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V.H. Kotecha, Manager, Lakshmidas Premji, Ghee Merchants, Agraharam, Guntur Vs. the Regional Inspector of Factories, Guntur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 3 of 1957
Judge
Reported inAIR1960AP147; (1960)ILLJ55AP
ActsFactories Act, 1948 - Sections 2; Constitution of India - Article 226; Industrial Disputes Act, 1947
AppellantV.H. Kotecha, Manager, Lakshmidas Premji, Ghee Merchants, Agraharam, Guntur
RespondentThe Regional Inspector of Factories, Guntur
Appellant AdvocateG. Suryanarayana, Adv.
Respondent AdvocateM.S. Ramachandra Rao, 2nd Govt. Pleader
DispositionAppeal dismissed
Excerpt:
.....- sections 2 (m) (2), 2 (k) (1) and 2 (c) of factories act, 1948 - whether appellant carrying on manufacturing process - ghee brought, melted and poured into tins after analysis and was later dispatched to calcutta - process not only packing rather manufacturing as product transformed for sale and thus come within definition of factories act - held, appellant carrying on manufacturing process. (ii) question of fact - article 226 of constitution of india - question regarding number of workers in petitioner's factory raised - question of fact cannot be disputed under writ petitions - depending on affidavits court cannot decide matter before it - findings of statutory body upon this fact to be accepted. - - , the employment oi 20 or more workers under section 2(m)(ii), and the..........being used. under sub-clause (ii) two requisites are necessary, (1) that there must be 20 or more workers working or were working on any day of the preceding 12 months, and (2) that a manufacturing process is being carried on. manufacturing process for the purpose of the act has been defined in clause (k) of section 2, sub-clause (i) whereof is relevant to the facts of this case.according to that '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.' it is difficult to find a more comprehensive definition of manufacturing process than what is mentioned in.....
Judgment:

Jaganmohan Reddy, J.

1. This writ appeal is against the judgment of our learned brother Satyanarayana Raju J., whereby he dismissed the petition filed by the appellant under Article 226 of the Constitution. The main question in this is whether the appellant who was carrying on the business of collecting ghee brought by various intermediaries from the several places in Guntur and other districts, packing the same in tins. and despatching them to Calcutta, was employing 20 or more workers and was carrying on a manufacturing process within the meaning of the Factories Act LXIII of 1948 (hereinafter called the Act).

2. On behalf of the petitioner, it is contended that the Regional Inspector of Factories, Guntur, was not right in concluding that the petitioner was employing more than 20 workers and that the pro-cess he was adopting for the past sixty years was a manufacturing process. He states that he merely purchases ghee from various intermediaries for the same to be put in a bhandi, from which it is poured into tins which are sealed and sent to their Head Office at Calcutta.

On 26th May, 1955, the Regional Inspector of Factories issued a notice and threatened the peti-tioner with prosecution for non-compliance with the provisions of the Act. The Chief Inspector of Factories to whom the petitioner appealed held that the premises was a factory under the provisions of the Act. The petitioner now contends that the work done in the Guntur premises does not involve any manufacturing process within the meaning of Section 2(k) of the Act and consequently the two coadi-tions requisite for holding that he is governed by the provisions of the Act, viz., the employment oi 20 or more workers under Section 2(m)(ii), and the carrying on a manufacturing process under S, !J (k) (i), have not been satisfied.

The respondent on the other hand alleges that not only does the petitioner employ more than 20 workers, but he has the ghee melted and analysed chemically by chemists employed by him who having regard to the percentage of Oelic Acid and the R. M. value, grade it for the sake of uniformity, The petitioner, it is stated, is also licensed by the Ministry of Agriculture and Marketing to adopt the agricultural marketing standard and fix the agricultural market label to his product.

In these circumstances, he is carrying on a manufacturing process. These averments, however, have not been controverted by the petitioner.

