LOCAL GOVERNMENT Vs. NUSARWANJI

JUDGEMENT

(1.) THIS is an appeal by the local Government against the order of acquittal of the respondent Nusarwanji M. Hatiram, Manager of the Khamgaon Cotton Company Ginning and Pressing Factory. The respondent was tried for two offences punishable under Sections 41 (a) and 41 (b), Factories Act, and was convicted under Section 41 (a) and sentenced to a fine of Rs. 50. He was also convicted under Section 41 (n) of the Act for breach of Rule 35 of the Act and sentenced to a fine of Rs. 25. The Sessions Judge on appeal maintained the conviction under Section 41 (a), but reduced the fine to Rs. 25. He however set aside the conviction under Section 41 (h), holding that no offence had been ommitted. It is against this latter order that the local Government have preferred this appeal.

(2.) THE offence alleged against the respondent was that five men were working in the factory, though their names were not shown in the attendance register, which is a breach of Rule 35. The evidence shows that these men were engaged in putting the ginned cotton into what are called bojhas or akhas, and that they were engaged for that work not by the owner of the factory but by the merchants who owned the cotton. The Magistrate held that the filling of the cotton into bojhas within the compound of the factory was incidental to and connected with the manufacturing process, whilst the Sessions Judge has held, relying on Pragnarain v. Emperor AIR 1928 Lah 78 that aa soon as the cotton has been ginned and delivered to the owner, the manufacturing process was over and that Labourers engaged by the owners to fill the ginned cotton into bales and remove them could not be called employees, even though they did the work in the precincts of the factory The learned Standing Counsel who appeared for the Crown relied on Pragnarain v. Emperor AIR 1928 Lah 78 in support of the appeal, whilst, the learned Counsel who appeared for the respondent cited Superintendent and Remembrancer of Legal Affairs Bengal v. An rews, A. I. R. 1931 Cal. 669 and also cued Emperor v. Narayan Anant Desai AIR 1925 Bom 143 and Rameshwar Prasad v. Emperor AIR 1931 Nag 177 as authorities to show that penal status should be strictly interpreted. With this lust proposition I have no quarrel, but I am of opinion that, even on a strict interpretation of Section 2 (2) (d), Factories Act, the view taken by the Magistrate was correct and that taken by the Sessions Judge is wrong in the present case.

(3.) THE case in Superintendent and Remembrancer of Legal Affairs, Bengal v. Andrews, can also be distinguished as there the only question was whether volunteers among the factory employees who were not engaged at the time and who accompanied ice from the ice factory down to the docks on lorries, were doing work within the meaning of the Act. I think it is clear that such casual work was rightly not held to be work at the factory; but there is no analogy between such work and that of men employed to do regular labour, which was directly connected with the article made, in the present case, the ginned cotton. I would also point out that on the authority of Spacey v. Dowlais Gas and Coke Co. Ltd. (1905) 2 KB 879 the men going down on lorries to the docks were clearly not working in the factory. There are a number of English cases on this point, and I would refer to Fenn v. Miller (1900) 1 QB 788 Powell v. Brown (1899) 1 QB 157, Lowth v. Ibbotson (1899) 1 QB 1003 and Chambers v. Whitehaven Harbour Commissioner (1899) 2 QB 132.