Citation Codes

Equivalent Citations

citation codes

Case Number

Crl. A. No. 630of 1979

Attorney(S)

For the Appellant : The Public Prosecutor. For the Respondent : G. Gopalaswamy
Advocate.

Judges

Mr. Justice M.N. Moorthy

Acts

section 6(1) read with rules 3 and 4 of the Factories Act, 1948 and Tamil Nadu Factories Rules, 1950,
section 6(1) read with rule 3 and section 6(1) read with rule 4 of the Factories Act
section 6(1) read with rule 3 of the Factories Act
Section 2(1) of the Factories Act, 1948,
SECTION 313 CRIMINAL PROCEDURE CODE
section 2 (1) of the Factories Act,
SECTION 103 FACTORIES ACT
section 6(1) read with rules 3
Union." Section 2(m) (ii)

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Smart Summary

Summary of the Opinion

Factual and Procedural Background

S. Rajagopal, occupier-cum-manager of Thandapan (Dhandapani) Medical Hall, Palani, was convicted by the Sub-Divisional Judicial Magistrate, Dindigul, in S. T. C. No. 707 of 1976 for offences under section 6(1) read with rules 3 and 4 of the Factories Act and sentenced to pay a fine of Rs. 200 for each offence (with default simple imprisonment of one month for each). Rajagopal appealed in C. A. No. 145 of 1977 before the Sessions Judge, Madurai, who allowed the appeal and set aside the conviction and sentence (acquitted the respondent). The State, aggrieved by the acquittal, preferred the appeal against acquittal considered in this opinion.

The prosecution case (as described in the record) was that the Inspector of Factories (P.W. No. 1) inspected Dhandapani Medical Hall on 10th August, 1976 at 4:30 p.m.; the inspector recorded that sixteen male and seven female adult workers were working at that time and verified from the muster roll that 23 workers were employed on certain earlier dates. The inspector prepared Exhibit P-1 (particulars of workers) and Exhibit P-2 (inspection report). The prosecution alleged there was no prior permission from the Chief Inspector of Factories for construction of the premises and no valid licence for running it, and proceeded under the Factories Act after service of a show-cause notice and obtaining sanction.

At trial the respondent contended (in his section 313 statement and by calling a defence witness, D.W. No. 1) that the premises was not a “factory” within the meaning of the Act because the working places comprised two separate premises (an office and a medicines-preparation shed) and fewer than ten persons worked in the medicines-preparation part as permanent staff; some persons were only casual/daily-wage recruits. The trial Court, accepting the prosecution evidence about lack of permission and licence and the inspector’s evidence, convicted the respondent. The Sessions Judge, however, acquitted the respondent mainly on (a) the ground that office staff should not be counted with the medicines-preparation workers to reach the statutory threshold of twenty workers to constitute a “factory”, and (b) a limitation bar because the premises had existed since 1960 without prior objection. The State appealed against the acquittal.

Legal Issues Presented

Whether the premises of Dhandapani (Thandapan) Medical Hall constituted a "factory" within the meaning of section 2(m) of the Factories Act, 1948 (i.e., whether twenty or more workers were employed in the premises and thus the Act applied).
Whether the prosecution was time-barred (i.e., barred by limitation) so as to render prosecution under section 6(1) read with rules 3 and 4 of the Factories Act impermissible.

Arguments of the Parties

Appellant (State / Public Prosecutor)

Both sheds/structures on the same premises must be viewed together; the mere fact there are two separate sheds does not prevent the entire premises from being treated as a single factory.
The inspector found 23 persons working in the premises at the time of inspection (16 engaged in manufacturing and 7 incidental or in connection with the manufacturing process), which meets the statutory threshold for a factory.
Limitation argument is incorrect: the contraventions came to light only upon the inspection by P.W. No. 1; failure of inspecting staff earlier to detect the offence does not bar prosecution. The inspector detected the contraventions on inspection (the opinion records inspection and a complaint filing date), and the complaint was filed within the relevant period (complaint filed on 4th December, 1976 as recorded).

