R.SESHASAYEE Vs. DEPUTY CHIEF INSPECTOR OF FACTORIES

JUDGEMENT

(1.) Writ Petition is filed for issuance of Writ of Mandamus forbearing the respondent from enforcing the provisions of the Factories Act to the Petitioner's establishment in Regional Sales Office at Sembarambakkam, Tiruvallur District.

(2.) The petitioner is having factories at Ennore and Hosur in Tamil Nadu, Bhandara in Maharashtra and Alwar in Rajasthan. They manufacture chassis for commercial vehicles. The chassis manufactured by the petitioner in the factories referred to above are complete in all respects and fit for sale. The petitioner is having Regional Sales Office at Sembarambakkam, near Chennai. The chassis received from the factories are kept in the Regional Sales Office at Chennai. The petitioner is having Regional Sales Office in every State. The Regional Sales Office raises the invoice and delivery related documents and the dealers / customers take delivery from Regional Sales Office. The petitioner also delivers at the place of customers or dealers on their instructions. The Regional Sales Office at Sembarambakkam is situated in an area of 7 acres and approximately 600 to 700 chassis are stored in the said Regional Sales Office for sale. The Regional Sales Office handles about 1000 chassis in a month. In view of large number of chassis stored in an open yard and sometimes duration of the storage of few chassis is longer, the battery may require recharging or the tyres may require inflation or some touching on the paints may have to be done. The said Regional Sales Office is having a battery charger and a compressor to inflate the tyres and also facility for doing minor painting and touch up. These activities does not undergo any transformation. The petitioner engages casual workmen as and when required for the said work. The petitioner has engaged an outside security agency to provide security.

(3.) On 06.09.2006, the respondent visited the Regional Sales Office of the petitioner at Sembarambakkam and found that 15 persons were working in the establishment. Out of 15 persons, 3 were executives and 5 were security guards. Only 7 casual workers worked at that time and executives and security guards are not workmen as defined in the Factories Act, 1948. On 18.09.2006, the respondent issued notice to the petitioner calling upon the petitioner as to why it shall not be prosecuted for not having complied with the provisions of Factories Act, 1948. The respondent mistakenly issued the said show cause notice as the petitioner was using 2.5 HP compressor and the work of battery charging, inflating of tyres and repairing was done by the use of power. The petitioner on 09.10.2006 sent detailed reply and submitted that the petitioner would not be a factory within the meaning of Section 2(m) of the Factories Act, 1948 and requested for personal hearing. The respondent, without giving any personal hearing, rejected the explanation of the petitioner on 06.11.2006 and proceeded to enforce the provisions of the Factories Act, 1948. The respondent has not given finding with jurisdiction and the petitioner's right to appeal is also defeated. In the circumstances, the petitioner has come out with the present Writ Petition. In support of his contention, he produced the judgment of the Hon'ble Apex Court reported in (2001) 7 SCC 394 [Hussan Mithu Mhasvadkar Vs. Bombay Iron and Steel Labour Board and another], wherein at paragraph No.5 of the judgment, it has been held as follows: