Broomfield, J.:—
These are appeals by Government against the acquittal by the Sessions Judge of Ahmedabad of the occupier and the manager of the Vivekanand Mills, Ahmedabad, who were convicted by the City Magistrate of offences under section 41(a) of the Indian Factories Act.
According to the standing orders posted in the mill and notified to the Factory Inspector under section 36 of the Act the working hours for the night shift in the month of May 1932 were 6-30 p.m to 5-30 a.m with one hour's recess from 11-30 p.m to 12-30 a.m The Factory Inspector, who is said to have received complaints that the mill had been working overtime, paid a surprise visit at 5-45 a.m on May 4 and found the mill still working. Holding that an offence had been committed, he took down the names of some of the mill-hands who were working and made complaints, which have led to the present appeals.
The defence was that owing to the breakage of a rope the working of the mill was stopped for fifteen minutes from 3-15 to 3-30 a.m, and therefore the closing hour was extended to 5-45 a.m The learned Government Pleader was not prepared to concede that there was in fact a stoppage of fifteen minutes. The evidence on the point is not free from doubt, but apparently that point was not seriously disputed in the trial Court, and in the appeal before the Sessions Judge the argument proceeded on the basis that there had been a break-down and the time had been extended for that reason. The evidence did not show whether the working hours had been extended by the manager, who, under section 26, has to fix the hours of employment. The Sessions Judge directed further evidence to be recorded, and after considering this evidence he held that the engine stopped owing to the breakage of a rope from 3-15 to 3-30 a.m, and that at about 3-30 a.m the manager changed the time-table and ordered the heads of departments to work till 5-45 a.m Here, again, the evidence is not altogether convincing. But on the whole we think that no sufficient Page: 141grounds have been shown for not accepting these findings of fact, and we are of opinion that the present appeal must be decided on the basis that they are correct.
The question is whether on these facts the accused were rightly convicted of offences under section 41(a) and whether the acquittal by the Sessions Judge in appeal should be set aside. It depends on the construction of certain provisions of the Act. The relevant sections are sections 26, 27, 28, 36, and 52 which provide as follows:—
“26. The manager of a factory shall fix specified hours for the employment of each person employed in such factory, and no person shall be employed except during such hours.
27. No person shall be employed in a factory for more than sixty hours in any one week.
28. No person shall be employed in any factory for more than eleven hours in any one day.
36. (1) There shall be fixed in some conspicuous place near the main entrance of every factory, in English and in the language of the majority of the operatives in such factory, the presented abstracts of this Act and of the rules made thereunder, and also a notice containing the standing orders of the factory upon the following matters, namely:—
(a) the time of beginning and ending work on each day;
(b) the periods of rest fixed under section 21;
(c) the hours of beginning and ending work for each shift (if any);
(d) the hours of employment of all persons employed; and
(e) the weekly holidays fixed under section 22.
(2) A copy of the said notice shall be sent to the Inspector within one month of commencing work.
(3) The said notice shall be correctly maintained and kept up to date and any change in the standing orders of the factory shall be entered therein by the manager before such change comes into force; and, when any such change is entered in the notice, a copy of the notice or of the order in which the change is made shall be sent in duplicate by the manager to the Inspector within thirty-six hours.
52. In computing the hours referred to in section 23, clause (c), section 24, clause (b), section 27, section 28 and section 31, any interval by which work is interrupted for half an hour or more shall be excluded.”
Section 41 prescribes penalties inter alia for the employment of any person contrary to any of the provisions of the Act, clause (a), and for failure to comply with any of the provisions of section 36, clause (b). The prosecution here Page: 142was under clause (a). The specific offence alleged is a breach of section 26. So that we are mainly concerned with that section, the short point for determination being, whether when the manager, by his order at 3-30 a.m or thereabouts, extended the working time to 5-45 a.m, he had fixed the hours of employment within the meaning of section 26.
The view taken by the trial Magistrate was this. He found that the provisions of section 36 had not been complied with, because the notice of the change in the hours had not been sent to the Inspector in duplicate, nor in the proper form, and because there was nothing in the evidence before the Magistrate to show that the change in the working hours was made before the change came into force; and he held, therefore, that the hours of work were as fixed in the standing orders, and that the employment of the hands beyond 5-30 a.m was an offence against section 26.
The Sessions Judge took the view that the failure to comply with section 36 was not the charge against the accused, and could not constitute an offence under section 41(a). That offence could only consist in the present case of a breach of section 26, 27 or 28. There was no breach of section 28 because the mill only worked for ten and a quarter hours nor of section 27, because, as it happened, there was a strike in the coarse of the week, so that no mill-hands were employed for more than sixty hours. The learned Judge held that there was no breach of section 26 either because the manager had fixed specific hours of work for that night by the special order which he gave at about 3-30 a.m when the engine resumed work.