Respondent (Mr. G. Gopalaswamy — Defence Counsel)

The premises was not a “factory” within the meaning of the Factories Act because the place where medicines were prepared had only fifteen workers; persons working in the office (manager, typist, accountant) were not workers engaged in manufacturing or in work incidental to manufacturing and so should not be counted.
Merely being employed does not make a person a “worker” under section 2(1); the prosecution has not proved that the persons listed in Exhibit P-1 were engaged in work incidental or connected with the manufacturing process.
Reliance on authorities (Ramamoorthy, In re; Government Soap Factory, Bangalore v. Labour Court) to show deficiency in prosecution evidence and that office staff not connected with manufacturing should be excluded from worker count.
Defence evidence (D.W. No. 1) asserted that names 1–10 in Exhibit P-1 were office employees (no connection with manufacturing) and only 15 persons worked in the medicines-preparation area; further, some labour was casual/daily-wage and not permanent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramamoorthy, In re	Relied on by defence to show prosecution had not proved persons found in premises were "workers" and that prosecution evidence was defective.	Not adopted by the Court as sufficient to deny factory status; defence reliance noted but the Court found the prosecution evidence (inspection report and muster roll entries) adequate to hold premises a factory.
Government Soap Factory, Bangalore v. Labour Court	Relied on by defence to support the proposition that persons found in the office without connection to manufacturing cannot be treated as workers for purposes of constituting a factory.	Referenced by defence; Court considered the contention but held that where office work is incidental or connected to manufacturing (e.g., accounts, packing), such persons may be workers and thus count towards the statutory threshold.
Abdul Latif v. Karamat Ali	Held that an accountant keeping factory accounts is engaged in work incidental to the manufacturing process and remains a "workman" for purposes of the Factories Act.	Cited by the Court to support inclusion of office employees (such as accountants) as "workers" if their work is incidental or connected with manufacturing; used to broaden the concept of "worker".
Kadar Mohideer v. State	Held that a watchman can be a "worker" under section 2(1) if his duties bring him within work incidental to or connected with the manufacturing process; emphasises fact-specific inquiry.	Relied on to show that many categories (packers, movers, watchmen, etc.) can be workers depending on duties; Court used this to support a fact-specific approach to deciding who is a worker.
Abu Backer, In re	Held that a person employed through the agency of a contractor (with or without principal employer's knowledge) can be a "worker" under the Act.	Applied by the Court to confirm that employment through agencies does not exclude a person from being a worker for counting toward the factory threshold.
State of Kerala v. Chacko	Held that prima facie any person found working in the factory can be taken as a person employed in the factory; the word "premises" may include lands and multiple buildings on same premises.	Cited and relied upon by the Court to support the proposition that separate buildings/structures within the same premises can be aggregated for the purpose of ascertaining whether the place is a "factory".
V.R. Press v. Authority appointed under Payment of Wages Act	Used (together with Ardeshir) for the proposition that multiple buildings within the same premises may be treated as part of the same factory/premises.	Relied upon by the Court to support the view that persons working in two buildings on the same premises may together satisfy the threshold for a factory.
Ardeshir v. Bombay State	Similar support for treating multiple structures on the same premises as a single site for statutory definitions.	Relied upon along with V.R. Press to justify aggregation of workers across buildings on the same premises for deciding factory status.

Court's Reasoning and Analysis

The Court proceeded in stages, closely following the statutory definitions and the evidence on record:

Statutory definitions: The Court restated key statutory provisions:
- Section 2(1) of the Factories Act defines "worker" to include persons employed directly or through any agency in any manufacturing process or work incidental to or connected with the process.
- Section 2(m)(ii) defines "factory" to include any premises where twenty or more workers are working, or were working on any day of the preceding twelve months, in any part of which a manufacturing process is being carried on.
Factual application: The Court considered the inspector's evidence (P.W. No. 1) and Exhibit P-1 and Exhibit P-2 showing numbers of persons working at the time of inspection and on earlier occasions. P.W. No. 1 stated there were 23 persons working at the time of inspection, and the inspection report recorded more than 20 persons on earlier dates.
Who qualifies as a "worker": The Court reviewed authorities (Abdul Latif, Kadar Mohideer, Abu Backer) establishing that persons such as accountants, managers, typists, store-keepers, watchmen, packers, and others may fall within the definition of "worker" if their duties are incidental or connected with the manufacturing process. The Court emphasised that whether a person is a "worker" is a fact-specific enquiry depending on the duties actually discharged.
Aggregation across premises/buildings: Relying on State of Kerala v. Chacko and other authorities (V.R. Press, Ardeshir), the Court accepted the proposition that multiple buildings or sheds on the same premises may be treated together for determining whether the statutory threshold of twenty workers is met. The Court noted factual support (the inspector's observation that a product was prepared in one shed and later sent to the other shed where medicines were made, bottled and packed) indicating interconnection between the two parts of the premises.
Limitation: The Sessions Judge had held prosecution was barred by limitation because the premises operated since 1960 without objection. The appellate Court examined the timeline and found P.W. No. 1’s inspection and the filing of the complaint were within time; there was no evidence of prior inspection or prior notice of contravention to the authorities. The Court observed the inspection was on a date recorded in the judgment and the complaint was filed on 4th December, 1976, and concluded there was no bar by limitation.
Conclusion on merits: Based on the statutory definitions, the inspector's evidence, and the precedents expanding the concept of "worker" to include various categories of personnel when their duties are incidental or connected to manufacturing, the Court concluded the premises was a "factory" within the meaning of the Act (i.e., the threshold of twenty or more workers was satisfied when persons in both parts of the premises who qualified as "workers" were taken into account).
Disposition nuance: Although the Court held that the Sessions Judge's acquittal was erroneous for the reasons above, it also recorded that the Public Prosecutor did not press for any remedy beyond correction of the erroneous view. Consequently, despite finding the acquittal to be wrong, the Court declined to interfere further and dismissed the appeal against acquittal.

Holding and Implications

Holding: The Court held that the Sessions Judge's order of acquittal was wrong on the legal and factual issues (the premises did qualify as a "factory" and the prosecution was not time-barred); however, because the Public Prosecutor did not press for more than correction of the error, the Court ordered that the appeal by the State against acquittal be DISMISSED.

Implications

Direct effect on the parties: The acquittal granted by the lower appellate court remains in place as a result of the dismissal of the appeal; the respondent is not convicted further pursuant to this appeal.
Legal significance: The Court articulated and applied established principles about (a) the broad statutory meaning of "worker" (including persons whose duties are incidental or connected with manufacturing) and (b) aggregation of workers across multiple structures on the same premises to determine "factory" status. However, the opinion does not announce a novel legal principle; it applies existing authorities to the facts of the case.
No further remedial action was ordered by the Court because the Public Prosecutor did not seek more than correction, so the acquittal stands notwithstanding the Court's view that it was erroneous on the merits.

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State By Public Prosecutor v. S. Rajagopal

S. Rajagopal, Occupier-cum-Manager, Thandapan Medical Hall, Palani, was convicted by the learned Sub-Divisional Judicial Magistrate, Dindigul, in S. T. C. No 707 of 1976 for offences punishable under section 6(1) read with rule 3 and section 6(1) read with rule 4 of the Factories Act and the sentence to pay a fine of Rs. 200 in default to undergo one month simple imprisonment for each of the offences. Rajagopal preferred an appeal in C. A. No. 145 of 1977 before the learned Sessions Judge, Madurai. The appeal was allowed setting aside the conviction and sentence. Aggrieved by the order of acquittal passed by the lower appellate Court, the State has preferred this appeal against acquittal.

2. The case of the prosecution can be briefly stated as follows: Dhandapani Medical Hall situate at No. 18 Railway Feeder Road, Palani, was inspected by P. W. No. 1 the Inspector of Factories, on 10th August, 1976 at 4-30 p.m. At that time, there were sixteen male and seven female adult workers working. P. W. No. 1 verified from the muster roll that there were 23 workers working daily from 23rd April, J976 to 30th April, 1976 and on 22nd May, 1976 there were 21 workers and on 13th October, 1976 there were 23 workers. He prepared Exhibit P-1 regarding the particulars of the workers and got the attestation of the Manager No. 2 He then prepared Exhibit P-2 the inspection report. No previous permision had been obtained from the Chief Inspector of Factories for the construction of the factory building viz., Thandapani Medical Hall by submitting a detailed plan for the same along with the necessary Court fee stamp. There was also no valid licence obtained for running the factory by submitting the licence application with the necessary Court fee stamp. Hence, as the respondent has committed offences under section 6(1) read with rules 3 and 4 of the Factories Act, 1948 and Tamil Nadu Factories Rules, 1950, a show cause notice was served on the respondent. After getting the necessary sanction, proceedings were started against the respondent.

