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State of Uttar Pradesh Vs. K.K. Modi and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Case NumberGovt. Appeal No. 17 of 1964
Judge
Reported inAIR1968All197; (1968)IILLJ164All
ActsFactories Act, 1948 - Sections 62, 62(2), 83 and 92; Uttar Pradesh Factories Rules, 1950 - Rule 78 and 78(2)
AppellantState of Uttar Pradesh
RespondentK.K. Modi and anr.
Appellant AdvocateGovt. Adv.
Respondent AdvocateK.C. Agarwal, Adv. (For No. 1) and ;Banarsi Das, Adv. for No. 2
DispositionAppeal partly allowed
Excerpt:
.....violation of rule 78 - incorrect entries made in register required to be maintained under the rule - factory manager doing all the things - held, both manager and occupier are responsible for offence. - - 2, create a strong suspicion that ss. it would, however, not be safe to convict the respondents merely on facts creating grave suspicion. 6. it is not necessary for me to refer to more than two well known rules of construction of statutes in support of the view i take of the ambits of ss. the first of these is the well-known 'mischief rule' laid down in heydon's case, (1584) 76 er 637 where it was observed: ' the second is the well-known rule relating to implied enactment or implied powers which was thus summarised in craies's 'treatise on statute law' (5th ed. it..........trials. 3. the learned magistrate who tried the case has held that the solitary testimony of the factory inspector could not be believed as against the evidence produced by the respondents who alleged that no worker was actually working within the factory when the factory inspector visited it. on this ground, the charges for violations of section 52 and section 63 of the act were found not to have been established. in such cases, it is certainly prudent for the factory inspector to either obtain, if possible, some statements from persons who are found working and who could be produced at the trial, or to take witnesses with him who could corroborate his version. it is undoubtedly a very difficult task for a factory inspector to prove his version as against the statements made by those.....
Judgment:

M.H. Beg, J.

1. This is an appeal by the State against the acquittal of K. K. Modi, the 'Occupier', and Balwant Singh Birdi,the Manager, of Modi Hurricane Lantern Factory, Modinagar, Meerut from charges for breaches of Sections 52 and 63 of the Factories Act, 1948 (hereinafter referred to as 'the Act') and Rule 78 of the U. P. Factories Rules, 1950, read with Section 62 of the Act.

2. The respondents were prosecuted upon a complaint filed by the Chief Inspector of Factories, U. P., in the court of the District Magistrate, Meerut, which was ultimately disposed of by a First Class Magistrate of Ghaziabad who acquitted the respondents of all the charges levelled against them. According to the complaint, P. C. Joshi P. W. 1, Inspector of Factories, Meerut, visited the factory of the respondents at 2.30 P. M. on Sunday, the 4th of November, 1962, and found that 8 workers were working at that time without the delivery of a notice at the office of the Inspector of Factories. Meerut, by the Manager of the Factory of the intention to require these workers to work and without displaying a notice to that effect in the premises of the factory. Section 52(1) of the Act provides as follows:--

'52 Weekly holidays -- (1) No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day), unless -

(a) he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, and

(b) the manager of the factory has, before the said day or the substituted day under Clause (a), whichever is earlier, --

(i) delivered a notice at the office of the Inspector of his intention to require the worker to work on the said day and of the day. which is to be substituted, and

(ii) displayed a notice to that effect in the factory.'

The second charge was for a violation of Section 63 of the Act which provides as follows:

'63. Hours of work to correspond with notice under Section 61 and, register under Section 62 No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made before hand against his name in the register of adult workers of the factory.'

The third ground of complaint related to charges comprising three alleged violations of Rule 78 of the U. P. Factories Rules read with Section 62 of the Act. The first of these three charges was that entries regarding the attendance or absence of 7 workers were missing from 1st November, 1962, to 4th November, 1962, and had not been posted even until 2,30 p.m. on 4th November, 1962, although this should have done within four hours from the commencement of the work on November 1, 2 and 3, 1962 and within two hours on November 4, 1962. The second charge was that wrong entries had been made in regard to Richpal Singh and Vijay Pal Singh who had been found working on 4th November, 1962, although they were wrongly shown to be taking rest in the entries of the Register. The third charge was that the attendance register relating to 6 workers, who were actually found working on November 4, 1962, was not produced on demand or shown to the Inspector of of Factories, P. C. Joshi, P. W. 1, when he visited the factory. The whole set of charges is found in the complaint only because formally framed charges are not required by the procedure prescribed by law for summons case trials.

3. The learned Magistrate who tried the case has held that the solitary testimony of the Factory Inspector could not be believed as against the evidence produced by the respondents who alleged that no worker was actually working within the factory when the Factory Inspector visited it. On this ground, the charges for violations of Section 52 and Section 63 of the Act were found not to have been established. In such cases, it is certainly prudent for the Factory Inspector to either obtain, if possible, some statements from persons who are found working and who could be produced at the trial, or to take witnesses with him who could corroborate his version. It is undoubtedly a very difficult task for a Factory Inspector to prove his version as against the statements made by those in charge of the factory supported by the statements made by those who may have been found working inside the factory.

Workers who could depose against their Employers would be, to put it mildly, difficult to find. The trial court emphasized the fact that no one could be expected to work without payment for a whole day. The evidence of payments could only be given by the accused or their employees. The prosecution could have asked the learned Magistrate to summon the relevant account books of the Factory, but it did not do so. The statement made by Amarnath. D. W 2, who was one of the persons said to have been found by the Factory Inspector inside the factory shows that Amarnath did meet the Factory Inspector inside the factory. He, however, alleged that he had gone inside to show the factory to some of his friends although he was on leave on that day. Amarnath was the store-keeper and he stated that he had gone to the store room also on that day. The Factory Inspector stated that he found Amarnath making some entry in the ledger of the store room. The statement of the Factory Inspector relating to facts from which he inferred that 8 workers were actually working inside the factory is not quite so clear that it couldbe definitely held that these persons were actually working inside the factory. In the absence of any more definite evidence, I am not prepared to hold that it is established, beyond reasonable doubt, that 8 persons were actually working inside the factory when they were shown on rest. The facts stated by the Factory Inspector, taken with the admissions of Amarnath, D. W. 2, create a strong suspicion that Ss. 52 and 63 were being violated when the Factory Inspector visited the factory. It would, however, not be safe to convict the respondents merely on facts creating grave suspicion.

4. So far as the violations of Rule 78 read with Section 62 of the Act are concerned, I find that respondent No. 1 K. K. Modi, the occupier, is unable to explain anything as he seems to have left everything to his Manager. He only stated that his Manager will explain every thing. Balwant Singh Birdi, the Manager, respondent No. 2, however, has admitted that the attendance register had not been filled up on November 1. 2, 3 and 4, 1962, as' required by Rule 78, so far as 7 workers are concerned. His explanation was that these entries could not be made immediately because it was the beginning of the month and a number of registers had to be filled up. The explanation given by Shanti Lal, D. W. 1, was that the practice was to take attendance on some 'Kachcha register' before it was copied out in the 'Pucca register'. Under cross-examination, he stated that he had not brought the Kuchcha register with him although he alleged that he had shown the Kuchcha register to the Factory Inspector.

This witness also admitted that he signed the inspection note of the Factory Inspector. The statement of Shanti Lal indicates that he was trying to fill up the 'pucca register' when the Factory Inspector came to the factory and perhaps it was for this reason that entries were not duly filled up with regard to 7 workers only whereas the other entries were already there. This means that probably the other entries were also not made within time. The Factory Inspector stated that no Kuchcha register was shown to him. No such Kuchcha register was mentioned by the Manager who stated that the entries used to be made on the token cards of the workers, and, after looking into these token cards. the entries used to be made in the regular registers. The defence was that the regular attendance registers used to be sent to the office for calculation of wages of the workers at the beginning of the month. The result was that Rule 78 of the U. P. Factories Rules was certainly violated even on the admissions of or on behalf of the accused.

