State Of Orissa v. D. Bahinipati (Accused) .

Das, J.:— This is an appeal by the State of Orissa against an order dated 20-6-1963 passed by a Magistrate, First Class, Cuttack acquitting the respondent of an offence under Section 92 of the Factories Act.

2. The respondent D. Bahinipati is admittedly the manager of the Factory known as Orient Weaving Mills (Private) Ltd., situated within the limits of Cuttack Town. P.W 2, the Inspector of Factories, Orissa, submitted a prosecution report under Section 92 of the Factories Act against the respondent alleging that he arranged the spread-over of the period of work in the factory to 12 hours as against the permissible maximum of ten and half hours, and thus contravened the provisions of Section 50 of the Factories Act, 1948 (hereinafter described as ‘the Act’). On the said report cognizance was duly taken and the respondent was summoned to stand a trial. The respondent admitted the spread-over of 12 hours, from 1-11-61, but his case was that it was at the request and in the interest of the workers that he did it in good faith, and pleaded to have acted after duly informing the Inspector of Factories. In support of his plea he examined some defence witnesses and placed some documents before the Court.

3. The learned trial court held that there was no mala fide on the part of the accused and he acted in good faith. He thus acquitted the accused. It is against this order of acquittal the present appeal has been filed by the State.

4. The main question in this appeal is whether the respondent has contravened the provisions of S. 50 of the Act and whether he is entitled to protection on the ground that he acted in good faith.

5. On his own statement, the accused admitted the spread over to 12 hours from 1-11-61. Before we proceed to examine the legal question involved in this matter, it is necessary to state some facts which are relevant for the purpose of this appeal. DW 3 Krushna Chandra Sahu is the President of the Orient Weaving Mills Mazdoor Sangh. He made a representation (Ext. C) to the Manager saying that the existing arrangement of working for 8 hours had caused much inconvenience to the labourers as they do not get sufficient time for taking their tiffin at a place convenient to them and he requested the manager to so arrange the shifts that the labourers at no time will be called upon to work continuously for more than four hours. This letter (Ext. C) was given by D.W 3 to the Manager on 5-10-61. On the basis of this report, it seems the manager wanted to change the spread over to 12 hours and submitted a notice (Ext. 1) in Form 11 under R. 80 of Orissa Factories Rules, 1950, to the Inspector of Factories on 28-10-1961. A similar notice (Ext. 2) was also submitted by him on 10-10-1961 to the Conciliation Officer in Form F as required under R. 36 of the Industrial Disputes Act, 1947. In both these notices the period of spread over was admittedly shown to be 12 hours. In the present case, the same official holds the post of Chief Inspector of Factories under the Act and also the post of the Labour Commissioner (Conciliation Officer) under the Industrial Disputes Act. That these notices Exts. 1 and 2 were also duly received in the respective offices is not disputed. It is, however, the case of the prosecution that the manager has violated the provisions of S. 56 of the Act. Section 56 runs as follows:

“Spread Over: The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under S. 55, they shall net spread over more than ten and half hours in any day:

Provided that the Chief Inspector may, for reasons to be specified in writing increase the spread over to twelve hours.”

6. Thus, under the proviso the Chief Inspector is empowered to increase the spread over to twelve hours and in doing so, has to specify his reasons in writing. Admittedly, in this case there is no contravention of S. 55(1) of the Act which provides that no worker shall work more than five hours before he has an interval for rest for at least half an hour. It is also not disputed that previously the period of spread over did not exceed ten and half hours as required under S. 56 of the Act. Section 61 of the Act provides for notice of period of work for adults and under sub-s. (1) of that section a notice showing the period of work for adults for every day shall be displayed in the factory premises. Sub-section (10) of that section provides as follows:

“(10) Any proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub-s. (1) shall be notified to the Inspector in duplicate before the change is made and except with the previous sanction of the Inspector no such change shall be made until one week has elapsed since the last change.”

7. Sub-section (8) of that section provides that the State Government may prescribe forms of the notice required by sub-s. (1) and the manner in which it shall be maintained. Rule 80 of the Orissa Factory Rules has prescribed form No. 11 according to which the notice of period of work for adult workers as required under S. 61(8) of the Act shall be given. It is the case of the accused that when they proposed to make a change in the existing period of work and wanted a spread-over to twelve hours, they gave due notice of the same to the Factory Inspector in Form No. 11 and proceeded to give effect to the same as no order in the contrary was received by them. It is admitted by P.W 2, the Inspector of Factories that such notice (Ext. 1) was duly received by his office. He admitted that he was unable to say that if after the receipt of Ext. 1 any letter was addressed by his Department to the accused intimating to him that he cannot adopt the timings given in Ext. 1 and he was not in a position to deny that the Department had not addressed any such letter. It is the case of the accused that after such notice (Ext. 1) in Form No. 11 was duly even to the Inspector of Factories and when they id not receive any direction to the contrary, he in good faith, proceeded to give effect to the changed period of work. It is also the case of the accused that he notified the proposed change of the period of work to the Conciliation Officer as required under Section 9-A of the Industrial Disputes Act. Section 9-A of the Industrial Disputes Act, 1947, runs as follows:

“9A. Notice of change: No employer, who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the fourth schedule shall effect such change:

(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected: or

(b) within twenty one days of giving such notice.

8. Item No. 4 of the Fourth schedule relates to the Hours of work and rest intervals. Rule 30 of the Rules under the Industrial Disputes Act provides that any employer intending to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the 4th schedule shall give notice of such intention in form ‘F’. Rule 37 provides that where a number of workmen are not members of any trade union and where personal services is not practicable, the service of any such notice may be effected by affixing the notice to a notice board at or near about the entrance of the establishment and the notice shall remain so affixed for a period of 21 days.

9. There is no dispute that such a notice was affixed to the notice-board of the Factory. It is not also disputed that a notice (Ext. 2) in Form F in accordance with Section 9A of the Industrial Disputes Act, 1947, was sent to the Conciliation Officer on 10-10-1901. The Factory Inspector himself admitted that the said letter was received in his office on 12-10-1901.

10. Mr. Das, learned counsel for the respondent contended that they did not give effect to the notice before the expiry of 21 days as required under Section 9-A of the Industrial Disputes Act. The contention was that the Manager after having given the requisite notice under the aforesaid provision of law acted in good faith when he wanted to give effect to this period of spread-over of 12 hours. It was contended that the accused in his action is protected by the provision of Section 117 of the Factories Act. Section 117 runs as follows:

“No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act.”

11. “Good faith” as defined in Section 3(22) of the General Clauses Act runs as follows:

“A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not.”

12. It was contended by Mr. Mohapatra, learned Counsel for the appellant that the provisions of S. 50 quoted above, are mandatory and the accused had acted illegally in giving effect to the changed spread-over without waiting for the orders of the Inspector of the Factories. No doubt, that is so. But here he may be accused of negligence, but it cannot be said that he was not acting honestly. In fact, he gave the requisite notice of the proposed change to the Inspector of Factories as also to the Conciliation Officer. It is contended by the learned counsel for the accused-respondent that the provisions of Ss. 50 and 92 are also relaxable under certain circumstances. It appears that during the pendency of this case, by a notification of the Labour Department dated 13-12-1902 certain establishments were exempted from prosecution under S. 92 on accdunt of emergency and the Factory in question was one which enjoyed such exemption. Of course, the notification came in after the present case was started (See order No. 25 dated 12-1-1903 of the trial court) and the accused cannot derive any benefit under that notification.

13. Mr. Mohapatra further contended that S. 117 of the Act has no application to a case where anything done was in contravention of the Act, but it applied only to such cases where the act complained of was done or intended to be done by virtue of some obligation imposed by the Act itself. He relied upon a decision reported in Public Prosecutor v. Venkatramayya, AIR 1963 And Pra 106. In that case the Manager contravened S. 63 of the Act by allowing one woman worker to work beyond the period as notified under S. 61. The plea of the Manager was that the woman worker was a piece-meal worker and he bona fide believed that he could employ casual workers overtime and pay overtime wages. Their Lordships held that the Manager of his own choice and for his own purpose employed the worker overtime and it was not a thing done or intended to be done under the Act and the fact that he seems to have acted in good faith is immaterial. The facts of that case are somewhat different from the present case. Here there is no absolute bar to the spread-over.

14. Mr. Das, learned counsel for the respondent, apart from distinguishing the case on facts, contended that S. 117 of the Act covers all matters that can be connected with the Act. He urged that a spread-over of 12 hours of working time is not absolutely prohibited, under S. 56 but that could be done after due notice to the Inspector of Factories and his only obligation under the Act is to give a notice as contemplated under S. 61(10). His contention also is that the Manager can reasonably claim that this is one of the steps which he was called upon to perform under the Act and in good faith everything was done. He also relied on the aforesaid decision to show that S. 117 gives protection not only to the inspecting staff of the Factory Department, but to the Manager of the Factory as well. There seems to be no dispute on the point. It is contended that even if the accused is not entitled to protection under S. 117, still the defence bearing on the question of mens rea is still available to the Manager. It is well settled by authorities that unless the statute either expressly or by necessary implication rules out mens rea as a constituent part of the crime, the accused should not be found guilty of an offence unless he has a guilty mind, see Srinivas Mall v. Emperor, AIR 1947 P.C 135. The Supreme Court in a case reported in Hariprosad Rao v. State, AIR 1951 SC 204 he also applied the principle propounded in the aforesaid decision of the Privy Council, to a case under the D.I Rules. This principle of law has been applied to cases under the Factories Act by several High Courts in India. Ranjit Singh v. Emperor, AIR 1963 Oudh 308 Supdt and Remembrancer of Legal Affairs, Bengal v. H.E Watson, AIR 1934 Cal 730. No doubt, there are other decisions to the contrary, but I am in respectful agreement with the decisions just cited above. One of the main objects of the Act is to afford protection to the workers. It appears from the Ext. C that the workers themselves wanted a change in the existing working period and the Manager appears to have made the change in the spread over to suit the interest of the labourers without making any benefit for the employer.

15. The Act, in my opinion, has nowhere expressly or by necessary implication ruled out mens rea as an essential element of any offence in contravention of Section 50 thereof. Thus, the absence of mens rea is a good defence for the accused.

16. In view of this position, I am of the view that the order of acquittal is correct and must be maintained. The appeal is accordingly dismissed.

EI/D.R.R

17. Appeal dismissed.