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inder Sen Roy Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 24 and 166 of 1973
Judge
Reported in(1975)ILLJ359Bom
ActsFactories Act 1948 - Sections 2, 6, 7, 92, 93, 94, 100, 100(1), 100(2), 101, 112 and 113
Appellantinder Sen Roy
RespondentState of Maharashtra
Excerpt:
(i) labour and industrial - liability for offence - sections 100, 100 (1) and 100 (2) of factories act, 1948 - a share-holder in case of private company liable for any offence for which an occupier is punishable under act - in public company only director is liable to be prosecuted and punished for any offence for which an occupier is punishable under act - word 'company' used in section 100 (2) means 'public company' and does not include private company. (ii) occupier - section 101 of factories act, 1948 - no occupier can be prosecuted and shall be discharged from any liability under act in respect of offence he is charged - exemption is available to an occupier only and not for a share-holder treated as an occupier as against another share-holder - exemption is available to every.....1. one jalan dyeing and bleaching mills (hereinafter referred to as 'the mills') is a factory registered under the factory act, 1948 (hereinafter referred to as 'the act'), situated at fergusson road, lower parel, in the city of bombay. the bharat barrel and drum manufacturing company private limited (hereinafter referred to as 'the company') is the occupier of the said factory. respondents nos. 1 and 2 in criminal appeal no. 166 of 1973 (original accused nos. 1 and 2) are the share-holders of the said company, and the appellant in criminal appeal no. 24 of 1973 (original accused no. 3) is the director of the said company. it is common ground that accused no. 3 is not the share-holder of the company. it is alleged that on 22nd september, 1971, the inspector of factories (original.....
Judgment:

1. One Jalan Dyeing and Bleaching Mills (hereinafter referred to as 'the Mills') is a factory registered under the Factory Act, 1948 (hereinafter referred to as 'the Act'), situated at Fergusson Road, Lower Parel, in the City of Bombay. The Bharat Barrel and Drum Manufacturing Company Private Limited (hereinafter referred to as 'the company') is the occupier of the said factory. Respondents Nos. 1 and 2 in Criminal Appeal No. 166 of 1973 (original accused Nos. 1 and 2) are the share-holders of the said company, and the appellant in Criminal Appeal No. 24 of 1973 (original accused No. 3) is the Director of the said company. It is common ground that accused No. 3 is not the share-holder of the company. It is alleged that on 22nd September, 1971, the Inspector of Factories (original complainant) visited the factory and found that a number of workers were taking their meals on the premises where they are required to work. The complainant, therefore, made enquiries and came to know that no lunch room of adequate dimensions for the use of the workers was provided in the factory, as required by Rule 86 of the Maharashtra Factories Rules, 1963 (hereinafter referred to as 'the Rules') framed under the Act. The complainant, therefore, alleged that all the three accused persons contravened the provisions of Rules 86 of the Rules in not providing a lunch room for the workers in the factory and thereby they committed an offence punishable under S. 92 of the Act. Accused Nos. 1 and 2 admittedly are the share-holders of the company and the complainant prosecuted them treating them as occupiers in view of the provisions of S. 100 of the Act, and accused No. 3 is joined with them as co-accused because he has been named as occupier of the factory in form No. 3 for renewal of licence for the year 1972 and has signed the same from as Director for the occupier of the company.

2. All the three accused pleaded not guilty to the charge. Accused Nos. 1 and 2 admitted that they were the share-holder of the company who were the proprietors of the mills. However, both of them contended that they were not the occupiers of the factory and that they did not know if no lunch room was provided for the workers of the factory. They, therefore, denied to have committed any offence. Accused No. 3 admitted that he was the Director of the company who was the proprietor of the mills and that he was the occupier of the factory of the mills. He also admitted that he had signed certain correspondence (vide Exts. D and F) as an occupier and that there was no lunch room provided for the workers in the factory of the mills. He, however, contended that the Municipal Corporation did not permit them to construct any lunch room and hence they could not be provided any. He, therefore, denied to have committed any offence. He alleged that the complainant, who is the Senior Inspector of Factories, and also one Mr. Krishnan, another inspector, had objected to his being an occupier and refused to accept his nomination. On that ground also, he contended that he was not liable to be prosecuted.

