STATE OF GUJARAT Vs. KANSARA MANILAL BHIKHALAL

JUDGEMENT

(1.) On June 21, 1960 at 5-30 A.M. the Inspector of Factories Bhavnagar, visited Saurashtra Metal and Mechanical Works, Wadhwan City, which is a factory within the meaning of S. 2 (m) (i) of the Factories Act, 1948. He found seven workmen working on a machine and on examining the notice of period of work for adult workers and the register of workers he found that three of the workmen belonged to a group which was expected to begin work from 7 A.M. He commenced proceedings under S. 63 of the Factories Act, 1948 against the respondent Mr. Kansara Manilal Bhikalal as the occupier - Manager of the factory, after issuing notice to him to show cause. He asked for enhanced penalty under S. 94 of the Factories Act because, the said Mr. Manilal Bhikhalal was convicted on a previous occasion in three cases. As three workmen were concerned three separate complaints were filed in the Court of the Judicial Magistrate, First Class, Wadhwan City.

(2.) The defence of the respondent was that he was not the occupier and manager of the factory. It may be pointed out that one Mr. Dangi and the respondent are partners. They have another factory at Dhrangadhra and the defence was that Mr. Bhikhalal was manager at the Dhrangadhra factory and Mr. Dangi was manager at Wadhwan. Another defence was that a machine had gone out of order the previous day and after it was repaired work was started a little earlier the next, day, because production had suffered and goods were required. The Inspector, it was stated, was informed by a letter (Ext. 11) written on the 20th about the change of timing though the letter, unfortunately, did not reach the Inspector till the 22nd. It was admitted that this change in the hours of work was not notified and displayed as required by S. 61 (1). It was urged that S. 61 (10) permitted a change to be made in the system of work in a factory and as this provision was fully complied with, there was no offence. The Judicial Magistrate did not accept these defences. According to him, Mr. Dangi's letter (Ext. 15) showed that the respondent was the occupier and the manager of the factory at Wadhwan. On the second defence the Magistrate was of the opinion that the hours of work could not be changed without the permission of the Inspector of Factories under sub-s. (10 ) of S. 61. The contention on behalf of the respondent that this being the first change it was not necessary to wait for one week before making another change, was not accepted because it was held that the factory manager must always wait for one week before introducing a change. The respondent was, therefore, convicted under S. 63 of the Factories Act in respect of three offences and under S. 94, enhanced punishment was imposed upon him by ordering him to pay a fine of Rs. 100 in respect of each offence.

(3.) On appeal the Sessions Judge of Surendranagar ordered the acquittal of the respondent. The learned Sessions Judge held that the second part of S. 61 (10) applied to a case of second or subsequent change and this being the first change it did not fall within the second part. According to the Sessions Judge, it fell in the first part of the sub-section and the change could not be said to have been effected in breach of that part since the Inspector of Factories was informed about the change. The learned Sessions Judge was also of the opinion that S. 117 of the Factories Act protected the action because it was bona fide. The conviction and sentence were accordingly set aside. The State of Gujarat appealed against the acquittal but was unsuccessful. A Division Bench of the High Court which heard the appeal agreed with the Sessions Judge in his interpretation of S. 61 (10) and did not express any opinion on S. 117 of the Act. In this appeal filed by special leave of this Court these two points have again arisen for our consideration.