5. Rule 78, whose validity has been challenged by Sri K. C. Agarwala, reads as follows;

'78. (1) The manager of every factory shall keep, legibly written in ink and, if heso desires, separately by departments, a register of workers in Form No. 12 for adults, showing the dates, whether Sundays or week days on which the factory or any department thereof is closed and its employees are not working, the hours of work on each day of all the persons working in the factory, the time of commencing work, the rest period, the time of ending work, the days of absence and the nature of the employment of each person. Entries relating to presence or otherwise of all workers shall be posted groupwise in the register within four hours of the starting time of each working periods of the factory, except on days when workers have been called to work on weekly holidays fixed under Section 52, when such entries shall be made within two hours but the name of each worker shall invariably be shown on the register before he or she is allowed to work in the factory on any day.

(2) The manager shall be responsible for the production, on demand of the register, irrespective of the fact whether he (the manager) is present or not in the factory during an inspection.

(3) If a manager prefers, he may maintain the separate registers in two parts one for each half of the month.

(4) The registers shall be preserved for three years after the close of the year to which they relate.'

The above mentioned rule was made in order to carry out the provisions of Section 62 of the Act which reads as follows-

'62 Register of adult workers. (1) The manager of every factory shall maintain a register of adult workers, to be available to the Inspector at all times during working hours, or when any work is being carried on in the factory, showing-

(a) the name of each adult worker in the factory;

(b) the nature of his work:

(c) the group, if any, in which he is included:

(d) where his group works on shifts, the relay to which he is allotted;

(e) such other particulars as may be prescribed;

Provided that, if the Inspector is of opinion that any muster roll or register maintained as part of the routine of a factory gives in respect of any or all the workers in the factory the particulars required under this section, he may, by order in writing, direct that such muster roll or register shall to the corresponding extent be maintained in place of and be treated as, the register of adult workers in that factory.

(2) The State Government may prescribe the form of the register of adult workers, the manner in which it shall be maintained and the period for which it shall be preserved.'

It was pointed out, on behalf of the respondents, that Section 62(2) of the Act only provides that the State Government mayprescribe the form of the register of the adult workers and the manner in which it shall be maintained and the period for which it shall be preserved. It was contended that Section 62(2) does not authorise the making of a rule showing when and in respect of what the entries should be made as that is already provided for by Section 62(1) of the Act. I am unable to accept this contention. Section 62(1)(e) of the Act provides also for the specification of 'such other particulars as may be prescribed..' I am also of the opinion that the power to prescribe 'the manner' in which the register is to be maintained necessarily includes the power to make provision to ensure that the prescribed mode or manner of maintaining the register is observed. The whole object of legislation which provides for inspection of factories is to ensure the observance of certain rules by those who run and those who ultimately control the factory. Section 83 of the Act must also not be overlooked. It provides:

'83. Power to make rules -- The State Government may make rules directing managers of factories to keep registers containing such particulars as may be prescribed and requiring the registers to be made available for examination by Inspectors.'

The need to make entries within four hours of the starting time of each ordinary work period and within two hours of it on holidays seems to be there to ensure that registers are honestly maintained and that the provisions of Chapter 6 of the Act regulating the working hours of the factory workers, are duly complied with. Socio-economic legislation, with the object of securing social welfare, is not meant to be interpreted narrowly so as to defeat its objects.

6. It is not necessary for me to refer to more than two well known rules of construction of statutes in support of the view I take of the ambits of Ss. 62 and 83 of the Act. The first of these is the well-known 'Mischief Rule' laid down in Heydon's case, (1584) 76 ER 637 where it was observed:

'And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico.'

The second is the well-known rule relating to implied enactment or implied powers which was thus summarised in Craies's 'Treatise on Statute Law' (5th Ed. p. 103):

'If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to inferthat the statute by implication empowers that detail to be carried out.'

7. In fact, there is no need to rely upon anything more than the meaning of the words, 'the manner in which it shall be maintained', used in Section 62(2) of the Act. It is clear that the 'manner' in which the register is to be maintained has to be distinguished from the form of the register as well as from the period for its maintenance. The manner of maintaining the register must also obviously mean something other than the contents of the register which are to be determined by the State Government when it prescribes the particulars the register has to contain. The power to prescribe the particular is to be found in Sections 62(1) and 83 of the Act. Again, the power to require the register to be made available for inspection by the Inspectors is contained in Section 83 of the Act. The 'manner' in which the register has to be kept necessarily refers to, or at least includes, the power to make provision about the time at which the entries have to be made.

