1. This is an application in revision against the conviction of the applicant under Section 60(a)(iv) of the Factories Act, 1934, for leaving unfenced the hot water circulating tank in the Saraspur Mills in contravention of Rule 55 of the Bombay Factories Rules, 1935. The applicant is the manager of the Saraspur Mills, Ltd., Ahmedabad. On April 29, 1943, Mr. Kagal, Senior Inspector of Factories, Ahmedabad, visited that mill and discovered that the old wall which provided a fencing to the hot water circulating tank had been pulled down, and its place was taken by a wall of the newly built room of the Dyeing Department which was at a distance of about three or four feet from the old wall of the fence, and the space which was thus left open between the tank and the wall of the room of the Dyeing Department was used for storing articles required for the repairs of the nozzles in the hot water circulating tank. There was a window in the north-western corner of the wall of the room of the Dyeing Department, 3' 6' X 3' 6', which gave access to the edge of the tank from the Smithy Department. This amounted to a failure to provide secure fencing to the hot water circulating tank as required by Rule 55 of the Bombay Factories Rules, 1935. The Inspector, therefore, filed a complaint against the applicant. The applicant was tried by the First Class Magistrate, Ahmedabad, and a charge was framed against him under Section 60(a)(iii) of the Factories Act, 1934. It was contended before the learned Magistrate that Rule 55 of the Bombay Factories Rules, 1935, was ultra vires of the Provincial Government. But the learned Magistrate held that the Provincial Government had framed the rule under Section 32(g) of the Factories Act, 1934, and that the rule was not ultra vires. On this view, he convicted the applicant under Section 60(a)(iv), instead of under Section 60(a)(iii), of the Factories Act, under which he was charged, and sentenced him to a fine of Rs. 200.
2. The applicant appealed to the Sessions Court, and the learned Sessions Judge summarily dismissed the appeal with a remark that he had perused the order of the learned Magistrate and had fully considered the arguments of the appellant's learned advocate. From the memorandum of appeal it appears that various points of law were raised op behalf of the appellant, and it would have been better if the learned Sessions Judge had given his reasons for agreeing with the view taken by the learned Magistrate.
3. On the admitted facts, there is no doubt that the hot water circulating tank, which is 36' in depth and contains hot water, is dangerous to human life and safety, and under Rule 55 of the Bombay Factories Rules, 1935, it must be securely fenced. The learned Magistrate visited the tank and he has observed in his notes of inspection that the window or gap in the wall leading to the tank is so situated that if a person goes through the window on the side of the tank he would find himself about three feet away from the edge of the unfenced tank. It is said that there is some loose iron sheet to cover the window. But the learned Magistrate has observed in his notes of inspection that there was no such loose piece of iron sheet when he visited the site. It must, therefore, be held that the tank was not securely fenced and thus the provisions of Rule 55 were contravened.
4. The next question is, whether Rule 55 is ultra vires of the Provincial Government. Rules 41 to 55 purport to have been framed under Sections 24 and 32 of the Act. Section 24 appears in chapter III which deals with ' Health and Safety '. That section purports to provide for the fencing of machinery for the safety of those attending to the machinery in a factory. Under Sub-section (1) of Section 24, every part of the machinery mentioned in Clauses (a) and (b) and every part of the machinery which the Provincial Government may prescribe must be kept adequately fenced. As regards other parts of the machinery, that is to say, those parts which do not fall within Clauses (a), (b) and (c) of Sub-section (1) of Section 24, if the Inspector considers any such part dangerous, if not adequately fenced, he may serve on the manager of the factory an order in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before a specified date. Sub-section (4) of a. 24 empowers the Provincial Government to prescribe any further provisions that it may think necessary for the protection from danger to persons employed in attending to the machinery in a factory. Rule 55 obviously does not provide for the fencing of any part of the machinery. It is true that in this particular case the hot water circulating tank is admitted to be machinery as defined in Section 2(k) of the Act. But that is only an accident. The rule is not confined to such tanks which are a part of the machinery, but to all tanks, pits, gutters or excavations of more than 18' in depth and all open tanks or open vessels containing either chemicals or hot substances dangerous to human life or safety. All these places are required to be securely fenced, except when they are, in the opinion of the Inspector, by reason of construction or position, equally safe to every worker as they would be if securely fenced. The very heading of that rule refers to places which are required to be securely fenced and not to parts of a machinery. The order in which Rules 41 to 55 are arranged shows that Rules 41 to 49 are framed under Section 24(1)(c) prescribing which parts of the machinery require to be fenced, and Rules 50 to, 55 which are placed under the heading ' protection of Workers attending to Machinery' purport to have been framed under Section 24(4). But that sub-section is intended to provide protection from danger to persons employed in attending to the machinery in a factory; so that the danger apprehended must be from the machinery for which a provision is prescribed by that sub-section. But rule 55 is intended to protect all persons, whether employed in attending to any machinery or not, against cer tain dangerous places specified in it. Thus evidently the rule is intended to provide for the protection of persons to whom the thing to be fenced is likely to be a source of danger and as such falls under Section 32(g) of the Act. That clause empowers the Provincial Government to make rules ' providing for any other matter which may be expedient in order to give effect to the provisions of this Chapter'. That chapter deals with the health and safety of all persons in the factory, not necessarily of persons employed in attending to the machinery in a factory.
5. Mr. Shah for the applicant points out that Section 24 is specially intended to provide for some additional requirement of adequately fenced parts of a machinery. In the case of those parts which fall within Sub-section (1), Clauses (a) and (b), or which are prescribed under Clause (c) of Sub-section (1) of Section 24, the machinery itself is to be fenced adequately. In the case of other parts of the machinery, Government has no power to prescribe any provisions by rules, but the Inspector is given power by Sub-section (2) of Section 24 to serve a notice on the manager of the factory requiring him to carry out the measures specified by him. In these circumstances the Provincial Government cannot frame any rule in respect of a part of the machinery which falls under Sub-section (2) of Section 24. In support of this contention, he relies upon the ruling in Emperor v. Hassim Ibrahim : (1942)44BOMLR810 where it is held that the Provincial Government has no power under Section 22 of the Factories Act, 1934, to make general rules covering the subject of means of escape against fire, which is dealt wish by Section 23, and Section 23 is not to be enforced by means of rules. Applying the principle laid down in that ruling, Mr. Shah contends that the Provincial Government has no power to make any rules for fencing any part of the machinery not falling under Section 24(i)(c), since Sub-section (2) of that section provides for the fencing of such parts of the machinery in a factory. On the analogy of the principle laid down in that ruling, Rule 55 also would have been ultra vires had it been intended to require fencing to part of the machinery, but it is a mere accident that the particular tank with which this appeal is concerned happens to be capable of being regarded as a part of the machinery in the factory. But Rule 55 is not intended to be applicable to any particular type of tank. It prescribes a general provision for the fencing of all pits, tanks, gutters, excavations or open vessels which are regarded as dangerous to human life or safety whether they are parts of the machinery or not. It is a general rule which has evidently been framed under Section 32(g) and has been misplaced under the heading ' Fencing', so as to indicate that it is framed under as. 24 and 32. But on that account it cannot be held to be ultra vires of the Provincial Government. We hold that it has been duly framed under the powers conferred upon the Provincial Government by Section 32(g) of the Act. Hence though the charge against the applicant was under Section 60(o(iii), he has been rightly convicted under Section 6o(a)(iv) of the Act.
6. The rule is, therefore, discharged.