers are workers within the meaning of Section 2(1) of the Factories Act. Even deducting 4 or 5 workers as spoken to by D. W. 1 that they were only piece-rate workers the remaining 13 or 14 workers will be workers within the meaning of the Act. His argument, in my view, presumes that the other workers are workers within the meaning of this Act. It is true that the plea of the accused set up in Ex. P-6 does not breathe a whisper about the final defence pleaded by him through the testimony of D. Ws. 1, 2, 3 and 4.

In my view, the burden is on the prosecution to prove that every worker is a worker within the meaning of S. 2(1) of the Act. Mr. Padmanabhan, the learned Counsel for the accused-Respondent argued that the prosecution evidence as given by P. W. 1 does not constitute proof of the relationship of the accused and the workers found in the premises as that of an employer and employee and that the employer-accused has exercised control over the workers found in the premises on 21st April 1970.

There is a catena of cases which the learned Counsel for the Respondent relied on for the contention that the prosecution has failed to prove the essential ingredient, viz., that the accused exercised supervision or control over the nature of quantum of work done by the employee The cases are;

Dharangadhara Chemical Works Ltd. v. State of Saurashtra and Ors.(1), Chintaman Rao v. State of Madhya Pradesh(2) M. Rathenaswami Mudaliar and others In re(3), Manicka Goundar v. The Inspector of Factories(4) Y. P. Gopala Rao v. Public Prosecutor Andhra Pradesh(5), State of Kerala v. R. E. D., Souza(6)

Such an onus of proof has not been discharged by the prosecution even if I were to choose to accept the entire testimony of P. W. 1 wholly and unreservedly. There is this fundamental lacuna in the prosecution evidence as spoken to by P.W.1. On this short ground of the lack of proof of the essential ingredient of the exercise of supervision or control by the accused over the workers in his premises, I am unable to interfere with the order of acquittal of the accused Respondent by the trial Magistrate. There are no merits in this appeal. The criminal appeal is dismissed.