3. The learned Presidency Magistrate, on consideration of the evidence and after construing S. 100 of the Act, came to the conclusion that accused Nos. 1 and 2 being shareholders could not be occupiers and, therefore, they were not liable to be prosecuted. As regards accused No. 3, he came to the conclusion that he being a Director, was an occupier, and though his nomination was not accepted by the complainant, still he being validly nominated under S. 100 of the Act, he was liable to be prosecuted and punished. Accordingly, he acquitted accused Nos. 1 and 2 and convicted accused No. 3 for the offence punishable under S. 92 of the Act read with Rule 86 of the Rules and sentenced him to pay a fine of Rs. 200 or in default to suffer simple imprisonment for 15 days. Being aggrieved by this order of conviction and sentence, accused No. 2 has filed Criminal Appeal No. 24 of 1973 and the State has filed Criminal Appeal No. 166 of 1973 against the order of acquittal of accused Nos. 1 and 2.

4. It is common ground that the factory has not provided for a lunch room in accordance with Rule 86 of the Rules and that, therefore, the occupier of the factory, who-so ever he may be, is liable to be prosecuted and punished for the contravention of Rule 86 of the Rules read with S. 92 of the Act. Likewise, there is no dispute in these appeals that accused Nos. 1 and 2 are the shareholders of the company, while accused No. 3 is only a Director who does not hold any share of the company. In view of these admitted facts, the question that is agitated before me by the learned Assistant Government Pleader Mr. Raja Bhonsale, appearing on behalf of the State, whether accused Nos. 1 and 2 are the occupiers within the meaning of that word used in S. 92 of the Act-Section 92 of the Act provides for general penalty for offences and it reads thus :

'92. Save as is otherwise expressly provided in this Act and subject to the provisions of S. 93, if in, or respect of any factory there is any contravention of any of the provisions of this Act or of any rule made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to seventy five rupees for each day on which the contravention is so continued.'

The word 'occupier' is defined by S. 2(n) of the Act. It says that 'occupier' of a factory means 'the person the who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory'. However, for the purpose of Chapter X of the Act which provides for penalties and procedure, we have S. 100 in that Chapter which provides for determination of occupier in certain cases. It runs thus :

'100. (1) Where the occupier of a factory is a firm or other association of individuals, any one of the individual partners or members thereof may be prosecuted and punished under this chapter for any offence for which the occupier of the factory is punishable :

Provided that the firm or association may give notice to the Inspector that it has nominated one of its members, residing within India to be the occupier of the factory for the purposes of this Chapter, and such individual shall, so long as he is so resident, be deemed to be the occupier of the factory for the purposes of this Chapter, until further notice cancelling his nomination is received by the Inspector or until he ceases to be a partner or member of the firm or association. (2) Where the occupier of a factory is a company, any one of the directors thereof or in the case of private company, any one of the shareholders thereof, may be prosecuted and punished under this Chapter for any offence for which the occupier of the factory is punishable :

Provided that the company may give notice to the Inspector that it has nominated a Director or in the case of a private company, a share-holder, who is resident in either case within India, to be the occupier of the factory, for the purpose of this chapter, and such director or share-holder, as the case may be, shall, so long as he is so resident, be deemed to be the occupier of the factory for the purpose of this Chapter until further notice cancelling his nomination is received by the Inspector or until he ceases to be a director or share-holder. (3) Where the owner of any premises or building referred to in S. 93 is not an individual, the provisions of this section shall apply to such owner as they apply to occupiers of factories who are not individuals.

We are not concerned in this case with provisions of sub-s. (1) of S. 100. Sub-section (2) of this section provides for determining an occupier whenever the occupier of a factory is either a public company or a private company. The proviso to this sub-section enables the company to give notice to the Inspector that it has nominated a particular person as an occupier, in which case the occupier so nominated shall be the occupier of the factory for the purpose of Chapter X of the Act, which provides for penalties and procedure. I have already pointed out that the Jalan Dyeing and Bleaching Mills is a factory of which the Bharat Barrel and Drum Manufacturing Company Private Limited is an occupier. Now, according to the complainant, accused No. 3, though he is a Director, cannot be nominated as an occupier because he is not a share-holder. His nomination, therefore, could not be accepted by the complainant in view of the provisions of S. 100 of the Act, because, according to him, in the case of a private company only, a share-holder can be nominated in view of the proviso to sub-s. (2) of S. 100. It is only in the case of a public company that the proviso enables such a company to nominate a Director as an occupier. The defence, however, is that in the case of both a public company as well as a private company, the proviso to sub-s. (2) of S. 100. enables the company to nominate a director, and if the company happens to be a private company, then in such a case a company is also given liberty to nominate a share-holder. In other words, according to the defence an option is given to a private company either to nominate a director or a share-holder, while in the case of a public company there is no such option available inasmuch as it can nominate only a director. The complainant, therefore, so the learned counsel Mr. Bhalchandra Mehta, appearing on behalf of the defence, submits, was bound to accept the nomination of accused No. 3 in this case, whether or not he was a share-holder of the company.

5. In support of his argument, the learned Assistant Government Pleader Mr. Raja Bhonsale relies on the words 'or in the case of a private company; a share-holder', while in support of his contention the learned counsel Mr. Bhalchandra Mehta relies on the word 'company' used in sub-s. (2) of S. 100, which according to him, means not only public company but also includes private company. If, therefore, the word 'company' is either a public company or a private company and if an option is given to a private company either to nominate a director or a share-holder under the proviso to sub-s. (2) of S. 100, accused Nos. 1 and 2 cannot be prosecuted and punished, only accused No. 3 can be prosecuted and punished. If on the other hand, the word 'company' means only a public company and does not include private company, then the nomination of accused No. 3 who is only a director and not a share-holder by the company in the present case as an occupier would be obviously invalid and the complainant would be justified in rejecting it. In such a case, therefore, in the absence of any nomination in pursuance to the proviso to sub-s. (2) of S. 100 share-holders will be liable to be prosecuted and punished. The question, therefore, that falls for determination in this case is regarding the correct interpretation of the word 'company' used in sub-s. (2) of S. 100.

6. The word 'company' is nowhere defined in the Act for the purposes of the Act. The important clause in sub-s. (2) for the purpose of understanding the true meaning of the word 'company' is 'where the occupier of a factory is a company, any one of the directors thereof or in the case of a private company, any one of the share-holders thereof'. Similarly, in the proviso to sub-s. (2) also the important clause is 'provides that the company may give notice to the Inspector that it has nominated a director, or in the case of a private company, a share-holder,' Now, it cannot be disputed that the word 'company' is a general word which includes private company. Now, one of the rules of interpretation is where a statute uses two words or expressions, one of which generally includes the other, the more general terms is taken in a sense excluding the less general one; otherwise there would have been little point in using the latter as well as the former. (vide Maxwell on the Interpretation of Statutes, 12th edition, at page 293). Applying this rule, it becomes at once clear that unless the Legislature intended to exclude private company from the word 'company', there was no point in using the words 'private company' as well as the word 'company' in one and the same clause. When, therefore, sub-s. (2) of S. 100 says that where the occupier of a factory is a company, any one of the directors thereof is a company, any one of company, any one of the share-holders thereof, may be prosecuted and punished, it means that where the occupier of a factory is a public company, any one of the directors thereof may be prosecuted and punished, and where the occupier of a factory is a private company, any one of the share-holders thereof can be prosecuted and punished.

7. Secondly, the word 'or' used in sub-s. (2) both in the substantive part as well as in the proviso is disjunctive and there is no indication is S. 100 to say that it is used in any other sense. If, therefore, the word 'or' is understood in its ordinary disjunctive sense, the substantive part of sub-s. (2) of S. 100 of the Act would read thus :

'Where the occupier of a factory is a company, any one of the directors thereof may be prosecuted and punished under this Chapter for any offence for which the occupier of the factory is punishable; or where the occupier of a factory is a private company (in the case of private company), any one of the share-holders thereof may be prosecuted and punished under this Chapter for any offence for which the occupier of the factory is punishable.'

It is true that sometimes the word 'or' may mean 'and' but surely this is not a case where 'or' can be interpreted to mean 'and', apart from the fact that it does not improve the situation. Ordinarily, where the word 'or' is used in relation to two or more alternatives, these alternatives are mutually exclusive, though it is not necessarily so. The question as to whether they are mutually exclusive or not must be determined by applying the general rule that words should be construed to ascertain the intention of the provision in question to be collected from the whole of its term. I shall later on show that the intention of the Legislature in enacting S. 100 of the Act appears to to be that in the case of a public company alone, a director can be prosecuted and punished while in the case of a private company, it is only the share-holders who can be prosecuted and punished. This intention becomes absolutely clear if the word 'or' used in sub-s. (2) of S. 100 is understood in its ordinary sense, viz., in the sense of the word being disjunctive. Moreover, it is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modifide, so as to avoid such inconvenience, but no further (vide Maxwell on the Interpretation of statutes, 12th edition, at pate 43). In my opinion, therefore, if the word 'or' used in sub-s. (2) of S. 100 is understood in its ordinary disjunctive sense, the sub-section becomes quite clear.

8. Thirdly, if the word 'company' is interpreted to mean private company also, the result in the case of private company would be that the words 'in the case of private company' both in substantive part as well as in the proviso would become redundant, because in such a case S. 100(2) would read thus :

'where the occupier of a factory is a private company (company interpreted to mean private company also) any one of the directors thereof or in the case of private company, any one of the share-holders thereof, may be prosecuted and punished ..... Provided that the private company ('company' interpreted to mean private company also), may give notice to the Inspector that it has nominated a director, or in the case of a private company, a share-holder, who is resident in either case within India, to be the occupier of the factory for the purposes of this Chapter, and such director or share-holder as the case may be, shall ...... share-holder.'

Obviously, therefore, the words in the case of private company are redundant. It is needless to say that every portion of a statute must be given effect to and unless the construction leads to an absurdity, no portion of a statute should be deemed to be redundant. It is clear law that a construction which would attribute redundancy to a Legislature should not be accepted except for compelling reasons. It is also not permissible to omit any part of its provision to ascertain the meaning of a selection. The whole section must be read together and an attempt should be made to reconcile both the parts of a section or a sub-section. If a section is susceptible to two interpretations, that interpretation should be rejected which would render some of the words in the enactment superfluous.

9. There is also another aspect. If the word 'company' is interpreted to mean both private as well as public company, it would mean that sub-s. (2) of S. 100 enables the prosecuting agency to prosecute directors or share-holders of a public company and only share-holders of a private company in the absence of nominations and gives option to private company only, to nominate either a director or share-holder as occupier, while a public company can nominate only a director and not a share-holder as occupier. Now, apart from the fact that there are no words in sub-s. (2) of S. 100 indicating that in the case of a private company, an option is given either to nominate a director or a share-holder, the question is whether in 1948 when the Act was first enacted, it could be the intention of the Legislature that in the case of a private company, a director could be an occupier or could be nominated as such and, therefore, could be prosecuted and punished. In this connection, I may refer to S. 83A of the Indian Companies Act, 1913, as it stood at the time the Act came into force in 1948. It reads thus :

'83A. (1) Even company shall have at least three directors.

(2) This section shall not apply to a private company except a private company being a subsidiary company of a public company.'

It is common ground in this case that the company in the instant case, which is a private limited company, is not a subsidiary company of any public company. It is, therefore, obvious that there was no obligation on private companies to have directors. If that is so, it is impossible that the Legislature may have thought of enabling a private company to have director as occupier of a factory under the Act or to have him prosecuted and punished in case there was any contravention of the Act or Rules by a private company. In my opinion, therefore, this is another reason why I am inclined to hold the word 'company' used in S. 100(2) of the Act means only a public company and excludes a private company. It is true that under the Companies Act, 1956, it is now obligatory on the private companies to appoint directors, and it may be now enough to prosecute and punish directors in case of private companies and not make share-holders liable for such prosecutions. But I am interpreting S. 100(2) of the Act as it stands today and as it stood before 1956. It is for the Legislature, if it thinks proper to suitably amends S. 100 of the Act to enable the private companies to nominate only directors and make directors liable for punishment as occupiers in view of the Companies Act, 1956.

10. Fourthly, could it be then the intention of the Legislature to have either directors or share-holders in the case of a private company to be prosecuted and punished under chapter X of the Act for any offence for which the occupier of a factory is punishable Similarly, could it be the intention under the proviso to sub-s. (2) of S. 100 to have either a director or a share-holder to be nominated as an occupier in the case of a private company. I have already pointed out that under the Indian Companies Act, 1913, appointment of directors was not obligatory in the case of a private company. Secondly, no apparent reason is pointed out to me on behalf of the defence why either directors or share-holders need be prosecuted and punished or need be nominated under the proviso in the case of a private company. If in the case of a private company, a share holder can be prosecuted and punished under Chapter X of the Act for any offence for which an occupier is punishable under the Act, I am unable to discover any reason why in addition to such a share-holder, a director, if any, of such a private company, also need be prosecuted and punished. The plain object S. 100 of the Act is to ensure that no lacuna remains in the application of the provisions in the Act to occupiers of factories in the cases where the factories are occupied not by individuals but by firms, associations or public companies or private companies. It provides that where the occupier of the factory is a firm or other association of individuals, any one of the partners of the firm or members of the association may be punished. Where the occupier is a public company, any one of the directors may be prosecuted any punished. If that is so, if the occupier is a private company it is enough to prosecute and punish any one of the share-holders and not any directors particularly when the Act was enacted, there was no obligation on a private company to appoint a director. It seems to me, therefore, that the intention of the Legislature in enacting S. 100 is to make a director in the case of a public company, and a share-holder in the case of a private company liable for any offence for which an occupier is punishable under the Act. Similarly, the intention behind the proviso also seems to me to be to enable a public company to nominate any one of its directors as an occupier, and in the case of a private company, a share-holder, so that such a nominated director or share-holder, as the case may be, would be deemed to be an occupier for the purpose of Chapter X.

11. In this connection, a reference to S. 76 of the Mines Act, 1952, as it stood before it was substituted by S. 41 of the amending Act No. 62 of 1959, which came into force on 16th January, 1960, would be necessary. That section, as it stood then, reads thus :

'76. Determination of owner in certain cases : Where the owner of a mine is firm or other association of individuals, any one of the partners or members thereof or where the owner of a mine is a public company, any one of the directors thereof or where the owner of a mine is a private company, any one of the share-holders thereof, may be prosecuted and punished under this Act for any offence for which the owner of a mine is punishable. Provided that where a firm, association or company has given notice in writing to the Chief Inspector that it has nominated,

(a) in the case of a firm, any of its partners,

(b) in the case of an association, any of its members,

(c) in the case of a private company, any one of its share-holders,

who is a resident in each case in any place to which this Act extends to assume the responsibilities of the owner of the mine for the purpose of this Act, such partner, member, director or share-holder as the case may be, shall so long as he continues to be the owner of the mine for the purpose of this Act, unless notice in writing cancelling his nomination or stating that he has ceased to be a partner, member, director or share-holder as the case may be, is received by the Chief Inspector.'

There is hardly any difference between S. 100 of the Act and the old S. 76 of Mines Act, 1952, except that whereas in the case of a factory, the Act is concerned with an occupier, in the case of a mine, the Mines Act, 1952, speaks of an owner. A careful perusal of S. 76 of the Mines Act, 1952, would reveal that in the case of a public company, only a director can be prosecuted and nominated as an owner, while in the case of a private company, only a share-holder can be prosecuted and nominated as an owner. The Mines Act, 1952, does not enable a private company to nominate a director as an owner. It was only after this old S. 76 came to be substituted by the new S. 76 by virtue of S. 41 of the amending Act No. 62 of 1959, that we find that the distinction between a public company and a private company is removed for the purpose of determination of the owner of mines in certain cases, and we find that all or any of the directors of a company, whether a private company or a public company, is made liable for any offence for which the owner of a mine is punishable. Likewise, the proviso to S. 76 also enables a company, whether a public company or a private company, to nominated its directors as owners for the purposes of the Mines Act, 1952. It should be noticed here that this amendment came to be made after the Companies Act, 1956, came into force on 1st April, 1956. The companies Act, 1956, makes it obligatory on every company other than a public company to have at least two directors (vide S. 252(2) of the Companies Act 1956). Considering, therefore, the provisions of S. 76 of the Mines Act, 1952, before and after its amendment, which is in pari materia with the provisions of S. 100 of the Act, the intention of the Legislature in enacting S. 100 of the Act appears to be to make only a share-holder in the case of a private company liable for any offence for which an occupier is punishable under the Act, while in the case of a public company, it is only a director who is made liable to be prosecuted and punished for any offence for which an occupier is punishable under the Act.

12. There is also a third aspect of this question and it is this that form No. 2 prescribed by the State Government under Rules 5 and 14 of the Rules also lends support to what I have stated above. Rule 5 is for application for registration and grant of licence. Rule 14 provides for notice of occupation which is required to be in form No. 2. This form is prescribed for the purposes of both Rule 5 and Rule 14. Form No. 2 is for application for registration and notice of occupation specified in Ss. 6 and 7 of the Act. Item No. 10 of this form requires full name and residential address of the occupier, and sub-item (ii) and sub-item (iv) of this item No. 10 require full name and residential address of the occupier 'directors in case of public limited liability company firm' and 'share-holders in case of a private company.' What is material to be noticed about this form is that there is no column for the full name and residential address of any of the directors of a private company as an occupier. If the interpretation sought to be put on sub-s. (2) of S. 100 of the Act by the learned counsel Mr. Bhalchandra Mehta is correct, one would have expected a column for the full name and residential address of directors in case of a private company as an occupier of a factory. It is true that this form is prescribed by the Maharashtra State inasmuch as the Rules are framed by the State in view of the provisions of S. 112 of the Act. It is also true that S. 113 of the Act, enables the Central Government to issue directions. But we have nothing on the record beyond the oral statement of the learned Assistant Government Pleader at Bar that any directions were issued by the Central Government in connection with the rules framed by the State Government. The learned counsel Mr. Bhalchandra Mehta, therefore, argued that after all these rules framed by the State Government only show how the provisions of the Act including S. 100 were understood by the State Government. There is no provision in the Act to place the rules either before the Parliament or before the State Legislature before they became law. That is so. But all that I want to point out by relying on form No. 2 is that this form also supports the view I have taken above.

13. Lastly, I may refer to one of the arguments advanced by the Learned Assistant Government Pleader Mr. Raja Bhonsale. He drew my attention to S. 94 of the Act which provides for enhanced penalty after previous conviction, and has submitted that if S. 100(2) is interpreted to mean that in the case of a private company either a director or a share-holder can be prosecuted and punished, and a private company can nominate a director, then there can be hardly a case in which a share-holder of a private company can be prosecuted and punished. In almost every case of a private company, share-holders can escape prosecution and punishment for an offence for which an occupier is punishable under the Act by appointing any person and designating him as director who is not a share-holder. I think that there is some substance in this submissions, particularly because, as I have already pointed out, before the Companies Act. 1956, came into force, there could be no obligation on a private company to have any director under the Indian Companies Act, 1913.

14. In my opinion, therefore, considering the structure of S. 100, particularly sub-s. (2), and the intention of the Legislature. I am inclined to hold that the 'company' used in sub-s. (2) of S. 100 of the Act means 'public company' and does not include private company. Accused No. 3, therefore, could not be the occupier for the purpose of Chapter X of the Act, much less he could be prosecuted and punished for the contravention of Rule 86 of the Rules. The nomination of accused No. 3 under the proviso to sub-s. (2) of S. 100 of the Act, therefore, is invalid. Accused Nos. 1 and 2, who are the share-holders of the company, therefore, could alone be prosecuted and punished in the instant case.

15. The question then arises whether both accused Nos. 1 and 2 who are share-holders can be prosecuted and punished or only one of them can be prosecuted and punished for the contravention of Rule 86 of the Rules read with S. 92 of the Act. In this connection, the learned Assistant Government Pleader Mr. Raja Bhonsale has relied upon the words 'any one of the directors thereof or in the case of private company, any one of the share-holders thereof', and has argued that the words 'any one' in this clause mean each one or every one and, therefore, according to his submission, both accused Nos. 1 and 2 who are admittedly the share-holders of the company can be prosecuted and punished, while the learned counsel Mr. Bhalchandra Mehta has argued that the words 'any one' necessarily mean only one and not all. In support of his argument, the learned Assistant Government Pleader has relied upon Chief Inspector of Mines v. K. C. Thaper, : (1961)IILLJ146SC , while the learned counsel Mr. Bhalchandra Mehta relied upon the decision of Allahabad High Court in Hari Krishna and another v. State of Uttar Pradesh, : (1960)ILLJ42All . In : (1961)IILLJ146SC , Their Lordships of the Supreme Court were considering the same words 'any one' used in S. 76 of the Mines Act, 1952, to which I have already made a reference. Their Lordships have observed that expression 'any one of the directors' used in S. 76 is ambiguous; in some contexts, it means 'only one of the directors, does not matter which one,' but in other contexts, it is capable of meaning 'every one of the directors.' Which of these two meanings was intended by the Legislature in any particular statutory phrase has to be decided by the Courts on a consideration on the context in which the words appear, and in particular, the Scheme and object of the legislation. On consideration of the Scheme and the object of the Mines Act, 1952, Their Lordships held that when it is found that the Legislature uses the words which are capable of meaning 'all the directors, all the members, all the share-holders and all the partners', as also the other meaning 'only one of the Directors, only one of the partners, only one of the members, only one of the share-holders', there is no doubt at all that the Legislature used the words in the former and not in the latter sense. They, therefore, held that the words 'any one of the directors' used in S. 76 of the Mines Act, 1952, must, therefore, be held to mean every one of the directors. Now, S. 100 of the Act is in pari materia with S. 76 of the Mines Act, 1952, as it stood before the amendment of 1959. Now, the Mines Act, 1952, is a later Act and the Factories Act, 1948, is an earlier Act. How far one may look at a later statute is questionable. But I think that where the provisions of the later Act could only operate indirectly as an aid to the construction of words in the earlier Act, such provisions of the later Act can be used for the purpose of construction of the words used in the earlier Act. If an Act of Parliament uses the same language in the later Act which it has used in an earlier Act referred to the same subject and used for the same purpose and for the same object, it is safe and well-known rule of construction to assume that when the Parliament used the same words in the later Act on the same subject and for the same purpose keeping in view the same object, such words were used in the same sense in which they were used in the later Act. Moreover, so far as S. 76 of the Mines Act, 1952 is concerned, it appears from the subsequent amendment, by which S. 76 was substituted by the amending Act No. 62 of 1959, that by using the words 'any one of the directors' in the old S. 76, the Parliament intended to mean all the directors, because in the substituted S. 76 after the amendment we find this intention made very clear by use of the words 'all or any of the directors thereof' in the substantive part of the substituted S. 76. The substituted S. 76 came into force on 16th January, 1960 and Their Lordships of the Supreme Court gave their interpretation on 10th February, 1961. I, therefore, do not see any difficulty in accepting the submission of the learned Assistant Government Pleader that in the instant case, both accused Nos. 1 and 2 who are the share-holders can be prosecuted and punished because the words 'any one' used in sub-s. (2) of S. 100 of the Act would mean 'each one and every one of the share-holders.' As regards the decision of the Allahabad High Court relied upon by the learned counsel, Mr. Bhalchandra Mehta it is no doubt true that this decision directly relates to the interpretation of S. 100 of the Act, with which we are concerned in this case. But in view of what I have observed above, and the decision of the Supreme Court by which I am respectfully bound, I cannot accept the interpretation but the learned single Judge of the Allahabad High School on S. 100 of the Act. The learned counsel for the defence then pointed out that such an interpretation would result into a hardship to all the share-holders where one share-holder can be prosecuted and punished for the contravention of the Act or the Rules. The learned Assistant Government Pleader has replied to this argument by drawing my attention to S. 101 of the Act. Section 101 provides for exemption of occupier or manager from liability in certain cases. So far as it is relevant here, it says that where the occupier of a factory is charged with an offence punishable under the Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear days' notice in writing of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier of the factory proves to the satisfaction of the Court that he has used due diligence to enforce the execution of the Act and that the said other person committed the offence in question without his knowledge, consent or conveyance, that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier of the factory. In such a case, the occupier who is prosecuted shall be discharged from any liability under the Act in respect of the offence with which he is charged. The learned counsel, Mr. Bhalchandra Mehta submitted that this exemption is available to an occupier as against a manager and not for one share-holder treated as an occupier as against another share-holder. Considering the words 'to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge.' I think that this exemption is available to every share-holder or a director who is brought before the Court as an occupier. He can point out that some other direct or share-holder who was under the control of the factory has committed the offence and he himself has used due diligence to enforce the execution of the Act. That being the position, I think that there is some force in the submission made by the learned Assistant Government Pleader relying on S. 101 of the Act. At any rate, in view of the interpretation I have put relying on the decision of the Supreme Court cited above, in my opinion, both the accused Nos. 1 and 2 are liable to be prosecuted and punished.

16. The result, therefore, is that accused No. 3, who is the appellant in Criminal Appeal No. 24 of 1973, is entitled to an acquittal, while the respondents (Original accused Nos. 1 and 2) in the State Appeal being Criminal Appeal No. 166 of 1973, are liable to be convicted for the offence of contravention of Rules 86 of the Rules read with S. 92 of the Act.

17. As regards sentence, I think that a sentence to pay a fine of Rs. 200 each or in default to undergo simple imprisonment for one month would be sufficient to meet the ends of justice. I, therefore, pass the following order :

18. Criminal Appeal No. 24 of 1973 is allowed. The order of conviction and sentence passed by the lower Court against the appellant (original accused No. 3) is hereby set aside and he is acquitted. Fine, if paid, may be refunded.

19. Criminal Appeal No. 166 of 1973 filed by the State is allowed. The order of acquittal passed by the lower Court in favour of the respondent (original accused Nos. 1 and 2) is hereby set aside and the respondents (original accused Nos. 1 and 2) are here by convicted for the offence punishable under S. 92 of the Factories Act, 1948, read with Rule 86 of the Maharashtra Factories Rules, 1963, and each of them is hereby sentenced to pay a fine of Rs. 200 or in default to undergo simple imprisonment for one month. Each of the respondents is granted one week's time to pay the fine.

20. The learned counsel Mr. Bhalchandra Mehta made oral application for leave to appeal to the Supreme Court and for issuing fitness certificate. I do not think that this is a fit case which need go to the Supreme Court under Art. 134 of the Constitution of India. The Application, therefore, is rejected.


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