Nesargi, J.:—
The petitioner was, in C.C No. 1478 of 1972 on the file of the Judicial Magistrate First Class (Second Court), Bangalore, convicted under Section 92 of the Factories Act, 1948 (to be hereinafter referred to as the Act) and sentenced to pay fine of Rs. 100 and in default of payment of fine, to undergo simple imprisonment for two weeks. He filed Criminal Appeal No. 15 of 1974. The Second Additional Sessions Judge, Bangalore, confirmed the conviction and reduced the sentence of fine to Rs. 50. The conviction and sentence are challenged in this petition.
2. The prosecution case is, as available from the complaint of the Inspector of Factories (P.W 1 Aswathanarayana), that at about 10.30 A.M on 19th August, 1972, P.W 1 visited Sundar Chemical Works, Nehru Nagar, Bangalore, and found 22 workers working there. He looked into the register maintained under Section 62 of the Act and noticed that the names of 8 workers out of these 22 workers, were not mentioned there. He then looked into the leave with wages register and found that entries had not been made. He also found that the first-aid box had not been maintained in accordance with the provisions of the Karnataka Factories Rules, 1969 (to be hereinafter referred to as the Rules of 1969), and that leave books in form No. 15 had not been issued to the workers. On examining the licence issued to the petitioner, he noticed that the licence entitled him to employ 20 workers, but in fact he had employed 22 workers. He called upon the petitioner to rectify all these things, and the petitioner wrote to him as per Ex. P-3. It is on this basis the prosecution has contended that the petitioner has contravened the provisions of the Act and the Rules of 1969, and, hence, committed an offence punishable under Section 92 of the Act.
3. The stand of the petitioner is that those 8 persons were not ‘workers’; that 2 out of them were employees only while the remaining 6 were casual labourers; that he had issued leave books in form No. 15 to all the workers in his factory and those books were with the workers; and that he had maintained the first-aid box and moreover was himself manufacturing tincture etc., in bulk and those medicines were available to the workers in the factory.
4. The two courts below have, on the basis of Ex. P. 3 the reply said to have been sent by the petitioner to P.W 1 and the provisions in Section 103 of the Act in regard to presumption to be raised in favour of the prosecution, come to the conclusion that the prosecution has satisfactorily established all the five counts against the petitioner.
5. Section 103 of the Act lays down as follows:
“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 purposes of this Act and the rules made thereunder, to have been at that time employed in the factory.”
6. ‘Worker’ is defined in Section 2(1) of the Act as follows:
“‘woker’ 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;”
7. The word ‘worker’ is not used in Section 103 of the Act. Section 103 of the Act makes it clear that a person 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, shall be deemed to have been employed in the factory. It does not say that he shall be deemed to have been employed as a ‘worker’ within the definition of the word ‘worker’ under the Act. An ‘employee’ is not defined in the Act. It, therefore, follows that all ‘workers’ within the meaning of the definition under the Act would be employees while all employees would not be ‘workers’. This Court has in the decision in Government Soap Factory, Bangalore v. Labour Court(1), held that the presumption under Section 103 of the Act is that a person is employed and not that he is a ‘worker’ in the factory. Therefore, the reasoning of the two courts below on the basis of this aspect of the matter, cannot be sustained.
8. Ex. P. 3 is a reply said to have been given by the petitioner to P.W 1 in response to the demand made by P.W 1 to rectify the irregularities that P.W 1 had noticed during his visit. Ex. P. 3 has not been put to the petitioner when his statement was recorded under Section 342 of the Code of Criminal Procedure, 1898. Therefore, no reliance can be placed on the contents of Ex. P. 3 as against the petitioner. This aspect of the matter has been ignored by the two courts below.
9. The evidence of P.W 1 can only be characterised as shabby. It does not provide any basis to enable the prosecution to contend that even any one of the five counts has been satisfactorily established. All that P.W 1 has stated is that the names of 8 persons mentioned by him were not found in the register maintained under Section 62 of the Act. He has nowhere stated that these 8 persons were ‘workers’ in the factory. In cross-examination he has admitted that he did not make any enquiries with any of these 8 persons as to the nature of the work they were doing and since how long they were working. Therefore, it follows that the prosecution has failed to establish that any of these 8 persons was a ‘worker’ within the meaning of the Act. In that view of the matter, non-finding of their names in the register maintained under Section 62 of the Act, which, in this case, is Ex. P. 4, does not amount to breach of the provisions of the Act.
10. P.W 1 has admitted in his cross-examination that leave books in form No. 15 would be with the workers. He has also stated further on that he did not make enquiries with the workers in the factory whether leave books in form No. 15 had or had not been issued to them. Hence, it is manifest that the prosecution has not been able to establish that leave books in form No. 15 had not been issued to the workers. The prosecution on that count has to fail.
11. P.W 1 has stated that leave with wages register is produced in the case and entries are not made in it. He had visited the factory on 19th August, 1972. Ex. P. 10 purports to be the register of leave with wages for the period from 1st April, 1970 to 31st March, 1973. I noticed that entries have been made in the register. It was the duty of P.W 1 to explain in what manner the relevant rule has been violated by the petitioner. He has not made out anything of that sort in his evidence. Hence, I hold that the prosecution has failed to establish this count also.
12. Ex. P. 4 is the licence issued to the petitioner on 31st August, 1971. It purports to be in form No. 4 as prescribed under Rule 5 of the Karnataka Factories Rules, 1952 (to be hereinafter referred to as the Rules of 1952). Rule 5 of the Rules of 1952 provides that Hence has to be issued on receipt of the prescribed licence fees, in form No. 4 of the said Rules. These Rules of 1952 were replaced by the Rules of 1969 which came into force on 11th March, 1969. Rule 5 of the Rules of 1969 states that a licence should be issued in form No. 3 of the said Rules. These facts show that Ex. P. 4 has been issued on 31st August, 1971 in the printed form supplied to the office of the Chief Inspector of Factories in Karnataka, under the Rules of 1952 and not under the Rules of 1969. Licence ought to have been issued to the petitioner as per form No. 3 of the Rules of 1969. The wording relevant for our purposes found in form No. 3 of the Rules of 1969, is “employing not more than the specified number of workers on any one ady during the year”. The relevant wording in form No. 4 of the Rules of 1952, is “employing not more than ………… persons on any one day during the year”. The change in the wording is apparent. In place of the word ‘persons’ the word ‘workers’ has been used. Sri V.C Narasimha, the learned Advocate appearing on behalf of the petitioner, urged that the burden is on the prosecution to establish that more than 20 workers had been employed by the petitioner on 19th August, 1972 when P.W 1 inspected the factory. Sri T.J Chouta, the learned Government Pleader, argued that the word ‘worker’ in form No. 3 of the Rules of 1969 carries the ordinary dictionary meaning and not the meaning provided by Section 2(1) of the Act. I am unable to agree with this contention of the learned Government Pleader. The word ‘worker’ is not defined in Rule 2 of the Rules of 1969. Many words which art defined in Section 2 of the Act are bodily lifted and used in many of the provisions in the Rules of 1969. In order to have a harmonious construction of the Act and the Rules of 1969, the same meaning will have to be attributed to the words. Moreover, it is apparent that while framing the Rules in 1969, the framers must have noticed the difference and, hence, replaced the word ‘persons’ used in form No. 4 of the Rules of 1952, by the word ‘workers’ in form No. 3 of the Rules of 1969. I agree with the contention of Sri Narasimha. When the prosecution has not established that any one of these 8 extra persons found by P.W 1 on that day, was a worker within the meaning of the Act, then it follows that the prosecution has failed to establish contravention of any of the provisions of the licence, by the petitioner. Therefore, I hold that on this count also the prosecution has failed.
13. In regard to maintenance of the first-aid box, P.W 1 has stated that the first-aid box had not been maintained in accordance with the Rules of 1969. It is not his say that the first-aid box was not at all maintained. The Rules of 1969 provide as to what should be the contents of the first-aid box. What was wanting in the first-aid box, is not narrated by P.W 1 in his evidence. Therefore, it will have to be held that the prosecution has failed to establish how the first-aid box maintained by the petitioner in the factory, was not in compliance with the provisions of the relevant rules in the Rules of 1969. The prosecution has to fail on this count also.
14. In view of the foregoing reasons, I allow this petition and set aside the conviction and sentence passed on the petitioner and acquit the petitioner.