3. In order to determine whether the premises of the petitioner where ghee is melted, put into tins scaled and then sent to Calcutta, as stated above, constitutes a factory under the Act, it is necessary to examine the definition of the word 'factory' set out in Section 2(m) of the Act, which is as follows :

'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 mouths, and in any part of which a manufacturing groeess 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 am of power, or is ordinarily so carried on,--

but does not include a mine subject to the eperation of the Indian Mines Act, 1923 (IV of 1923) or a railway running shed;'

The provisions of Sub-clause (i) of Clause (m) do not apply to the facts of the instant case as, admittedly, no power was being used. Under Sub-clause (ii) two requisites are necessary, (1) that there must be 20 or more workers working or were working on any day of the preceding 12 months, and (2) that a manufacturing process is being carried on. Manufacturing process for the purpose of the Act has been defined in Clause (k) of Section 2, Sub-clause (i) whereof is relevant to the facts of this case.

According to that '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.' It is difficult to find a more comprehensive definition of manufacturing process than what is mentioned in this clause.

It would appear that as long as there are 20 or more workers in a premises, where no power is used, or where power is used, ten or more wor-lers are working, almost any process would make the premises a factory. The emphasis appears to be not so much upon the process, but upon the number of workers working, which the Parliament in its wisdom, tending towards the building up of a Socialist Pattern of society, has placed, in 1948 when it amended the definition.

Before independence Section 2(g)(i) of the Facto-ries. Act XXV of 1934, which was repealed by the Act, did not contain Sub-clause (iv) and (v) and the words 'oiling, washing, cleaning, breaking up, demo-lishing', in the definition of manufacturing process. The comprehensiveness of the definition in the Act does, not limit the 'manufacturing process' to its generic and natural import.

The definition in the English statute on a comparison with that of the Indian statute would show that the expression 'factory' under the English statute is applicable to a premises only in which or within the close curtilege or precincts of which persons are employed in manual labour in any process for or incidental to what have been described later on in that section.

A general definition of the word 'factory' is first formulated so as to relate the manual labour to any process for or incidental to what has been specified subsequently by way of abundant caution. The distinction has been pointed out by Govinda Menon J., in K. V. V, Sarma, In re, : (1953)IILLJ29Mad , after referring to the Indian and English statutes, at page 784 as follows:

'..... In other words, according to the English statute, if an establishment satisfies the general words of the definition and if manual labour is employed in such an establishment, it becomes a factory. But even if such an establishment cannot be brought within the wide terms of that definition, still as specifically bringing it within ^ the definition are the various defined institutions.

The Indian Act of 1934, in defining 'manufacturing process' is not as wide as the definition in the present Act. The Select Committee which considered the Bill before it was passed into an Act stated that the definition of 'manufacturing process' has been made much wider and more comprehensive than in the 1934 Act.

Section 2(k), Sub-clause (iv) and (v), were added by the Select Committee and it is stated that this addition is intended to amplify the definition so as to include printing and ship-building. The Indian Act did not borrow from the English Act the various amplifications mentioned as items (i) to (x) and (xii) and (xiii) nf Section 15 (1) of the English Act.'

In the circumstances the several English cases which have been referred, having been decided on the provisions of the English Factories Act cannot be of much assistance. Under the Indian Act even transporting, washing, cleaning, oiling and packing, which do not involve any transformation as such which is necessary to constitute a manufacturing process in its generic sense, are none the less treated as manufacturing process.

The definition is artificially projected beyondthe scope of the natural meaning that thewords might convey, thus covering a verywide range of activities. The several Indian caseswhich have been cited are only illustrative of the activities specified in the definition. In : (1953)IILLJ29Mad , the manufacturing process was conversion of raw film into a finished product, while in New Taj Mahal Cafe Ltd.,Mangalore v. Inspector of Factories, AIR 1956 Mad600, the mere storage of ice-cream in a refrigerator was not considered to be part of the said process, though the preparation of food and otheredibles in the kitchen is part of the manufacturingprocess as it involves the adapting of an articlewith a view to its sale or disposal.

