Basi Reddy, J.
1. This is an appeal by the State Government) against an appellate order of acquittal passed, by the learned Sessions Judge, Nellore, setting aside the conviction of the respondent for an offence under Section 92 of the Factories Act for the contravention of R, 3 and Rule 5 (3) of the Madras Factories Rules framed under Section 6 of the Factories Act.
2. The case for the prosecution is as follows:
The respondent is the occupier-cum-manager of the Stove Beedi Factory at Nellora. He has constructed a factory at Padugupadu without the prior approval of the plans, dy the Chief Inspector of Factories as required by Rule 3, and he has carried on a manufacturing process in the factory without obtaining a licence as required by R, 5 (3). The Assistant Inspector of Labour, Nellore Circle, visited the building belonging to the respondent at Padugupadu on 20-4-1955 at about 12-30 P. M. He found 24 persons working in the building.
They were rolling 'beedies'. The Assistant Inspector of Labour then issued a notice to the respondent (Ex. P-2), enclosing a copy of his notes of inspection (Ex. P-l (a)), asking him to show cause why he should not be prosecuted for not complying with the provisions of the Factories Act and the Rules as detailed in the notes of inspection. To that notice the respondent sent me following reply (Ex. P-3):
Stove Beedi NelloreMohd. Murtuza Hussain (Nellore)D/-14-5-55Madras Presidency.ToThe Inspector of Factories,Nellore (VIII Circle).Sir,Factories Act 1948 and Madras Factories Rules 1950 Non-compliance of provisions of Act and Rules Show Cause Notice.
Ref: Your letter Re. B-2 No. 1100/55, dated -4-55.
It is only a small beedi manufacturing branch, but not a factory to observe the rules.
Sd/- Md. Murtuza Hussain.
3. On receipt of this reply, a prosecution was launched against the respondent after obtaining the requisite sanction of the Chief Inspector of Factories.
4. At the trial before the Additional First Class Magistrate, Nellore, the prosecution examined the Assistant Inspector of Labour as P.W. 1 and he spoke to his inspection of the building in question and what he found there. The respondent was then questioned by the Magistrate under Section 342, Cr. P, C. It is necessary to set out the questions put by the Magistrate and the answers given by the respondent.
Q. You have heard the evidence of P.W. 1 that when he inspected your building in Padugupadu, there were 24 workers present rolling beedies on 20-4-1955 at 12-30 P. M. and that they did not produce any licences and that he noted their names except two of them?
A. No. They are not my workers. I admit the building is mine.
Q. You are said to be the owner and occupier of the Stove Beedi Factory at Nellore?
Q. You are said to have issued a reply notice to P.W. 1 that you failed to take out a licence as it was a small branch?
A. I then admitted the fact.
Q. What else have you to say?
A. It is not a branch. I collect four or five persons of the locality and make them roll beedies as a cottage industry. The manager was net my agentl Ex. D-l is my L-2 licence.
Q. Have you D. Ws.?
A. Yes. I will get them.
5. It will be noticed that there was a change of front on the pant of the respondent. Whereas in Ex. P-3 he had asserted that the business at1 Padugupadu was only a small 'beedi' manufacturing branch, but not a factory and therefore as was not necessary to observe the rules, in his statement before the Court; he took the stand that it was not a branch, but that he had collected four or five persons of the locality and made them roll Tweediest' as a cottage industry. He, however, admitted that the building in which the work was being carried on was his and he had a L-2 licence (Ex. D-l) to carry on whole-sale trade in tobacco in the premises.
6. The respondent examined two clerks of his as defence witnesses. They deposed that the respondent owns a building at Padugupadu which he uses as an agricultural farm-building and keeps his cattle there. One Anwar Khan took a room in that building for rolling 'beedies' there and supplying them to the respondent. About five or six persons work under him and he pays them wages. In cross-examination they admitted that the workers work under L-2 licence-holders that Anwar Khan has no L-2 licence and the respondent has one.
7. It may be noted that whereas the respondent had not said a word about Anwar Khan in his statement before the Court, the defence witnesses brought this man into the picture. This mysterious person was not examined by the defence.
8. The learned Additional First Class Magistrate accepted the evidence of P.W. 1 and taking into consideration the admission made by the respondent in Ex. P-3, and rejecting the defence that the building was used as a farm-house and that the workers were not employed by the respondent, found that the respondent) was the 'occupier' of the premises within the meaning of Section 2(n) of the Factories Act. and had violated the provisions of Rule 3 and Rule 5 (3) of the Madras Factories Rules. He accordingly convicted the respondent under Section 92 of the Factories Act.
9. On appeal the learned Sessions Judge came to the conclusion that the prosecution had failed to prove that the persons found working in the Padugupadu building belonging to the respondent, were employed by him and not by Anwar Khan as alleged by the defence, and in that view acquitted the respondent.
10. The learned Public Prosecutor contends that the facts and circumstances proved in this case establish the guilt of the respondent and the learned Sessions Judge was clearly in error in reversing the judgment of the trial Court and acquitting the respondent.
11. The learned Advocate for the respondent, while not disputing the fact that the building in question belonged to the respondent and a manufacturing process was carried on there, argues that the workers who were found working by P.W. 1, were not employed by the respondent and therefore, he cannot be made liable. lie relies on the definition of 'factory' in Clause (m) and of 'worker' in CI. (1) of Section 2 of the Factories Act. Clause (m) (2) runs as follows:
Factory' means any premises including the precincts thereof;(2) 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 carries on without the aid or power, or is ordinarily so carried on.
12. Clause (1) reads thus: .
Worker' means a person emplcfyed directly or through any 'agency, whether for wages or not, in any manufacturing process, or is 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 of the manufacturing process.
The contention on behalf of the respondent is that it was Anwar Khan and not the respondent that had employed the workers and, therefore, the respondent cannot be said to have contravened the provisions of Rule 8 or Rule 5 (3) of the Madras Factories Rules.
13. In my opinion this contention is wholly untenable and totally opposed to the evidence on record. The learned Sessions Judge has too readily accepted the random suggestion made by the defence that Anwar Khan was the real employer. He has allowed himself to be assailed by unreasonable doubts and has held that the prosecution has not roved the ingredients of the offence. Section of the Evidence Act indicates what constitutes 'proof.
A fact is said to be 'proved' when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.
14. From the facts and circumstances proved in this case, the conclusion is inescapable that the respondent was working the factory at Padugupadu. He is the owner of the building; he has a L-2 licence for the premises; he has a 'beed' factory at Nellore; in Ex. P-3 he had taken the stand that the business at Padugupadu was only a small 'branch'; in his statement in court, however, he shifted his ground and said that it was not a branch, but that he used to collect four or five persons of the locality to roll 'beedies' as a cottage industry; neither in Ex. P-3 nor in his sfiatement before the Court was there any whisper of Anwar Khan as the person who had employed the workers.
Agreeing with the trial Court, I have no hesitation in holding that the plea of the respondent was an after-thought and D. Ws. 1 and 2 have given false evidence to help their master. A bare reading of. their evidence convinces one that they are suborned witnesses. The testimony of P.W. 1 stands unimpeached. Accordingly, I find that the respondent was the 'occupier' of the factory alt Padugupadu when P.W. 1 inspected it on 20-4-1955, and he has contravened the provisions of Rule 3 and Rule 5 (3) of the Madras Factories Rules and is thus liable under Section 92 of the Factories Act.
15. In the result the appeal is allowed, the order of acquittal is set aside and the respondent is convicted under Section 92 of the Factories Act, and sentenced to pay a fine of Rs. 100/- under each count in default to suffer simple imprisonment for one month under each count.