I think the Sessions Judge was clearly right in his view that the failure to comply with section 36 would not in itself amount to a breach of section 26 or justify the conviction under section 41(a). In my opinion it is very doubtful whether section 36 has any application at all. It relates to the publication and notification of the standing orders Page: 143as to working hours, etc., and to the notification of changes therein. But when the manager ordered that the hours of work should be extended by fifteen minutes on that particular night, he was not, strictly speaking, making any change in the standing orders. The next night they would normally be the same as before, i.e, 6-30 p.m to 5-30 a.m It was a case not of any change in the standing orders according to the ordinary use of language, but of a departure from the standing orders on a special occasion. The language of clause (3) of section 36, particularly the requirement that the change must be entered in the notice before it comes into force, would not be at all appropriate if it was intended to apply to an extraordinary extension of the working hours to make up the time lost owing to unforeseen accidents. I shall have a little more to say about section 36 later.
Section 52 has also been referred to in the judgments of the lower Courts and in the arguments. The evidence of the Factory Inspector, Mr. Phillips, shows that in his opinion the manager is entitled to make up time if there was a stoppage of more than thirty minutes but not otherwise. But section 52 does not in any way govern section 26. As the stoppage in this case was for fifteen minutes only, the time could not be excluded under section 52, and the employees must be taken to have worked for ten and a quarter hours. If the stoppage had been for more than thirty-five minutes and the hours had been extended to 6-05 a.m, the hours of work for the purposes of sections 27 and 28 would only have been ten, assuming that the expression “any interval by which work is interrupted” in section 52 covers the case of accidental interruptions, as it apparently would. But section 52 cannot help us in any way to determine whether the hours of work had been fixed or whether any persons were employed beyond the fixed hours within the meaning of section 26. The learned Government Pleader concedes that if his argument in support of these appeals is correct, it is necessary for the Court to hold that there can be no departure Page: 144from the fixed hours on account of any stoppage, long or short, or for any other reason. Ultimately he appeared to take up the position that the hours of employment are to be fixed by the standing orders notified under section 36, and that there can be no departure from the times so fixed without a change in the standing orders also notified as provided.
There is something to be said, for this view. In this case the engine stopped for fifteen minutes. But it might have stopped for three hours. If the manager could extend the time till 5-45 a.m, he could have extended it to 8-30 a.m There might be frequent stoppages for varying periods, and the hours of work, though nominally fixed in the standing orders, might in practice become quite irregular. Moreover, as a break-down in the machinery might affect some and not others, it might be difficult for the supervising authorities to discover whether particular individuals were being employed overtime or not. Nor would it be at all necessary that there should be any stoppage or accident of any kind. If the manager had power no extend the time, be could do so for any reason or for no reason at all, subject of course to sections 27 and 28. No doubt, there would be the safeguard that in every case there would be need to be evidence forthcoming that the manager had made an express order specifying the hours of work for that particular day or night. In practice, however, this would be hardly any safeguard. If fixing specified hours only means that there must be an order to work from such a time to such a time without previous notice, the manager might simply say just before the whistle blows that the mill would carry on till any hour he chose to name. According to the learned Sessions Judge the object of section 26 is to prevent other officers of the mill from taking work from the employees beyond the hours fixed by the manager. In my opinion, the main object of the section probably is not to ensure that the manager and no one else should fix the hours, but Page: 145that the hours should be fixed and regular. Hours of employment are to be fixed, as the marginal note says, that is, as I suppose, they are not to be subject to sudden or casual alteration at any one's discretion or caprice. If the manager of a mill, because there is a break-down, or because the engine is running badly, or because it is running particularly well, or because there is pressure of work, or because it is a fine day or because it is a wet day, has only got to say, “very well, we will work on till 5-45, (or 6 or 8 or whatever hour it may be), instead of 5-30”, the standing orders would become a dead letter, and there would be no such thing as fixed and regular hours.
