JOHN DONAL MACKENZIE Vs. CHIEF INSPECTOR OF FACTORIES

JUDGEMENT

(1.) The writ application in M. J. C. 945 of 1956 and the two criminal references, namely, Criminal Reference No. 129 of 1956 and Criminal Reference No. 76 of 1957, have been heard together with the consent of the parties as they all relate to the same concern and a common question of law is involved in all of them. This judgment will, therefore, govern them all.

(2.) The facts giving rise to the above cases, stated shortly, are these : The Bata Shoe Company, hereinafter to be referred to as the company, is a private limited company having) its registered office at 30 Theatre Road, Calcutta 16. It owns various factories at different places, one of them being at Digha in Patna. Mr. J. D. Mackenzie is at present undisputedly the manager of the factory at Digha. He is petitioner No. 1 in the writ application and petitioner No. 2 is the above factory. Under Rule 4 of the Bihar Factories Rules, 1950, hereinafter to be referred to as the rules, framed under Section 6 of the Factories Act, 1948 (Act No. 63 of 1948), hereinafter to be referred to as the Act, the occupier of a factory is required to submit to the Chief Inspector of Factories an application for registration of the factory and grant or renewal of a licence. Originally, Mr. K.R. Vytopil was the manager of the above factory and he, claiming also to be an occupier of the same, applied for registration of the factory and grant of a licence, and the above factory was duly registered bearing registration No. 78/PT and a licence was duly granted by the Chief Inspector of Factories, Bihar, with the approval of the Bihar Government as required by law in his name valid up to 30th of December, 1950. The licence was renewed from time to time on applications being made by the said Mr. K. R. Vytopil for the years ending on 31-12-1951, 31-12- 1952, 31-12-1953, and 31-12-1954. The petitioner No. 1 assumed charge of the above factory on 1-4-1955, and claims to have been the manager as well as the occupier of the factory since then. On 20-30-1955, he describing himself as the occupier of the factory made an application for the renewal of the licence and it was issued in his name valid till 31-12-1956. On 26-10-1956, petitioner No. 1 again describing himself as an cccupier of the factory made an application for the renewal of the licence accompanied by a notice o occupation signed by him both as occupier and manager. The Chief Inspector of Factories, Bihar, Ranchi, opposite party No. 1 in the writ application, by his letter No. 13292, dated 19-11-1956, intimated to the Managing; Director of the company his decision that petitioner No. 1 was not the occupier of the factory in question and required an application for renewal of the licence and the notice of occupation to be filed by a Director of the company. On 22-11-1956, the Chief Secretary of the Company replied to the opposite party No. 1 that the proper person to apply for renewal of a licence was petitioner No. 1 who is the occupier of the factory and that the company was not the occupier. Thereafter, on 6-12-1956, by letter No. 8823, opposite party No. 1 required the Directors of the company to submit an application for the renewal of the licence and the notice of occupation within 15 days and threatened to direct the Inspector of Factories to institute a case against the occupier under the penal section of the Act. The position, therefore, is that the licence in question has not yet been renewed and no action has been taken in this regard on the application made for the renewal of the same by petitioner No. 1 as an occupier. The two petitioners have, therefore, made the writ application under Art. 226 of the Constitution of India for issue of a writ in the nature of certiorari quashing the orders communicated in the letters issued by opposite party No. 1 on 19-11-1956, marked as annexure "D" to the application and on 6-12-1956, marked as annexure "F" to the application and for issue of a writ in the nature of mandamus commanding opposite party No. 1 to renew the licence in the name of petitioner No. 1. There is also a prayer for issuing a writ in the nature of mandamus prohibiting the opposite parties from taking or causing to take steps for prosecution of petitioner No. 1 or of any of the Directors or officers of petitioner No. 2, but it has not been pressed. The opposite parties are : 1. the Chief Inspector of Factories, Bihar, Ranchi, 2. the Inspector of Factories, Patna Circle, Patna, and

(3.) the State of Bihar. Cause has been shown by the opposite parties by filing a counter affidavit sworn by the Inspector of Factories, Labour Department, Patna Circle, Patna. 3. In January, 1956, Sri Badriram, Inspector of Factories, inspected the Digha Factory and made a written report alleging non-compliance with the provisions of law relating to various matters. On 17-4-1956, three complaints were filed by him against Mr. J.D. Mackenzie, Manager of Factory, and Mr, J.F. Bartos, the Managing Director of the Company. Cognizance was taken, and the three cases were transferred to the file of Mr. Nazir Ahmed, Magistrate, First Class. The numbers of the above cases are : (1) case No. 151(2)/56 -------------------------------------------------------------------------------- 29 Tr. , (2) case No. 152(2)/56 -------------------------------------------------------------------------------- 130 Tr. , and (3) case No. 153(2)/56. -------------------------------------------------------------------------------- 131 Tr. Mr. Mackenzie appeared in all these cases and was released on P. R. bond. But Mr. Bartos filed three criminal revisions, being criminal revision Nos. 147, 148 and 149 of 1956, before the Sessions Judge of Patna on 29-6-1956, for making a reference to the High Court for quashing the proceedings as against him. The learned Sessions Judge of Patna allowed the above criminal revisions and has made recommendation to this Court that the three criminal trials against Mr. Bartos be quashed. This is criminal reference No. 129 of 1956. In April, 1956, the said Inspector of Factories, Sri Badriram, again inspected the Digha Factory and made a report alleging contravention of various sections of the Factories Act with regard to the over-time working of some of the workers. He, therefore, filed three complaints on 28-5-1956, before the Sub-Divisional Officer of Patna against Mr. J.D. Mackenzie, the manager of the Factory, and Mr. J.F. Bartos, the Managing Director of the Company. Cognizance was taken of the three cases and they were transferred to the tile of Mr. B. N. Tewari, Magistrate, First Class. The numbers of these cases are: (1) 29(2)/56, -------- 70 Tr. (2)35(2)/56 and (3) 36(2)/56, Mr.Mackenzie ------- ------- 76 Tr. 77 Tr. appeared in all these cases and was released on furnishing P. R. bond. Mr. Bartos, however, again moved three revision applications before the Sessions Judge of Patna in March, 1957, for making a reference to the High Court for quashing the trials as against him. They are criminal revision Nos. 43, 44 and 45 of 1957. The learned First Additional Sessions Judge allowed these revision applications on 6-4-1957, and made a recommendation to this Court for quashing of the trials against Mr. Bartos in the three cases. This is criminal reference No. 76 of 1957.