Skip to content


Vasudeva Rao (H.) Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Judge
Reported in(1961)IILLJ591Kant
AppellantVasudeva Rao (H.)
RespondentState of Mysore
Excerpt:
.....grant of licence as required under section 6 of the factories act read with rules of the bombay factories rules, 1950. it was held that the failure to apply for the grant of a licence was a continuing offence, where as the failure to apply for registration and to give a notice of occupation was not a continuing offence. the failure of a person to obtain the necessary licence to run the 'factory' meant that he committed a fresh offence on every day that he worked the 'factory. he also failed to obtain the necessary permission in writing for the extension of the factory; further he failed to get his licence amended for using a motor with greater horse-power than that was originally granted to him. with respect i am unable to agree with the learned judge in his conclusion that the..........a sense it can be considered as a 'continuing offence' or to be correct it resulted in recurring offences. offences of this type are different from those which are isolated and independent offences. what is made an offence is not the failure to take a licence for the factory but the carrying on of the manufacturing process without a licence. that being so, so long as the manufacturing process is carried on without a licence, the offence must be deemed to be continuing or recurring. it is true that it la inexact to call such offences as 'continuing offences.' but that expression has gained currency and its import is well known to lawyers. a case somewhat similar came up before the king's bench division in verney v. mark fletcher & sons, ltd. (1909) 1 k.b. 444. lord chief justice.....
Judgment:
ORDER

K.S. Hegde, J.

1. The petitioner has been convicted by the learned District Magistrate of South Kanara in S.T.C. No. 4 of 1959 on his file, for three offences under the Factories Act (which shall be hereinafter called the 'Act'). Firstly he was convicted under Section 92 read with Section 6 and Rule 5(3) of the rules framed under the 'Act' (hereinafter called the 'rules') for having carried on the manufacturing process in a 'Factory' without, obtaining a licence under the 'Act,' and the 'Rules' from the Chief Inspector of Factories, Mangalore; secondly under Section 92 read with Section 112 and Rule 104 for not maintaining a register of accidents and dangerous occurrences in the prescribed form--Form 26); and lastly under Section 92 read with Section 112 and Rule 105 for having failed to maintain a bound inspection book as prescribed by Forms 7, 28 and 29. In appeal the learned Sessions Judge of South Kanara confirmed the convictions, though he modified the sentences of fine imposed. As per the modified sentences the petitioner was directed to pay a fine of Rs. 25 for each of the offences for which he was convicted, in default to suffer simple imprisonment for one week under each head.

2. Various contentions, big and small, were taken by the accused in the Courts below. In this Court the learned Counsel for the petitioner Sri K.R.D. Karanth pressed only two contentions. He urged that (1) the conviction for an offence under Section 6 read with Rule 5(3) is barred under Section 106 of the 'Act'; and (2) on the facts proved it is shown that the offences were committed by the petitioner in good faith and consequently the prosecution is unsustainable in view of Section 117 of the 'Act.'

3. The ground of limitation under Section 106 is founded on the following facts: P.W. 1; M. Chami Nair, the Chief Inspector of Factories, Bangalore, according to the evidence given by him, visited the 'factory' of the petitioner on 12 March 1957, 9 December 1957 and 5 June 1958; on all those occasions he found that the petitioner was working the 'factory' without a licence. But the complaint in this case was filed sometime in 1959 and that on the basis of the show-cause notice issued on 29 December 1958, which was given after an inspection by P.W. 2. It is contended on behalf of the petitioner that the offence came to the knowledge of the Chief Inspector even as early as 12 March 1957 and the complaint not having been filed within three months from that date, the Court was precluded from taking cognizance of the offence in question. Sri K.R.D. Karanth did not press the ground of limitation with regard to the second and the third charges which relate to offences which are clearly 'continuing offences.' Hence we have to see whether the offence of carrying on the manufacturing process is an establishment without obtaining a licence under the 'Act' and the 'Rules' from the Chief Inspector of Factories Is a 'continuing offence.' Sri Karanth placed considerable reliance on the decision in Public Prosecutor v. T.A. Rathnam Pillai 1959--I L.L.J. 257 in support of his contention. Before we proceed to consider that decision it is necessary to acquaint ourselves with the relevant provisions of the 'Act' and the 'Rules.' The relevant portion of Section 6 reads:

The State Government may make rules:--

* * * * *(d) requiring the registration and licensing of factories or any class of description of factories, and prescribing the fees payable for such registration and licensing and for the renewal of licence:* * * * *

Rule 5(3) which is the rule with which we are concerned reads as fallows:--

No manufacturing process shall be carried on in any factory without a licence granted by the Chief Inspector.

