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State Vs. Nagindas Maganlal - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 1220 of 1956 and 144 of 1957
Judge
Reported inAIR1958Bom162; (1957)59BOMLR652; 1958CriLJ493; ILR1957Bom858
ActsFactories Act, 1948 - Sections 2, 62, 62(1), 63 and 92
AppellantState
RespondentNagindas Maganlal
Appellant AdvocateV.H. Gumaste, Addl. Asst. Govt. Pleader
Respondent AdvocateV.S. Desai, Adv.
Excerpt:
.....but tested for fitness to do work in factory--names of such persons not entered in register of adult workers during period of test--whether offence under section 62(1)(a) read with section 92 committed by manager of factory--point of time when entry of name of person required under section 62(1)(a)--meaning of expression 'the entries made beforehand against his name' in section 63.;the occupier and manager of a factory was charged, on a complaint made by the inspector of factories, with having committed an offence under section 62(1)(a) read with section 92 of the factories act, 1948, for permitting certain persons to work in the factory without entering their names in the register for adult workers. it was found that these persons were not accepted as workers in a manufacturing..........the abovementioned persons to work in the factory without entering their names in the register for adult workers. it may be noted that the names of raoji zina and mahomed hussein karimulla were subsequently entered in the register, but they were not found entered when the inspector inspected the register. the non-entry of the name of raoji zina gave rise to criminal case no. 598 of 1956 from which appeal no. 1220 of 1956 has arisen and the non-entry of the name of mahomed hussein karimulla gave rise to criminal case no. 553 of 1956 from which appeal no. 144 of 1957 has arisen. the state has filed these appeals as the learned magistrate, upon the trial of the respondent under section 62(1)(a) read with section 92 of the act, acquitted him of the said charge.2. the learned magistrate has.....
Judgment:

Vyas, J.

1. These are acquittal appeals by the State and they raise a question of construction of Section 62 of the Factories Act 63 of 1948. The question has arisen in this way. On 9th December 1956 Shri J.G.H. Modi, Inspector of Factories, visited C. N. Weaving Works at Surat at 5-15 p.m. and he noticed that certain two persons Raoji Zina and Mahomed Hussein Karimulla were working in the factory, although on inspection of the register for workers it was found that their names were not entered in the register. The State contends that the occupier and the manager of the factory committed an offence under Section 62(1)(a) read with Section 92 of the Factories Act by permitting the abovementioned persons to work in the factory without entering their names in the register for adult workers. It may be noted that the names of Raoji Zina and Mahomed Hussein Karimulla were subsequently entered in the register, but they were not found entered when the Inspector inspected the register. The non-entry of the name of Raoji Zina gave rise to criminal case No. 598 of 1956 from which appeal No. 1220 of 1956 has arisen and the non-entry of the name of Mahomed Hussein Karimulla gave rise to criminal case No. 553 of 1956 from which appeal No. 144 of 1957 has arisen. The State has filed these appeals as the learned Magistrate, upon the trial of the respondent under Section 62(1)(a) read with Section 92 of the Act, acquitted him of the said charge.

2. The learned Magistrate has taken the view that under Section 62, Sub-section (1) (a), of the Act, it is not obligatory upon the occupier and manager to enter in the register of adult workers, as soon as a shift starts, the name of every person who may be doing work in a factory. Upon the view taken by the learned Magistrate, the provisions of Section 62 would not be contravened if the management submitted a person to a test and accepted him for work thereafter if he was found satisfactory. The State contends that upon the reading of the section (Section 62), it would appear that the Legislature has cast an obligation upon the occupier and manager of factories to enter in the register of adult workers, at the commencement of the shift, the name of every adult person working in the factory. According to the State, if any adult person is allowed to work in the factory without his name having been entered in the register at the start of the shift, the provisions of Section 62 are contravened.

