1. The applicant has been convicted of two breaches of the provisions of the Factories Act and has been fined Rs. 30 on each count. His appeal before the Sessions Judge failed and he has now applied in revision. The first count is that he failed to display a notice of periods of work for adults showing the periods within which they were required to work and this is a breach of s. 39(1) of the Act and rule 70 which lays down that the notice shall be in English and in the language of the majority of the workers and shall be affixed at the main entrance of the factory. The second count is that the register of adult workers prescribed under S. 41 of the Act was not available for inspection when demanded. In rule 71, it is stated that the register shall always be kept available during working hours for immediate inspection. It has been held that the failure to produce it is a breach of S. 41(2), and the applicant, who is the owner and occupier of the factory, has been convicted under S. 60(c).
2. The facts are that the Inspector of Factories made his inspection shortly after 6 o'clock in the morning on a Tuesday.
3. He found in the factory only two notices, one in English and one in the vernacular, of periods of work and these were admittedly inaccurate and did not show the correct hours of working. He then demanded to see the register of adult workers and was told that the man in charge who had the keys had gone to case himself. It appears that he said he would re-turn later to see the register and came after 7 o'clock by which time the factory had closed down as it was a holiday but the person in charge of the book had then gone off to attend a funeral and the register was not produced until 3 o'clock in the afternoon. In respect of the first count there is no doubt that a breach of the Act has been committed. It was argued that the applicant was prosecuted, not for failing to display a notice, but for displaying an incorrect one and that if he had been charged with not displaying a notice he would have been able to show that he had displayed it. This argument has no force. The prosecution was launched because there was no notice as prescribed in s. 39(1), and displaying an incorrect notice is tantamount to not displaying the notice prescribed. It was alleged that the correct notice had been displayed and had been overlooked. This has been found as a fact to be untrue and the Inspector has deposed that he went all over the factory and could not find the correct notice. The notices which he did see were stated at various times by the manager to be old notices and notices which referred to the shop and not to the factory. The application in revision, so far as it concerns this count, must fail.
4. In respect of the non-production of the register on demand the application must succeed. The failure to produce the register is undoubtedly an offence but it was an offence only in so far as the person who failed to produce it is concerned, and that person is not the applicant but the munim who was in charge at the time. The conviction isl said to be under S. 60(c), and under S. 60 both the manager and the occupier are equally liable for breaches of the provisions enumerated in that section, and s. 60(c) deals with contraventions, inter alia, of the provisions of Ss. 39 to 41 and rules made under them. Rule 71 purports to be made under s. 41(2). That rule reads as follows:
The register of adult workers prescribed under S. 41 of the Act shall be in Form I and shall be written afresh on the first working day of each month or alternatively at regular intervals which do not exceed one month. The register shall always be kept available during working hours for immediate inspection and shall not be destroyed before the expiry of 12 months from the date of last entry therein.
5. It is contended that the words in this rule which relate to the register being kept available for immediate inspection are ultra vires of the Act and in particular of section 41(2). Section 41(2) reads as follows:
The Provincial Government may make rules prescribing the form of the Register of Adult Workers, the manner in which it shall be maintained and the period for which it shall be preserved.
6. There is nothing in s. 41(2) as to the availability of the register for inspection. Failure to produce a register on demand would be a breach of Ss. 11 and 63 but it would not be a breach of any rule made under s. 41(2) since the availability of the register cannot possibly be brought within the words “the manner in which it shall be maintained.” The words in R. 71 “the register shall always be kept available during working hours for immediate inspection” are thus not ultra vires of the Act but these words are ultra vires of any rule made under s. 41. Consequently the owner and occupier of the factory who was not present himself and from whom no demand for the production of the register was made cannot be liable under S. 60(c) of the Act which relates to Ss. 39, 40, 41, 44 and 47 only. The breach in question is one punish, able under section 63 of the Act which deals with wilful obstructions of an Inspector or failure to produce on demand any registers in the custody of the person from whom the demand for inspection is made. The correct person to prosecute for this offence then is not the applicant, who is the owner of the factory, but Tukaram the munim of the factory from whom the demand was made. The vicarious liability of the owner and occupier of the factory does not extend to a breach by a servant in immediate charge who fails to produce a register on demand. The result is that the application succeeds in part only. The fine of Rs. 30 in respect of the non-production of the register on demand is set aside and if paid will be refunded.
7. Application partly allowed.