D.N. Roy, J.
1. These two appeals by the State arise out of more or less the same facts and consequently we propose to dispose of both of them by this common judgment.
2. The facts which have given rise to these two appeals lie within a very narrow compass and they may be stated as follows :
On 10-4-1954, Mr. P. C. Joshi, Inspector of Factories, paid a visit to certain premises held by Mohammad Sattar a resident of Ganeshganj within police circle Kotwali in District Mirzapur and discovered that 140 persons were preparing Bidis in those premises. They were not using any power or machinery for the preparation of bidis as was borne out by Mohammed Ibrahim, a witness produced on behalf of the prosecution. Those persons used to take the leaves to their homes and prepare them in the form of containers which they filled up with tobacco on the respondent's premises for which they were paid at the rate of Rs. 1/9/- per thousand.
3. The State contended at the trial that this was a 'Factory' and the persons aforesaid were 'workers' and that since there was a breach of Rule 3 of the U. P. Factories Rules in that Mohammad Sattar did not submit an application in the prescribed form to obtain previous permission in writing either from the State Government or the Chief Inspector of Factories for using the premises as Factory and that as manufacturing process was going on with more than twenty workers, Mohammad Sattar was liable for the breach of that Rule under the Factories Act.
In the other case the State contended that Mohammad Sattar contravened Rule 6/13 of the U. P. Factories Rules in that no application for the grant of licence along with the notice of occupation in the prescribed form was submitted to the Chief Inspector of Factories and manufacturing process was found being carried on without the aid of power by more than twenty workers.
4. Mohammad Sattar's contention, on the other hand, was that this was not a 'factory' and those persons were not 'workers' and that they were only Bidi makers who prepared Bidis at their own houses and came and gave it to him and took their wages by the piece.
5. The learned Magistrate, relying upon a deci-sion of the Bombay High Court in Ramnath Shankar Lal v. State of Bombay, 1953-1 Lab LJ 329, where the facts were almost identical, came to the conclusion that the Bidi makers were not workers within the meaning of Section 2 Clause (1) of the Factories Act and the place of work, consequently, was not a 'factory.' Upon those findings the learned Magistrate acquitted Mohammad Sattar.
6. In the appeals before us it has been contended on behalf of the State that the view of the Magistrate was erroneous.
7. The Factories Act, 1948, defines a 'Factory' to mean :
'Any premises including the precincts thereof .... (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 with or without the aid of power or is ordinarily so carried on.'
8. That the process of making Bidis by twenty or more persons was being carried on was not in dispute. It was also not in dispute that that part of the process which is carried on upon the premises consisted of this, viz., that when the men return to these premises with prepared leaves they put the tobacco into it for which they get Rs. 1/9/- per thousand. What was in controversy was whether these persons were 'workers' as defined in the Act. Now Clause (1) of Section 2 defines 'worker' to mean :
'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-matter of the manufacturing process.'
9. The persons who were making Bidis were making them for remuneration by piece work; but that would not prevent them from coming within the definition of workers because the section specifically uses the words 'whether for Wages or not.' It was contended on behalf of Mohammad Sattar that the word 'employed' in this definition has got the sense, not of being engaged, or occupied, but the sense of a contract of service being established between the workers and the owners or occupier of the factory. There can be no doubt that the word 'employed' has both the meanings stated above.
The only question is which is the meaning which can be ascribed to the word in the definition in Clause (1). In our opinion, it is the latter meaning which should be ascribed to the word in the definition in Clause (1). In order to justify this inference we may refer to Section 85(1) of the Factories Act of 1948. But before we do so we may point out that the definition, in the first instance, was modelled upon Section 152 (1) of the) English Factory and Workshop Act, 1901.
That section wanted to define when a woman young person or child could be said to be employed within the meaning of the Act, and the definition which it adopted was simillar to that which we have, barring minor modifications, except that whereas that section said that if the woman, young person or child worked, she would be deemed to be employed therein, the definition, which was adopted in the Indian Factories Act (as a matter of fact a similar definition would be found in the 1934 Act, which was repealed by the 1948 Act) was to the effect that a person who was employed will be taken as a worker.
10. Section 85(l) of the Indian Factories Act 1948 says that:
''The State Government may, by notification ia the official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on, notwidistanding that the persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with such owner provided that the manufacturing process is not being carried on by the owner only with the aid of his family.'
11. It is when we try to find out why it was deemed necessary to provide by Section 85 of the 1948 Act that the State Govt. may, by notification in the official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on notwithstanding that the persons working therein are not employed by the owner thereof but are working with the permission of, or under agreement with, such owner, that we get a clue to the actual meaning of the word 'employed.'
Now, if we were to accept that the worker in any person who is engaged or kept busy in any manufacturing process, then, if there is any place let, for example, to somebody, and the workers who are e.g. manufacturing Bidis, whether under a contract with, or under a contract of service from the Bidi manufacturer, are more than twenty in number, the premises will necessarily fall within the definition in Section 2 Clause (m) because upon the footing that the word 'employed' means what the learned Government Advocate says it means, there is no provision in the definition of either 'Factory' or 'worker' corresponding to the provision in Section 151 (1) of the English Act, namely, 'and to or over which the employer of the persons employed therein has the right of access or control.'
It is obvious, therefore, that it was thought necessary to include in the Indian Act the provision of Section 85(1) so as to enable Government to declare as a factory even premises where more than twenty persons worked, who were not employed by the owner of the premises, but were working there with the permission of, or under agreement with, the owner, because the meaning which the legislature gave to the word 'employed' in Section 2(1) was that there was a contract of service between the workers and somebody. In that view of the case, the place where Mohammad Sattar was carrying on the business of manufacturing Bidis has not been shown to have been a factory.
All that we know is that the Bidi makers were paid by piece work and could take the materials home for making Bidis. These facts are consistent with there being no relationship of master and servant between Mohammad Sattar and the Bidi makers. We are, therefore, in full agreement with the view expressed in the Bombay decision cited above.
12. Learned Government Advocate cited before us a decision of this Court in State v. Krishna Prasad, 1953 All LJ 491: (AIR 1954 All 44), where in interpreting Section 2(1) of the Factories Act 1948 regarding the meaning of 'worker' it was held that that section contemplates cases where the persons are either employed directly by the management of the Company for doing the manufacturing process of the company or cases where the Company employs some agency in order to get employment of labour for itself, labour which is directly used in the process of manufacture which the particular company undertakes; and that where a contractor enters into a contract with a factory and undertakes to do an independent act of manufacture and employs persons to complete the work, such persons cannot come within the definition of 'worker' given in Section 2(1) of the Act.
In that case in considering the scope o Section 52 of the Factories Act, it was held that only such workers alone are contemplated by that section over whom the particular employer has control, not only in the matter of taking work from them, but also in the matter of their employment, leave, holidays etc., for if that had not been so the legislature could not have made an employer responsible in the event of there being a breach in regard to lack of substitution of a holiday for a Sunday in the event of the worker being made to work on a Sunday. That decision instead of helping the State helps, in our opinion, the respondent to a very considerable extent.
13. In the view that we have taken the place where Mohammad Sattar was carrying on business of manufacturing Bidis has not been shown to have been a factory. Consequently the decision of the trial Court in both the cases was correct.
14. There is no force in these two State appeals and we accordingly dismiss them.