On behalf of the accused much stress has been laid on the fact that clause (3) of section 36 assumes that there is power to change the standing orders. Now in itself this would be beside the point. Power to change the standing orders after previous notice and subject to the condition that a copy of the order making the change has to be sent to the Inspector within thirty-six hours is perfectly consistent with a reason—able fixity of hours. But the argument that is put forward is that a special order changing the hours of employment for a particular day or night, even though made as it was in this case in the course of the day or night, is a change in the standing orders within the meaning of this section. Besides the normal working time-table, a copy of which is sent to the Inspector under section 36, this mill keeps a daily time-table, which is written up daily and shows the hours of work for the particular day. According to the evidence the daily time-table is kept during the day at the mill-gate and at night outside the office. The table which is exhibit 2-1 shows in two columns the working hours and the recess time, and normally the entries made are the hours as fixed in the standing orders. But if for any reason the mill does not work for the regular hours, the figures are changed. The entry for May 3, 1932, appears to have been originally Page: 146“6-30 to 5-30”, but the latter figures have been altered to “5-45” and there is a note in the margin about the stoppage of the engine. The Inspector says in his evidence that this note had been made at the time he arrived at 5-45 a.m and appeared to have been freshly written. He seems to have suggested that the entry was made hastily when his arrival was reported. The entry for May 4 is “6-30 to 4-35.” There is a note that the engine stopped at 4-35 for fifty-five minutes for the condenser. These figures have not been altered. It could not have been anticipated that the work would stop for engine trouble at 4-35 a.m So this entry shows that the times are not always at any rate entered in advance. It is in evidence (see exhibit 2-6) that the manager wrote for permission to make up this lost time by instalments of thirty minutes and twenty-five minutes, and the Inspector intimated that there was no objection as the stoppage was for over half an hour. Consequently the working hours on May 5 were 6-30 to 6, the latter figure being written over something else, and on the 6th, 6-30 to 5-55. I have mentioned these details because great importance has been attached to this document, exhibit 2-1, which is alleged to be a notice of changes in the standing orders within the meaning of section 36. According to my understanding of the section, this is not so. It is true that clause (1)(a) of section 36 mentions the time of beginning and ending work on each day, but what is referred to is the standing orders about the time of beginning and ending work on each day, and not I take it, a fresh notice which is posted daily. No copy of this daily time-table is sent to the Inspector though that would be necessary if section 36 applied to it, and it is not in the form prescribed by the rules for the notice under that section. It is obviously in some cases not a notice at all, but a mere record, made after the event, of the hours actually worked. Apart from that, the changes in the working hours shown in this time-table are not, as I understand the matter, changes in the standing orders, which remained constant Page: 147throughout the period covered by exhibit 2-1, but exceptions to or departures from the standing orders, i.e, the normal hours of work. Even if we were to assume, however, that the expression “change in the standing orders” in section 36 is loosely used and that it would cover an extraordinary departure from the standing orders, as well as a change in the standing orders themselves, it would by no means follow that the order made by the manager in this case would be a valid order fixing the hours of employment within the meaning of section 26. For if section 38 is to be looked at all, it requires an order fixing the hours of employment for each day and each shift, or if the order is one making a change, then a change in the hours of employment for the day or shift, and the change must be notified before it comes into force. I should take that to mean before the work of that day or shift commences. It would not cover a change in the course of the day or shift, as the case may be.
The fact that the Inspector, who has had to administer the Indian Factories Act in Ahmedabad for many years, appears to hold that the manager can extend the hours of work to make up time, provided there has been a stoppage of not less than half an hour, has caused us some difficulty. I am not sure what he means by “making up time”. Let us assume for the moment that the manager has power to extend the hours of work beyond those fixed in the standing orders in the case of a stoppage. If the stoppage is for twenty-five minutes, and he orders that much extra work, he does not make up any time at all. For under section 52, the twenty-five minutes will not be excluded in the computation of the hours of work. It will simply mean that the mill has worked twenty-five minutes overtime. If on the other hand, the stoppage is for thirty-five minutes and the mill works that amount extra, it may be said that the time is made up, for the extra time will be excluded, and the hours of work will be the same as if there had been no Page: 148stoppage. But this if simply a matter of computation. It has nothing to do with the power of the manager to fix or alter the hours. If he can extend the time at all, he can as well do so for five minutes as for fifty minutes.
I come back, therefore, to the position from which I started, that the point at issue really depends on the meaning of section 26. After giving my best consideration to the matter I have come to the conclusion that the meaning of this provision, that the hours of employment must be fixed and that no person shall be employed except during, the fixed hours, is neither as held by the Sessions Judge, nor as contended by the Government Pleader. I have already sufficiently indicated the unsatisfactory consequences which would ensue if the manager had the wide license in the matter of fixing hour which the Sessions Judge's view would give him. Or the other hand, the extreme view that there is no power to deviate from the standing orders, but only a power to change the standing orders, cannot be justified, I think, by the provisions of the Act. In the first place, I am not sure that the Act necessarily requires that there should be any standing orders as to hours of employment at all. If there are standing orders, then they are regulated by section 36. But there does not seem to be anything to prevent the manager from fixing the hours of work for each day separately if he thought fit to do so. Let us assume, however, that there are standing orders, or even that there must be. If the manager were to put up a notice saying that owing to certain reasons the hours of work on the following day or some future day would be 6 to 11 p.m and 12 to 5 a.m instead of 6-30 to 11-30 and 12-30 to 5-30, or to take an example more in point, that owing to loss of time through engine trouble the hours of work on the following day would be 6-30 to 11-30 and 12-30-to 5-45, it would be impossible to say that the provisions of section 26 would be infringed. As far as I can see, no other provision in the Act would be infringed either. I am Page: 149taking it for granted of course that the total hours in the week would not exceed sixty. I am not prepared to hold, therefore, that the Act requires that there should be standing orders as to the hours of work which cannot be departed from as long as they are in force. If that had been the intention, there would, I think, have been an express provision to that effect. At the same time, the Act requires that the hours should be fixed. That requirement would be satisfied if the hours for any day or shift are notified before the day or shift commences, so that any person employed in the mill, who goes to work on that day or in that shift, knows beforehand that he will have to work during those hours and no longer, and any inspecting officer who visits the mill can ascertain at once what are the working hours for that occasion. I do not consider that the requirements of section 26 are satisfied by anything less than that. If the notified hours are 6-30 p.m to 5-30 a.m, and the manager, called from his bed in the middle of the night because a rope breaks, sends word to the heads of departments that the work is to continue till 5-45 a.m and the work continues accordingly, I hold that is an infringement of section 26 and the mill-hands are employed otherwise than during the fixed hours.
The Magistrate was, therefore, right in convicting the accused of offences under section 41(a), and the acquittal by the Sessions Judge is based on an incorrect view of the law. As an important principle is involved, the convictions must be restored. But, as it is in the nature of a test case, and the point does not appear to have arisen before, we think that a normal fine will suffice.
The order of the Sessions Judge must, therefore, be set aside and the convictions by the Magistrate restored. We reduce the amount of fine to Rs. 75 (seventy-five) in appeal No. 304 and to Rs. 50 (fifty) in appeal No. 305.
Divatia, J.:—I concur. The question involved in this appeal relates to an important, though rather difficult, point of law about the construction of sections 26, 36 and 52 of the Indian Factories Act. The accused have been acquitted on appeal in the lower Court of the offence of employing workmen except during specified hours fixed by the manager of a mill under section 26, punishable under section 41(a) of the said Act. The facts found by the lower Court are that although the hours fixed on the night in question were 12-30 a.m to 5-30 a.m, the mill stopped working for about fifteen minutes from 3-15 a.m to 3-30 a.m on account of the breakage of a rope in the machinery and that the manager, therefore, extended the closing hour to 5-45 a.m, and issued an order to that effect, and for the information of workmen he also endorsed the change on the time-table of the night shift kept outside his office and on the same day informed the Inspector of Factories of that change and its reason.
Without going into the facts and the reasons given by both the lower Courts in support of their decisions, both of which have been dealt with fully by my learned brother, I will state that I agree in the conclusion that the accused are guilty of the offence under section 41(a) read with section 26 of the Act. The principal point to consider in the case is whether the power given to a manager under section 26 to fix special hours for the employment of each workman includes the power to change and extend that period after the factory begins its work under the time-table fixed by him. I agree with the Sessions Judge that the discretion to fix the working hours, subject to the limitations prescribed under the Act, vests solely in the manager, and that he can change those working hours on complying with the conditions stated in section 36(3) of the Act, but I do not think that power of change can be exercised by the manager after the mill starts working on the period fixed by him. Under section 26, though the power of fixing the hours is Page: 151given to the manager, it is provided that no person shall be employed except during such hours, and in making that provision the intention of the Legislature seems to have teen that once you fix the specified hours under which the factory begins its work, you must stick to them, and any change subsequently made therein could not be covered by the change in the standing orders as contemplated by section 36(3), but would be an unauthorised departure from the fixed period on a particular day. This is the only construction which, to my mind, is in consonance with the general spirit of the Act and the particular words used in section 26. If any extension of the fixed period is required for extraordinary reasons, then that is separately and specifically provided for in section 30 of the Act.
I do not think that section 52 of the Act has any application to the point under consideration here. That section does not apply to cases falling under section 26, and when it speaks of exclusion of intervals of interruption for half an hour or more, it contemplates intervals of recess, etc., which are to be excluded in the computation of the period, and it does not speak of the power of the manager to extend the time after the work is started. The opinion of the Inspector of Factories that section 52 would apply if the period of stoppage in the present case would exceed half an hour does not seem to be correct.
However, the offence committed by the accused is not probably an intentional evasion of the Act as the manager seems to have believed in good faith that he had the power to extend the time. In view of this circumstance and also in view of the fact that the point was a difficult one of construction of the Act on which even the Inspector of Factories held an erroneous opinion, I think that the offence is a technical one and should be dealt with accordingly.
Appeal allowed.
J.G.R