From the above 'Rule' it is clear that the working of a 'factory' without a licence Is an offence. Working of the 'factory' took place day after day and in a sense It can be considered as a 'continuing offence' or to be correct it resulted in recurring offences. Offences of this type are different from those which are isolated and independent offences. What is made an offence is not the failure to take a licence for the factory but the carrying on of the manufacturing process without a licence. That being so, so long as the manufacturing process is carried on without a licence, the offence must be deemed to be continuing or recurring. It is true that it la inexact to call such offences as 'continuing offences.' But that expression has gained currency and its import is well known to lawyers. A case somewhat similar came up before the King's Bench Division in Verney v. Mark Fletcher & Sons, Ltd. (1909) 1 K.B. 444. Lord Chief Justice speaking for the Bench observed:

The information in the present case charges the respondents that their factory was on 1 July 1908 not kept in conformity with the Act by reason of the omission to fence their flywheel. If that be proved, I have not the slightest doubt that there was on 1 July a direct and continuing breach of the provisions of Section 10. It is said that because in May 1905, and again in March 1908, the flywheel was unfenced, to the knowledge of the inspector, and the information was not laid until 22 July 1908, the requirements of Section 146 have not been complied with. In my opinion an offence was committed on 1 July 1908, just as much as in March 1908, or May 1905, and the offence committed on 1 July came to the knowledge of the inspector on that day, when he visited the respondent's factory. I, therefore, come to the conclusion that the information was laid in time.

With respect I adopt the ratio of this decision. The decision was followed by a Bench of the Madras High Court in Public Prosecutor v. Veerabhadrappa Lakshminarayana Shetty : AIR1953Mad204 . The distinction between offences which are complete and offences which are continuing are well brought out by Gajendragadkar, J. (as he then was) in State v. A.B. Bhiwandiwala 1956--II L.L.J. 153. In that case the accused before occupying or using the premises in question as a 'factory' had failed to submit to the Chief Inspector of Factories of Bombay State, a written notice in Form 3 as required under Section 7(1) of the Factories Act and rules made thereunder. He had also failed to submit to the Chief Inspector of Factories an application in Form 2 for the registration of the 'factory' and grant of licence as required under Section 6 of the Factories Act read with rules of the Bombay Factories Rules, 1950. It was held that the failure to apply for the grant of a licence was a continuing offence, where as the failure to apply for registration and to give a notice of occupation was not a continuing offence. Consequently the former was not barred by Section 106 while the latter was so barred. In cases where licences are required to occupy a building, the offence Is complete once the building is occupied without a licence. But in the case of working of a 'factory,' It is a continuing offence. The failure of a person to obtain the necessary licence to run the 'factory' meant that he committed a fresh offence on every day that he worked the ' factory.'

4. Now we may proceed to consider the decision in Public Prosecutor v. Rathnam Pillai 1959--I L.L.J. 257. Therein the accused reconstructed his factory premises without obtaining the necessary licence. He put a low roof in the premises for which he should have obtained the previous permission from the State Government or the Chief Inspector of Factories by submitting the necessary plans and estimates; he also failed to obtain the necessary permission In writing for the extension of the factory; further he failed to get his licence amended for using a motor with greater horse-power than that was originally granted to him. Basheer Ahmad Sayeed, J., opined that none of these offences are continuing offences and the prosecution is barred by Section 106 of the Factories Act, as the Inspector of Factories came to know the commission of the offences In question more than three months prior to the institution of the complaint. With respect I am unable to agree with the learned Judge in his conclusion that the failure to obtain the necessary licence for working a new motor was not a 'continuing offence.' No reasons are given in support of that conclusion. What is made an offence is the working of the motor and not its installation. I regret that I am unable to subscribe to the correct ness of that decision.

5. In my view the petitioner had clearly contravened Section 6 read with Rule 5(3) when he carried on the manufacturing process in the 'factory' without obtaining a licence. Hence the plea based on Section 106 Is unavailable to the petitioner.

6. This takes us to the other contention that the prosecution is hit by Section 117 of the 'Act.' It is urged on behalf of the petitioner that he was Ignorant of the relevant provisions of the 'Act' and the 'Rules' framed there under; he was under the impression that his was not a 'factory' as defined in the 'Act;' hence no prosecution lay against him as the alleged contraventions were done in good faith. It will be a dangerous principle to uphold the contention of good faith based on ignorance of law. That apart it is difficult to see how Section 117 of the 'Act' can be of any assistance to the petitioner. Section 117 is one of those indemnity provisions usually incorporated to protect the officers enforcing fiscal and penal enactments. It is not a provision enacted for the benefit of the persons who contravene the provisions of those enactments. What is protected tinder Section 117 is 'anything which is in good faith done or intended to be done under this Act.' It does not afford any protection to anything which is done or intended to be done in contravention of any of the provisions of the 'Act.' A contravention of any provision of the 'Act' is not something 'done under the Act.' In support of his contention based on Section 117, Sri Karanth relied on the decision in Re: P. Lakshmiah Naidu 1958--II L.L.J. 571. This decision undoubtedly supports him. It was held therein that where a manager of a rice mill bona fide believed that he could employ casual labour overtime in emergencies and he had maintained in the usual course of business an overtime register, wherein the casual overtime payments made to labourers as such were entered and he honestly believed that what he was doing was not contravening any provisions of the 'Act,' he is protected by Section 117. With great respect to the learned Judge I am unable to agree that the decision in question lays down the law correctly.

7. In the result, this revision petition falls and the same is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //