SHEO PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) THE applicant Sheo Prasad has been convicted under Section 92, Factories Act (hereinafter called the Act), and sentenced to a fine of Rs. 500/- which has already been deposited. He was also directed under Section 102 of the Act to comply with the rules the transgression of which was detected. THE case was that the Factory Inspector on 28-2-1979 inspected Laxmi Rice and Dall Mills, Jari, P. S. Ghoorpur, Allahabad, and found the following breaches of the rules under the Act: 1. THE Building plan had not been got approved by the Chief Inspector of Factories. 2. THE certificate of stability of the building wherein the manufacturing process was carried on with the aid of power had not been got approved, and 3. More than nine persons were employed in the Establishment for the manufacturing process at the time of inspection but the factory was not registered and the necessary notice of occupation had not been submitted to the Chief Inspector of Factories It is not disputed that these omissions would amount to a violation of rules 3, 6, 7 and 13 read with Section 6 of the Act punishable under Section 92 of the Act. THE person prosecuted was the applicant to whom before prosecution a registered notice of this inspection note was also sent.

(2.) THE sole point canvassed in this revision is that the prosecution has failed to prove that the applicant is the occupier liable for these offences. Notice of occupation not having been given to the Chief Inspector of Factories, under Section 100 of the Act, if the factory is owned by a firm or, other association of individuals or every one of the partners may be prosecuted and punished for any offence for which the occupier of the factory is punishable. Now the Inspector of Factories deposed in his statement that the workmen present at the factory had told him that the applicant was a partner and looked after the work and paid their wages. It was on this basis that the applicant was treated as occupier and the registered notice Ex. Ka. 1 was sent to him on 28-2-1979. It was suggested to the Factory Inspector in cross-examination that the applicant was neither a partner nor an occupier. In his own statement the applicant merely stated that he was not an occupier. It is significant that he did not deny being a partner. Learned counsel for the applicant urged that the alleged statement of the workmen at the time of inspection being only hearsay can be no evidence of the fact that the applicant is in fact the person controlling the establishment viz. paying their wages and taking care of the establishment. I cannot agree., THE contemporaneous statement of the workmen at the time of inspection itself about the identity of the incharge who was controlling the business would be admissible under Section 6 as well as Section 11 of the Evidence Act as proof of such identity. This statement was part of the transaction which is in issue and also makes the existence of the fact that the person given out was really the incharge of the business highly probable. I am also inclined to think that this might also be admissible under Section 32 of the Evidence Act as a statement made by the workmen in the ordinary course of business, it being the most natural for the Factory Inspector who found certain transgressions to have taken place to enquire from the workmen about the person incharge and their replying to him. It is, therefore, not possible to hold that the finding that the applicant was the occupier is based on no evidence. THE fact that in his statement the applicant denied merely being an occupier and did not specifically say that he was not even a partner fortifies this conclusion.