1. The accused, who is the agent and an occupier of the Silk and Cotton Manufacturing Company, Limited, Ahmedabad, was charged with and tried for an offence under Section 15(1)(c) of the Indian Factories Act, in that he allowed two boys both aged under fourteen to work in the mill unregistered.
2. The learned Magistrate has acquitted the accused principally on the ground that the work which the boys were employed to do was not an integral part of the ordinary mill operations, and that the boys had been employed not by the accused but by an independent contractor, and that therefore the accused was not responsible for their employment.
3. Upon a careful consideration of the provisions of the Indian Factories Act, XV of 1881, I think that the grounds upon which the Magistrate has proceeded cannot be supported. It appears to me that the provisions in question throw upon the occupier the responsibility as regards the employment of boys under fourteen unregistered, and that prima facie it was the duty of the occupier to see that such boys were not employed in the factory unregistered. A person cannot get rid of his liability for the performance of a duty imposed upon him by law by delegating it to another person. As observed by Lord Blackburn in Dalton v. Angus (1881) 6 App. Cas. 749: 'a person causing something to be done, the doing of which costs on him a duty, cannot escape from the responsibility, attaching on him, of seeing that duty performed, by delegating it to a contractor.
4. Here the Indian Factories Act imposed upon the occupier the duty of seeing that boys under fourteen were not employed in his factory unregistered. And he could not get rid of that liability by entrusting it to a contractor. It is true that he employed a contractor who in his turn employed persons for the purpose of drawing cotton in the mill. But all the same it was the occupier's duty imposed upon him by law to see that boys under fourteen were not employed unregistered in the mill in work connected with the mill operations and he could not get rid of it except by proving that his case fell under Section 17 of the Act. And therefore from that point of view the employer was responsible.
5. The learned Magistrate was of opinion that the work of drawing cotton did not form part of the mill operations. But the definition of the word 'employed' given in Section 2 of the Act is wide enough to embrace it.
6. It has been argued by Mr. Thakor for the accused that his client is entitled to an acquittal having regard to the provisions of Section 17 of the Factories Act. But there is no finding in the judgment of the Magistrate from which we can infer that the Magistrate was of opinion that the boys were employed unregistered without the knowledge or consent of the occupant. And the circumstances of the case satisfy us that he could not have been altogether ignorant of the employment of these boys, because his defence in the Court below was that it was not he but the contractor who employed these boys.
7. For these reasons we set aside the order of acquittal, convict the accused and inflict a fine of Rs. 5, in default simple imprisonment for a week.
8. It seems to me that the Magistrate in disposing of this case has overlooked the definition of the work 'employed' given in Section 2 of the Factories Act, XV of 1881. Had he had that definition in mind, it is probable he would have arrived at the conclusion that the two children with whom we are concerned in this case were unquestionably employed in the factory and that is the conclusion at which I have arrived. But their names were not entered in the register which is required to be kept by Rule 19 of the Bombay Factory Rules and by Section 9 of the Act. This Rule and Section 9 direct the occupier of a factory to keep a register of the children employed and their respective employments. It seems to me that this direction to the occupier throws on him a personal responsibility in finding out whether children are or are not employed in his factory. The knowledge of this responsibility which is attached to the occupier, is very material in considering any defence which an occupier might make under Section 17 of the Act, on the ground that he has discharged his liability by proving that the failure to enter the children in the register was due to the act of some other person without his knowledge or consent.
9. On the facts as far as they can be gathered from the record it is quite clear to my mind that no defence under Section 17 is established in this case. Therefore, I agree with the order reversing the acquittal and convicting the occupier.