TaxTMI 
TaxTMI 
1957 (12) TMI 37
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....n running a factory as defined in the Factories Act and the petitioner's position is that of the, occupier of the factory. 2. On 10-11-1953 P. W. 1 who is the Inspector of Factories, Northern Division, Alwaye, inspected the premises and on conducting the necessary inquiries, he was satisfied that the petitioner was running the factory without complying with the requirements of the Factories Act and has thus committed certain offences made punishable under Section 92 of the Factories Act. Section 112 of the Act empowered the State government to make "rules providing for any matter which, under any of the provisions of the Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of this Act". In exercise of this power, a set of rules were made and published by the State Government in the gazette dated 15-7-1952. These rules include rules contemplated by Clauses (a) and (d) of Section 6(1) of the Factories Act. This section deals with the approval, licensing and registration of factories and Clause (a) states that the State government may make rules requiring the previous permission in writing of the State Government or of ....
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.... the Factories Act. Accordingly, the petitioner was convicted under Clauses (a) and (d) of Sub-section (1) of Section 6 and under Section 7, read with Section 92 of the Factories Act, and was sentenced to pay a fine of Rs. 51 and in default to undergo simple imprisonment for a period of 2 weeks. Against such conviction and sentence the petitioner preferred Criminal Appeal No. 32 of 1956 before the Sessions Court at Anjikaimal. The learned Sessions Judge confirmed the conviction but reduced the fine to Rs. 5. The accused-petitioner has come up in revision challenging the legality of the conviction entered against him by the lower court. 4. If the evidence on record is sufficient to make out that the petitioner is running a factory as defined in the Factories Act, the conviction entered against him by the lower courts has only to be confirmed in view of his admission that he has not complied with the requirements of Sections 6 and 7 of the Act. The question therefore is whether it is established by such evidence that the petitioner is running a factory as defined in the Factories Act. The definition is contained in Clause (m) of Section 2 and it is as follows: " "Factory" means ....
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....s of the Gujarat Travancore Agency cannot come under parts 2 to 5 of the definition. But on the question whether that process would come within the first part of the definition, there is little scope for doubt. What is meant by the process of garbling has been explained by P. W. 3. According to him the process consists of washing, drying and winnowing with a view to cleaning it by removing all dust and dirt. After this process of garbling, the garbled pepper is packed in gunny bags and is thus made ready for sale. When P. W. 1 inspected the premises of the Gujrat Travancore agency on 10-11-1953, he found 9 persons engaged in washing and drying pepper and 14 others engaged in winnowing dried pepper. P. W. 3 has also stated that such a process was going on when P. W. 1 visited the premises. It is conceded by the accused-petitioner also that the pepper stocked by his firm is sold only after it is garbled. This is made clear in Ext. D the letter sent by him to P. W. 1 by way of reply to the notice Ext. I issued by P. W. 1. The process of washing and cleaning pepper in the course of garbling and the subsequent packing of the same with a view to its sale, transport, delivery or disposal....
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....n Clause (1) of Section 2 as indicating the comprehensive nature of the definition. A person who receives wages as remuneration for his services, a person who receives remuneration on a piece-work basis, a person who may be working merely as an apprentice, and a person who is an honorary worker --all come within the definition of the word "worker" in Clause (1) of Section 2. Such being the comprehensive nature of the definition, it will not be correct to say that a relationship of master and servant must necessarily exist between the employer and the employee so as to bring the employee within the definition of the word "worker." Petitioner's learned Counsel was prepared to concede this position. But he maintained that it does not affect his contention that the definition cannot take in persons other than those employed by the owner or manager of the business or concern in which they are working. We think that this contention is well founded and has to prevail. It is obvious from the definition that the word "employed" is used with reference to the person employed and also to the person by whom the employment was made. The word has been used as a transitive verb. The differe....
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.... in a manufacturing process carried on without the aid of power. In Clause (n) the word "occupier" as used with reference to the factory, is defined as follows : "Occupier" of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory." These definitions as also the other relevant provisions in the Factories Act where the word "employed" has been used, have to be kept in view while attempting to understand the true meaning and significance of the same word "employed" used in the definition of the word "worker." It is a safe rule of construction to presume that the same technical expression occurring in different parts of the same statute must have been used by the legislature in the same sense, unless it is otherwise indicated by the particular context in emphasising this rule, Du Parcq. L. J., observed as follows in Butcher v. Poole Corporation 1942 2 All ER 572 (C) at p. 579 : "It is, of course, impossible to construe particular words in an Act of Parliament without reference to their context and to the whole tenor of the Act."....
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....cate the persons engaged by him for work under him. That word occurring in the definition of "worker" in Section 2 Clause (1) has also to be understood in the same sense, particularly when there is nothing in the definition to indicate that the word as used therein cannot sustain such a construction. The literal meaning of the word as also the qualifying expressions contained in the definition are all quite in harmony with the above construction. We are, therefore, clearly of the view that one of the essential conditions to be satisfied to bring a person within the definition of "worker" in Section 2 Clause (1) of the Factories Act, is that he must be a person employed directly or through any agency, whether for wages or not, by the person having the ultimate control of the affairs of the concern in which such person is engaged. 6. The above conclusion gets considerable support from the special provision contained in Section 85 of the Factories Act. That section empowers the State Government to publish a notification in the official gazette declaring that all or any of the provisions of the Act shall apply to any place where manufacturing process is carried on with or without the....
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....g the ultimate control over the business concern, they will not be workers as defined in the Act. That is the reason why the second part of Sub-section (1) of Section 85 was enacted empowering the State Government to issue a notification declaring that the provisions of the Factories Act would apply to any particular place wherein manufacturing process is carried on and the persons engaged therein are not persons employed by the owner of the concern, but are only persons working with the permission of or under agreement with such owner. It is obvious therefore that in respect of such a place the provisions of the Factories Act can have no application unless and until the notification comtemplated by Section 85 is issued. 7. The evidence in this case has to be examined in the light of the principles already explained. The plea of the accused-petitioner is that he has not employed any person in any manufacturing process carried on at the premises of the Gujrat Travancore Agency. Even though the work of garbling of pepper carried on at such premises amounts to a "manufacturing process," his contention is that the persons engaged in that process were not persons employed by him. The....
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....ned in the Factories Act. The presumption under Section 103 of the Act could not also come to the aid of the prosecution in this case. That Section states that 'if a person is found in a factory at any time except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall, until the contrary is proved, be deemed for the purpose of this Act and the rules made thereunder, to have been at that time employed in the factory". In order that the presumption under this section may be drawn, it must first be shown that the premises in question is a "factory" as defined in the Act. It is only then that a person found at such premises at the time specified can be presumed to be a person employed in the factory. But there can be no presumption in respect of any premises that it is a factory. All the dements required by the definition of the word "factory" must be clearly proved and established in respect of the premises in question before it can be deemed to be a "factory". There is no such proof in this case. 8. The utmost that can be said in favour of the prosecution evidence is that the 23 persons employed by P. W. 3 for garbling pepper were wor....