3. Now, the question whether by enacting Section 62 the Legislature intended to cast an obligation upon the occupier and manager of a factory to enter in the register of adult workers, as soon as the shift commenced, the names of the adults doing work in the factory or whether the entry of the names may be made later turns upon the construction of the expression 'adult workers' in Section 62. Does the word 'workers' in the expression 'adult workers' include persons who offer to do work as badlis in place of permanent or temporary workers and whose acceptance as workers by the management may depend upon their satisfying the test of their fitness to do the work? For the answer to this question, we must turn to the definition of 'worker' in Section 2, Clause (1) of the Act. Section 2, Clause (1) says what 'worker' means. Under the Act, the term 'worker' means a Person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing Process. Unless a person is actually employed in a manufacturing process, or in cleaning any part of the machinery or premises used for manufacturing process, or in any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process, he does not become a worker. The Act has cast a duty and responsibility upon the occupier and manager of factories to see that the machinery in a factory is not mishandled or wrongly or improperly handled by novices or inexperienced hands, so as to endanger life. Chapter IV of the Act contains provisions which are specially enacted by the Legislature for the safety of the workers and it is the duty of the occupier and manager of factories to see that nothing is done upon the premises of the factory which would imperil the safety of the workers. It is obligatory upon the management to see that only those persons, who know how to handle and work a particular machinery, are engaged in working the machinery which is used in a manufacturing process. It is the duty of the management to see that only those persons, who know how to clean the different parts of the machinery, are assigned that work. If the management were to assign the work connected with a manufacturing process to a person as soon as he puts in an appearance as a badli and if the said person does not know his job well enough, if he does not know how to do the work connected with a manufacturing process or connected with the cleaning of the different parts of the machinery, there might be danger to life, not only of that person, but of other persons also who might be working in the factory. It is, therefore, implicit in the scheme of the Act that before a person is employed to do work connected with a manufacturing process, or connect-ed with the cleaning of any part of the machinery, which is used for manufacturing process, the management should discharge its initial responsibility of ascertaining that the person concerned knows the work. It is only after that ascertainment and not till then, that the management of a factory ought to assign the work in connection with a manufacturing process or in connection with the cleaning of any part of the machinery or premises used for manufacturing process to a Person and it is only then, and not till then, that the person concerned becomes a worker under the Act. When he is accepted as a worker as defined under the Act, then only arises an obligation upon the management to enter his name in the register of workers. In these cases, upon the evidence on the record, there is no doubt that Raoji Zina and Mahomed Hussein Karimulla were not 'yet accepted as workers in a manufacturing process when the Inspector inspected the factory. They were being subjected to a test, as the chit produced by the supervisor would show. By this chit the supervisor was directed by the manager (respondent) to test Raoji Zina & Mahomed Hussein Karimulla and see whether they were fit to be put on the work connected with the manufacturing process. The chit was not subsequently got up by the respondent by way of a defence to these cases. It had been issued by him to the supervisor even before the Inspector visited fee factory.

4. When the Legislature intends to create a statutory offence, it states the essential constituent of the offence in words clear and unambiguous. We have no doubt that if the Legislature had intended that the non-entry in the register of adult workers, at the commencement of the shift, of the names of the adults working in a factory was to amount to an offence under the Act, specific words to that effect would have been used. It is significant to note that while enacting Section 62, the Legislature did not use words casting an obligation upon the management of the factories to enter the names at the commencement of the shift. It is clear, in our view, that in creating an offence under Section 62(1)(a) read with Section 92 of the Act, the legislature intended -that the constituent of the offence was the non-entry of the name of an adult worker in the register of workers. The constituent of this offence was not intended to have any relation to a particular point of time. The point of time when the entry of the name of a person is required to be made under Section 62(1)(a) is the point of time when the said person is accepted as a worker under the Act by the management of the factory. In the cases from which these appeals have arisen, Raoji Zina and Mahomed Hussein Karimulla were being tested when the Inspector of Factories visited the factory of the respondent and the object of the test was to decide whether they should be accepted as workers. That being so, the fact that the names of Raoji Zina and Mahomed Hussein Karimulla were not found entered in the register of adult workers when the Inspector visited the factory would not amount to a contravention of the provisions of Section 62, Sub-section (1), Clause (a) of the Act.

5. It may be contended that upon the construction which we are putting upon Section 62, a door would be left open to the occupier and manager of a factory to employ adult workers without entering their names in the register. We are not unmindful, of such a possibility. It appears that the safeguard against such a possibility would be to amend Section 2, Clause (1) of the Act so as to include even a badli -- a person who has to be tested before being taken up for employment -- in the definition of a 'worker'.

(6) Mr. Gumaste has invited our attention to the provisions of Section 63 of the Act, and Section 63 lays down:

'No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory.' Mr. Gumaste relies upon the words 'entries made before-hand against his name' in Section 63 and argues that, when the Legislature used these words, it intended to lay down that no adult was to be allowed to work in any factory unless his name was entered in the first instance in the register of adult workers of the factory. Mr. Gumaste's construction of Section 63 is not correct. All that Section 63 which follows Section 62 lays down is that once the name of an adult worker is entered in the register of adult workers under Section 62, that is to say, once the nature of his work is mentioned in the register, once the group if any in which he is included is also stated in the register, once the relay to which he is allotted, where his group works on shifts, is also stated in the register, then the worker concerned shall neither be required nor allowed to work otherwise than in accordance with the abovementioned entries made against his name, as provided by Section 62, Sub-section (1). In our view, the expression 'the entries made beforehand against his name' in Section 63 means 'the entries made under the provisions of Section 62, Sub-section (1), against his name.'

7. Upon the construction which we haveput upon Section 62, we are of the view that theorders of acquittal passed in favour of the respondent by the learned Magistrate are correctand these appeals must fail and be dismissed.

8. Appeals dismissed.


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