1. The petitioners are the proprietors of three establishments known as 'Welcome Hotel, ' 'Welcome Coffee House' and 'Welcome Coffee Club, ' situated in Vijayawada town. These three establishments prepare articles of food and drink and cater them to the members of the public who visit them. For the purpose of preparing refreshments and other articles of food and for catering them to customers, the petitioners employ a number of persons. From the year 1950 the petitioners were taking out licences under the Factories Act, 1948, for these three establishments and the provisions of the Factories Act were being applied to them. Those licences were being renewed from year to year and till this writ petition was filed on 18 July, 1956, no objection was raised by the petitioners to the application or the applicability of the Factories Act to these three establishments. In this petition filed under Art. 226 of the Constitution, the petitioners seek the issue of a writ of mandamus or any other appropriate writ, direction, or order directing the respondents herein (the Additional inspector of Factories, Circle No. I, Vijayawada, and the Additional Inspector of Factories, Circle No. Ill, Vijayawada) to forbear from enforcing any of the provisions of the Factories Act against the petitioners or their establishments. The first contention on behalf of the petitioners is that none of the three establishments in question is a 'factory' within the meaning of S. 2(m) of the Factories Act inasmuch as no 'manufacturing process' within the meaning of S. 2(m) of the Act is carried on there. It is urged that the preparation of articles of food and drink is not a 'manufacturing process' as contemplated by the Act. To determine this question the relevant provisions of the Factories Act have to be noticed. Section 2(m) of the Act is as follows :
'Section 2(m). - 'Factory' means any premises including the precincts thereof -
(i) whereon ten 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 the aid of power, or is ordinarily so carried on, or
(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 without the aid of power, or is ordinarily so carried on
2. As to what constitutes a 'manufacturing process' is defined by S. 2(k) of the Act which, so far as is material for the present purpose, is as follows :-
'Section 2(m). - 'manufacturing process' means any process for (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal.'
3. In these establishments, meals, refreshments, coffee and other eatables and drinks are prepared and sold to customers. Although at the first blush it might seem incongruous that a culinary process should be regarded as a manufacturing process, yet the language employed in Cl. (k) of S. 2 is, in my opinion, wide enough to include the process of preparing foodstuffs and other eatables which are supplied by these establishments. It does satisfy the test of 'making, altering or otherwise treating or adapting any article or substance with a view to its use, sale, or disposal.' This conclusion accords with the view taken by Rajagopalan, J., as to what constitutes a manufacturing process' in New Taj Mahal Cafe, Ltd., Mangalore v. Inspector of Factories, Mangalore [1956 - I L.L.J. 273], and I am in respectful agreement with the view taken by the learned Judge. The further requirement as to the minimum number of workers employed in the manufacturing process, is a question of fact which cannot be determined in this writ petition; but it may be mentioned that the Petitioners themselves in their application for the registration of these three establishments under the Factories Act gave the number of workmen employed in each of these establishments as much more than the required minimum. It follows that the three establishments are factories within the meaning of the Factories Act and the provisions of the Act are applicable to them.
4. The next contention put forward by Mr. K. Ramachandra Rao, learned advocate for the petitioners, is that the Factories Act of 1948, in so far as it seeks to take in hotels and restaurants, was beyond the legislative competence of the Central Legislature, by reason of the fact that in the distribution of legislative powers under the Government of India Act, 1935, the item 'inns and inn-keepers' fell under entry 28 in list II in the Seventh Schedule, and therefore with regard to that topic, the Provincial Legislature alone had the power to make laws and the Central Legislature had not. Assuming, that hotels and restaurants of the type which the petitioners are running are inns and the petitioners are inn-keepers, this contention is untenable because in list Ill, the Concurrent Legislative List, entry 27 related to 'welfare of labour and conditions of labour'; and therefore, the Central Legislature had the power to enact the Factories Act whose object is to regulate labour in factories and to require the employers to pay adequate, attention to the health, safety and protection of their workers; and even if this piece of legislation incidentally trenched upon a Provincial subject, it cannot be held to be ultra vires of the powers of the Central Legislature. In this context the observations of the Judicial Comittee of the Privy Council in P. K. Mukherjee v. The Bank of Commerce, Ltd., Khulna [1947 (2) M.L.J. 6] are pertinent :
'Moreover, the British Parliament when enacting the Indian Constitution Act had a long experience of the working of the British North America Act and the Australian Commonwealth Act and must have known that it is not in practice possible to ensure that the powers entrusted to the several legislatures will never overlap. As Sir Maurice Gwyer, C.J., said in the Subramanyan Chettiar case [(1941) 1 M.L.J. (Supp.) (F.C.)]
'It must inevitably happen from time to time that legislation though purporting to deal with the subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence, the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purposes of determining whether it to legislation with respect to matters in this list or in that.'
Their lordships agree that this passage correctly describes the grounds upon which the rule is founded, and that it applies to Indian as well as Dominion legislation.
No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars and the existence of the Concurrent List has made it easier to distinguish between those matters which are essential in determining to which list particular provisions should be attributed and those which are merely incidental. But the overlapping of subject-matter is not avoided by substituting three lists for two or even by arranging for a hierarchy of jurisdictions. Subjects must still overlap and where they do, the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found.'
5. Applying the above test, it will be seen that the pith and substance of the impugned Act is, as is apparent from its preamble and its provisions, the regulation of labour in factories and the ensuring of good working conditions. This matter fell under item 27 of list III in the Seventh Schedule to the Government of India Act, 1935, and as such was within the legislative competence of the Central Legislature; and an establishment which answers the definition of a factory, would come within the purview of the Act notwithstanding the fact that it is an inn and the person who runs it is an inn-keeper.
6. In the result, the writ petition fails and is dismissed with costs. Advocate's fee Rs. 100.