3. The respondent in his statement under section 313, Criminal Procedure Code, stated that it was true P. W. No. 1 had inspected his premises but his premises was not a ‘factory’ and it does not come within the purview of the Factories Act. Only less than ten persons worked in the premises. He examined D.W. No. 1, his Manager, as a defence witness. According to D.W. No. 1, the names 1 to 10 found in Exhibit P-1 are employed in the office. There was no connection between the office and the place where the medicines are prepared. At the place where m2dicines are prepared only fifteen persons worked. The names found from Nos. 13 to 23 in Exhibit P-1 are the workers engaged in preparing medicines. He stated that when there is more work, they were in the habit of recruiting persons on daily wages but permanent workers are only then in number.

4. Accepting the evidence, of P.W. No. 1 and the undisputed facts that there was no prior permission obtained from the Chief Inspector of Factories for constructing the factory building Dhandapani Medical Hall and that there was no valid licence obtained for running the said Medical Hall, the trial Court convicted the respondent.

5. In appeal, the learned Sessions Judge acquitted the respondent mainly on two grounds. Firstly, Dhandapani Medical Hill consists of two separate premises, one where the medicines are prepared and the other where the office is situate. The total number of persons working in both the places are 23. Only 15 workers, according to the respondent, worked in the place where the medicines are perpared. Persons working in the Office of the respondent cannot be taken into account along with the workers preparing the medicines to make the entire campus a ‘factory’. As only 15 workers and said to be in one premises preparing the medicines, it cannot attract the provisions of the factories act. Secondly, as the concerned premises was built in 1960 and there was no objection so far for the past 16 years, the prosecution under section 6(1) read with rule 3 of the Factories Act is barred by limitation and no prosecution would lie against the respondent.

6. Assailing the order of the learned Sessions Judge, the learned Public Prosecutor contended that both the reasons given for acquittal are erroneous. Merely because there are two separate sheds in the premises of the factory, each shed should not be viewed independently for determining whether the provisions of the factories act would be applicable or not. At the time of inspection by P.W. No. 1, there were 23 persons working inside the factory, 16 directly employed in the manufacturing process and seven others incidental to or in connection with the manufacturing process. As regards the limitation point, he urged that the learned Judge was wrong in holding as the factory building was constructed and was running from 1960, it was barred by limitation. He failed to see the contraventions had come to light only when P.W. No. 1 inspected the factory and even if there is failure by the Inspecting Staff to detect the offence before that could not be a ground for acquittal. P.W. No. 1 detected the offence of contravention of the provisions of the Act and the Rules on 10th September, 1976 and the complaint was filed on 4th December 1976, and there is no bar of limitation under the Act.

7. Mr. G. Gopalaswamy, learned Counsel appearing for the respondent, contended, before section 6(1) read with rules 3 and 4 could be invoked, it should be proved the premises is a factory within the meaning of Factories Act The evidence of P.W. No. 1 and Exhibit P-1, the details of workers, prove that the premises is not a factory. The names and nature of work found in Exhibit P-1 regarding some, like the Manager, Typist and Accountant, clearly prove that they are not workers. There is nothing to show that the persons mentioned in Exhibit P-1 were doing at that time in the premises. Their duties are not known to us. Merely being employed is different from being a worker.

8. M. Gopalaswamy relied on the decision in Ramamoorthy, In re1, to show that the pro-section has not proved the persons found in the premises are workers within the meaning of the Factories Act and the prosecution evidence is obviously defective. The prosecution is not fail to the respondent as they had not filed the muster roll. He also drew my attention to the decision in Government Soap Factory, Bangalore v. Labour Court2 to support his contention that the persons found in the office cannot be said to be workers as they had no connection with any manufacturing process being carried on, to make the concerned premises, a ‘factory’.

9. Section 2(1) of the Factories Act, 1948, defines a ‘worker’ as:

"Worker" means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of a principal employer, whether for remuneration or not in any manufacturing process, or in cleaning any part of them 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, but does not include any member of the armed forces of the Union."

Section 2(m) (ii) defines ‘factory’ as follows:

" "factory" means any premises including the precincts thereof whereon twenty or more workers are working, or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on..........."

The evidence of P.W. No 1 goes to show that some persons were working in one part of the premises dealing in the preparation of medicines and in the other part some persons were working in the office. If the persons working in both places come within the meaning of ‘worker’ then the premises undoubtedly becomes a ‘factory’.

10. In Abdul Latif v. Karamat Ali3, the Allahabad High Court held a person employed as an Accountant for keeping the factory accounts is a person in work incidental to the manufacturing process. The services of such a person continue after the stoppage of the manufacturing process. Such a person does not cease to be a workman for the purpose of the Factories Act.

11. In Kadar Mohideer v State4 our High Court held a watchman will be a ‘worker’ within section 2 (1) of the Factories Act, only if he could be brought within the words ‘employed’ in any other kinds of work whatsoever incidental to or connected with the subject of the manufacturing process’, which may take in many categories like packers, movers of the goods, etc , 1 have held, in accordance with the provisions of the Act, even a person employed through the agency of a contractor, with or without the knowledge of the principal employer, is a ‘worker’ in Abu Backer, In re5.

12. On the strength of the above decisions, I am inclined to agree with the learned Public Prosecutor that a ‘worker’ means a person employed directly or through any agency whether lor 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, and will include persons like Manager, Typist, Physicist, Store-Keeper, Accountant, Assistant Manager within the ambit of the definition of the Act if their work is incidental or connected with the manufacturing process. Whether a person is a ‘worker’ depends on the facts of each case. If the duties discharged actually by a person has got some connection with the concept of manufacturing process, he becomes a ‘worker’,

13. No doubt, Mr. Gopalswamy argued, before a person is branded as a ‘worker’, he should be involved in any work incidental to of connected with the manufacturing process as contemplated by the Act. On the evidence of P.W. No. 1 that when he inspected there were 23 persons working and on the inspection report Exhibit P-2 where it is stated more than 20 persons were working on previous occasions like on 23th April, 1976, 30th April, 1976 and 22nd May, 1976, I have no hesitation in holding the premises in the instant case is a ‘factory’.

14. The presumption under section 103 of the Factories Act is relied on by the learned Public Prosecutor to show that the persons found by P.W. No. 1 on the relevant date were workers In support of his contention, my attention was drawn to the decision in State of Kerala v. Chacko1. Govinda Menon, J , held that prima facie any person found working in the factory can be taken as a person employed in the factory. The word ‘premises’ in clause (m) of section 2 of the Act according to the learned Judge would include lands as well. This decision is also relied on by the State to prove that even if there are two buildings in the same premises it would still be a ‘factory’. For the same proposition, reliance is placed on the decisions in V.R. Press v. Authority appointed under Payment of Wages Act2, and Ardeshir v. Bombay State3. On the ratio of the above decisions, I am inclined to hold that even if persons are working in two places, it could come under the definition of ‘factory’. It is relevant to note here P. W. No. 1 has categorically stated some product made into powder in one shed was found being sent to the other where they were made into medicines and bottled and packed for being sent for sale.

15. As regards the launching of prosecution after the limitation period, it should be seen that P.W. 1’s inspection and the laying of complaint was within time. There is no evidence to show there was a prior inspection of the said premises, much less, the offence of contravention brought to the notice of the concerned authorities. Inspection by P. W. No. 1 was on 10th October, 1976, and the complaint was filed within three months, on 4th December, 1976. There is force in (he contention that the prosecution was time barred.

16. Thus, on a consideration of the evidence and the entire facts and circumstances of the case, the order of acquittal cannot be sustained. Even so, 1 am not inclined to interfere with the said order as it is stated by the learned Public Prosecutor that he does not press for anything more than the correction of the erroneous decision of the lower appellate Court. Hence, while holding the order of acquittal is wrong for the reasons mentioned above, the appeal against acquittal by the State shall stand dismissed.

State By Public Prosecutor v. S. Rajagopal

Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (State / Public Prosecutor)

Respondent (Mr. G. Gopalaswamy — Defence Counsel)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications

State By Public Prosecutor v. S. Rajagopal

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