If Rule 78 of the U. P. Factories Rules, 1950, prescribing the actual time at which the entries in the register have to be made, were not there, it would be possible to circumvent the provisions of Chapter 6 of the Act by making fictitious entries afterwards. The completion of entries promptly, within the period of time given in the rule, is obviously comprehended in 'the manner' in which the register is to be maintained. Again the requirement that it should be produced on demand by the Factory Inspector is covered by Section 83 of the Act. I mention this because it was also contended that Rule 78 (2), requiring that the manager shall be responsible for the production of the register on demand, was also ultra vires. I am unable to see how any part of the said Rule 78 could be ultra vires. I hold that the whole rule was validly and properly made by the State Government.

8. The learned Magistrate who tried the case held, with regard to the admitted violations of Rule 78 that whatever omissions had taken place on the part of the respondents were due to a practice adopted in good faith. I am afraid there is no room for contending that the violation of the rule was without mens rea or that a practice which was contrary to the rule was adopted in good faith. The rule violated creates what is known as absolute and statutory liability so that the omission to observe the rule is sufficient to constitute the offence whether the person made liable is aware of the violation or not. It is his duty to see that the rule is observed both in spirit and according to its letter.

9. The 'occupier' cannot escape liability by showing that he had left everything to be done by the Manager of the factory. Section 92 of the Act makes both the occupier and the Manager of a factory punishablewith imprisonment for a term, which may extend to three months or with fine, which may extend to five hundred rupees, or, with both, for any contravention of the provisions of the Act or any rule made thereunder. The 'occupier' of a factory is defined as the person who has ultimate control over the affairs of the factory and it also includes the managing agent. The term 'Manager' is defined by the U. P. Factories Rules as 'a person nominated or appointed as such by the occupier of the factory under Section 7 for the purpose of the Act.' Section 7 of the Act requires that the name of the Manager of the Factories must be supplied by the occupier to the Chief Inspector of Factories by a written notice. It is not denied that respondent No. 1 K. K. Modi is the occupier and that Balwant Singh Birdi, respondent No. 2, is the Manager of the factory. Both of them would, therefore, be liable separately for the violation of Rule 78 of the U. P. Factories Rules, 1950.

10. As a result of the above findings arrived at by me, I uphold the acquittal of the respondents from charges for violations of Sections 52 and 63 of the Act, but I hold the respondents guilty for not maintaining the register in the manner required by Rule 78 of the U. P Factories Rules, 1950, in as much as the names of the 7 workmen were not duly entered within time. So far as the other violations of the above mentioned rule are concerned, I do not think that they are established beyond reasonable doubt. The respondents cannot be held guilty, in the absence of a finding that the workmen alleged to have been found working there were actually working, of making incorrect entries or for failure to make entries about the workers not proved to be working. Again, the failure to produce the register on demand has not been proved as the Inspector appears to have obtained and examined the relevant register. He could not obtain any register showing that six workers, alleged to be working, were on duty as the Respondents' case is that they were not on duty. The result is that I find each of the respondents guilty of one violation only.

I also find that while the occupier, the respondent No. 1, pleaded, not incorrectly, that his Manager knew whether the rules had been violated or not, and, as the Manager, Balwant Singh Birdi. respondent No 2, admitted facts constituting one violation of the above mentioned rule, a relatively light fine of Rs 100/- only payable by each of the two respondents would meet the ends of justice for a first offence by each of them. I, therefore, set aside the acquittal of the respondents from the charge for one viola-lation of Rule 78 of the U. P. Factories Rules, 1950, read with Section 62 of the Act and convict both the respondents under Section 92 of the Act and sentence them to pay a fine of Rs. 100/- each, and in default of payment of fine, within a month of thecommunication of the order to the respondents by the trial court, to undergo rigorous imprisonment for a period of fifteen days, The trial Court will call upon the respondents to deposit the fines forthwith.


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