4. Upon the affidavit of the Regional Inspector of Factories, which as we have already stated has not been controverted, what is done upon the premises of the petitioner would certainly amount to manufacturing process within the meaning of Section 2(k)(i) of the Act. The Regional Inspector says,

'the ghee from the melting pot is sampled and analysed chemically. The same which analyses less than 1 1/2 per cent. OeJic Acid and has an R. M. Value of over 28, is graded as special grade and sold in the market as such. The rest is sold as ungraded ordinary ghee.'

Even according to the petitioner, their customers gather ghee from various places in the dis-(ricts, in tins and bring them to their premises. As there cannot be any uniformity in the qualities of ghee brought from several places, it is poured into a big pan and heated with the help of firewood with a view to make it uniform. The ghee thus heated is poured into the tins and sealed and the sealed tins are sent to the Head Office at Calcutta.

This process involves not only packing, but also 'treating or adapting any article or substance with a view to its transport and sale' and clearly comes within the definition of manufacturing process. Even if that very ghee which is brought from districts were to be poured into tins and packed with a view to sending them to Calcutta, though that would not involve any process of transformation, that by itself would be sufficient to bring it within the definition of manufacturing process.

5. It is next contended that the number of workers in the premises were less than 20 and a complaint is made against the Regional Inspector of Factories for having included porters and coolies who were casually employed each day for transporting the tins to the railway station. According to the petitioner, he has employed three classes of employees, (1) one manager, (2) the ghee heaters and tinkers, and (3) the office staff. In all 17 persons are employed in the premises. A worker has been defined in Section 2(1) as

'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 of manufacturing process.'

The distinction between a workman and an independent contractor was stated by Bhagwati J., in Dharangadhra Chemical Works Ltd. v. State of Saurashtra, (S) : (1957)ILLJ477SC , in the context of the definition of 'workman' under the Industrial Disputes Act, XIV of 1947, at p. 267 as follows:

'The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus 'employed' there can be no question of his being a workman within the definition of the term as contained in the Act.'

After examining several English authorities on this aspect, it was observed at p. 268:

'The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work .....

The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer .....'

This statement of law in relation to the definition of a worker in the Industrial Disputes Act was held applicable to the definition of a wnrker un-der the Act by the Supreme Court in Chintaman Rao v. State of Madhya Pradesh, : 1958CriLJ803 , where Suhba Rao J., speaking for the Supreme Court, held that

'There is no reason why the test laid down by this Court in the context of the definition of 'workman' under the Industrial Disputes Aet of 1947, cannot he invoked or applied under the Act.'

Applying this test it will have to be determined whether all the persons found working on the premises of the petitioner by the Regional Inspector of Factories, were workers. The Chemist, one P. W. Sathe, who has been employed by the petitioner, gave to the Regional Inspector of Factories a list of 25 workmen employed in the factory on 32-9-1954 with this remark that the above 25 persons were working in the premises of Lak-sbmidas Premji on 22-9-1954 at 10-30 A. M.

Later, however, by his letter dated 18th October, 1954, he said that he had without any knowledge as to whether all the workers whose names were taken down were workers of the firm or were coolies hired casually only, had given a list of persons, In the circumstances, he requested the Regional Inspector of Factories to reconsider the mat-ter. There were further inspections on the 10th December, 1954, 28th March, 1955 and 9th May, 1955, on all of which occasions the Regional Inspector averred that more than 20 workers were actually working on the premises.

This assertion made by the respondent in his counter-affidavit has not been controverted and must, therefore, be taken as correct. That apart, the question as to how many were working on the petitioner's premises is a question of fact and sufficient data has not been produced before us to determine whether any persons were engaged as independent contractors over whom the petitioner had no control or supervision, and the assertion that 8 or 4 of the persons were casual coolies and por-ters who were employed to take the tins to the railway station has not been substantiated.

In the circumstances, it is difficult to deter- mine a question of fact in a writ petition on merely affidavits and counter-affidavits and there is no rea-son why the determination of this fact by a statutory body should not be accepted.

6. We have no doubt that the two ingredients necessary for declaring the petitioner's premises as a factory are present.

7. This writ appeal is dismissed with costs. Advocates fee Rs. 100.


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