1. This is an application for revision from the applicant's conviction in respect of an offence under Section 92 of the Factories Act. The applicant, who was convicted by the learned resident magistrate, first class, Ahmednagar, went up in appeal to the learned sessions judge of Ahmednagar; hut he refused to interfere with the conviction, and hence this application for revision.
2. The facts are not in dispute. It appears from the evidence that the applicant in this case is the owner of certain premises, wherein twenty or more labourers work in the process of manufacturing bidis. On 29 October 1950 the complainant Yeshwant visited the premises and found that there was no latrine accommodation in the factory, as required by Section 19(1)(a) of the Factories Act, 1948. The only defence of the applicant, which it is necessary to state, was that it was true that there was no latrine accommodation provided, but the premises was not a factory, as defined in Section 2(m) of the Factories Act of 1948, because the persons working therein were not employed within the meaning of Section 2(1) of the Act.
3. Now, the Factories Act, 1948, defines a factory to mean
any premises including the precincts thereof....
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with or without the aid of power, or is ordinarily so carried on.
That the process of making bidis is a manufacturing process, and there were twenty or more persons carrying it on as labourers is not in dispute. It is also not in dispute that this manufacturing process is carried on ordinarily upon the premises. What is in dispute is, that these persons were workers, as defined in the Act. Now, Clause (1) of Section 2 defines 'worker' to mean
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 a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject-matter of the manufacturing process.
The persons who were making bidis were making them for remuneration by piecework; but that would not prevent them from coming within the definition of 'worker,' because the definition specifically uses the words ' whether for wages or not. 'Mr. Gokhale, who appears on behalf of the applicant, contends, however, that the word 'employed' in this definition has got the sense, not of being engaged, or occupied, but the sense of a contract of service being established between the workers and the owner or occupier of the factory. Now, that the word 'employed' has both the meanings there can be no doubt; the only question is, which is the meaning to be ascribed to the word in the definition in Clause (1).
4. This definition, in the first instance, appears to have been modeled upon Section 152(1) of the English Factory and Workshop Act, 1901. That section wanted to define when a woman, young person or child could be said to be employed within the meaning of the Act, and the definition which it adopted was similar to that which we have, barring minor modifications, except that whereas that section said that if the woman, young person or child worked in what was a factory or workshop, she would be deemed to be employed therein, the definition, which was adopted in our Factory Acts (as a matter of fact, a similar definition would be found in the 1934 Act, which was repealed by the 1948 Act) was to the effect that a person who was employed will be taken as a worker. The idea underlying Section 152 of the English Act was that it made no difference to the question of employment whether there was any relationship of master and servant between the woman, young person or child and the owner or occupier of the factory, and the learned Government Pleader, who appears on behalf of the State, has argued that when the definition which India adopted in its factory legislation is a definition similar to that which is to be found in Section 152 of the 1901 English Act, the intention must have been to render it unnecessary that there should be any relationship of master and servant between the worker and the owner or occupier of the factory; and the learned Government Pleader suggests that a further point is lent to this contention, because in the 1934 Act the same definition was kept, though there was no such provision to be found in that Act as in Section 85 of the 1948 Act. This is a provision relied upon on behalf of the applicant in order to show that the word 'employed ' in the definition of ' worker' in the 1948 Act must have the, meaning that there was relationship of master and servant between the workers in the factory and the owner or occupier thereof. Now, if the matter had stood with the 1934 Act, there may have been some force in the argument advanced on behalf of the State, though even then there is this difference to be reckoned with that where the English Act defined in certain cases employment to mean working, the Indian Act defined a worker as a person employed. But the matter does not' stand there, and we find in Section 85(1) of the 1948 Act a provision that
the Provincial Government may, by notification in the official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on, notwithstanding that...the persons working therein are not employed by the owner thereof but are working with the permission of, or under agreement with, such owner, provided that the manufacturing process is not being carried on by the owner only with the aid of his family.
This may be compared with the provision in Section 151(4) of the English Act of 1937, which is to the following effect:
Any workplace in which, with the permission of or under agreement with the owner or occupier, two or more persons carry on any work which would constitute the workplace a factory if the persons working therein were in the employment of the owner or occupier, shall be deemed to be a factory for the purposes of this Act....
This provision was required because of the definition of 'factory' given in Section 151(1) of the English Act, which is as follows:
Subject to the provisions of this section, the expression 'factory' means any premises in which, or within the close or curtilage or precincts of which, persons are employed in manual labour in any process for or incidental to any of the following purposes . . . being premises in which, or within the close or curtilage or precincts of which, the work is carried on by way of trade or for purposes of gain and to or over which the employer of the persons employed therein has the right of access or control.
It is well established that the word 'employed' in Section 151(1) has got the meaning which Mr. Gokhale, who appears on behalf of the applicant, contends that it has under the Indian Act; see Weston v. London County Council (1941) 1 K.B. 608. Another reason why it was necessary to provide by Section 151(4) of the English Act that the place referred to therein was a factory was that it would not have been a factory, because of the last words of the definition in Section 151(1). They are
and to or over which the employer of the persons employed therein has the right of access or control.
It has got to be remembered that under the English Act it is not necessary that in order that any premises could be said to be a factory, the employer need be the owner or occupier of the premises constituting a factory. It was sufficient if he had a right of access to them or had control over them. The reason why the workplace referred to in Section 151(4) would not, therefore, be a factory within the meaning of Section 151 could be two: one, the persons may not be in the employment of anyone, and secondly, that even if they were in the employment of somebody, that person may not have access or control over the premises, where the work was carried on. It is when we try to find out why it was deemed necessary to provide by Section 85 of the 1948 Act that
the Provincial Government may, by notification in the official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on notwithstanding that...the persons working therein are not employed by the owner thereof but are working with the permission of, or under agreement with, such owner
that we get a clue to the actual meaning of the word 'employed.' Now, if we were to accept that the worker is any person who is 'engaged or kept busy in any manufacturing process, then, if there is any place let, for example, to somebody, and the workers who are, e.g., manufacturing bidis, whether under a contract with, or under a contract of service from, the bidi manufacturer, are more than twenty in number, the premises will necessarily fall within the definition in Section 2, Clause (m), because upon the footing that the word 'employed' means what the learned Government Pleader for the State says it means, there is no provision in the definition of either 'factory' or 'worker' corresponding to the provision in Section 151(1) of the English Act
and to or over which the employer of the persons employed therein has the right of access or control.
It is obvious, therefore, that it was thought necessary to include in the Act the provision of Section 85(1) so as to enable Government to declare as a factory even premises where more than twenty persons worked, who were not employed by the owner of the premises, but were working there with the permission of, or under agreement with, the owner, be cause the meaning which the legislature gave to the word 'employed ' in Section 2(1) was that there was a contract of service between the workers and somebody. In that view of the case, the place where the applicant was carrying on the business of manufacturing bidis has not been shown to have been a factory. All that we know is that the bidi-makers were paid by piecework and could take the materials home for making bidis. These facts are consistent with there being no relationship of master and servant between the applicant and the bidi-makers.
5. The conviction and sentence of the applicant must, therefore, be set aside and the fine, if paid, should be refunded.
6. The same order will apply to the companion applications for revision, in which the owner has been convicted of another breach of the Factories Act, and the manager has been convicted of the offence of failing to provide latrine accommodation.