1. This is an application in revision from the conviction of the applicant under Section 41(a) of the Indian Factories Act (XII of 1911), sentencing: the applicant to pay Rs, 10, The facts which gave rise to the precaution of the applicant are as follows: The applicant is the proprietor of a factory known as Juggi Lil Kimalpat Ginning and Pressing Mills in cancer, Of the 10th of July 1920 the Inspector of Factories issued a Circular letter to the factories in the Province in the following words:
Sir, I have the honour to ask you to please note that no permission can be given this season to any cotton Ginning & Pressing Factory in which women are employed to work more than 11 hours a day.
2. On the 13th November 1920 the applicant started night work on his Ginning and Cotton Pressing Factory. On the 16th November 1920 ha wrote a letter to the lnspector of Factories to the following effect
Sir, We have the honour to inform you that Messrs, Juggi Lal Kamalpat's Ginning and Pressing Factory, Cawnpore, kept by us, is working at night also from Saturday, the 13th instant, on an extra double shift of labour.
3. On the 18th November 1920 the Inspector of Factories replied as follows:
Sir, With reference to your letter of the 15th November 1920 I have the honour to point out that women are not to be worked at night. They should not be employed before 6.30 A.M. or after 8 P.M.
4. The applicant, it appears, ignored the instructions of the inspector of Factories and continued working his factory both day and night, employing women on the night shifts. The present precaution was started at the instance of the Inspector of Factories. He took up the position that no factory could employ women at night without his permission. Presumably, he was of that opinion on the basis of the provisions of Sections 26 and 27 of Act XII of 1911. Section 21 is as follows:
With respect to the employment of women in factories the following provisions shall apply:
(a) no woman shall be employed in any factory before half-pact five O'clock in the morning or after seven o'clock in the evening (6) no woman shall be employed in any factory for more than 11 hours in one day.
5. Section 27 is to the following effect:
Nothing in Section 24 or in Section 26 shall apply to any woman in any factory for ginning or pressing cotton, in which such number of women are employed as are, in the coition of the Inspector of Factories, sufficient to make the hours of employment of each woman not more than eleven in any one day.
6. Both the Courts below agreed with the contention of the Inspector of Factories and thought that the applicant had no right to employ woman on the night shifts in fact of the warning to him by the Inspector of Factories by his letter, dated the 18th November 1920. The applicant was, therefore, convicted and fined Rs. 10.
7. It is contended on behalf of the applicant before this Court that the conviction is bad in law. Both the Inspector of Factories and the Courts below have misunderstood the provisions of sections 24 and 27 of the Factories Act. It is true that, under Section 24, a woman cannot be employed before half-pact five in the morning and after seven in the evening, and that under Section 27 the Inspector of Factories is authorized to express an opinion with regard to the employment of women in a Ginning Factory, but his opinion is to be given as to the sufficiency of the staff of women working in such factory. Under Section 27 the provisions of sections 24 and 26 of the Act may be rendered inoperative, provided the Inspector of Factories is of opinion that there is no risk that a woman would be likely to work more than 11 hours a day. In case the Inspector is of opinion that there is much a risk, the Manager working women in such prohibited hours is not protected. The Inspector expressed no opinion as to the sufficiency of the staff. His opinion apparently was that no woman should be allowed to work at night, whether the staff was sufficient or insufficient. In my opinion, the applicant has established that he had sufficient staff. However, there is another difficulty for the applicant to get over, and it is this. The employment of women for night work is prohibited under Section 24 of the Factories Act. Under Section 27 the owner of a Ginning Factory may employ women for night-duty provided he gets an opinion from the Inspector of Factories that the staff of women is sufficient. The withholding of such permission on no ground at all may be very unreasonable, as it appears to me to have been in the present case. The Inspector of Factories, without going into the question whether the staff was sufficient, issued a general prohibition which he had no right to do, saying that no woman should be employed for night-duty. It is true that Section 24 does prohibit the employment of women in factories at night. But under Section 27 a concession under certain conditions is made in the case of Ginning Factories. All that the law authorize the Inspector to do in the case of a Ginning Factory is, to express his opinion and not to issue orders. However, as the law stands at present, the employment of women on night duty without getting the opinion of the Inspector of Factories with regard to the sufficiency of the staff was; technically a breach of the law and, therefore, he applicant is guilty. I would, therefore, hold the conviction but reduce the sentence to one pie.
8. I have to add the following remarks to the decision of my learned senior colleague. I think it necessary to note what, in my opinion, the Inspector of Factories should do in cases of this kind n future. Act XII of 1911, prohibits by the provisions of Section 24(a), the employment of women between 7 P.M. and 5 30 A.M. This prohibition is subject to the following exception. Owing, probably, to the fact that cotton must be ginned and pressed within a short time after the crop is ready, the Act permits certain concessions under Section 27. Women are employed largely in Ginning and Pressing Factories. The plant in these factories is limited. The work must be got through in a short time or else the cotton deteriorates. In these circumstances, the penal provisions of Section 24(a) are not to apply to persons employing women in factories for ginning or pressing cotton. The Act here recognises that, to get the work done in time (the plant being limited), it is necessary, as a special case, to allow women to work during prohibited hours. This concession is subject to the condition that the Inspector must first certify that, in his opinion, the number of women employed are sufficient to make the hours of employment of each woman not more than eleven in one day. Those are the words of the section. The drafting is not very happy. The meaning, however, is obvious. The Inspector has to satisfy himself that such a factory is employing a staff of women sufficient in number. If the numbers are insufficient, there is a risk that some will work more than eleven hours a day. Before women can be employed on night work, the proprietor of the factory must obtain a favourable opinion from the Inspector upon this point. It is the duty of the Inspector to give an opinion after proper consideration of the facts. The procedure is dear. The proprietor of the factory wants to work women at night. The factory must be a factory for ginning or pressing cotton. The proprietor cannot employ women between 7 P.M. and 5-30 A.M. unless he first obtains a favourable opinion from the Inspector, The procedure here has been different and requires comment. On the 15th July 1920 the Inspector wrote to the Managers of all Ginning and Pressing Factories requesting them to note that no permission could be given this season to any cotton Pressing Factory, in which women are employed, to work more than eleven hours a day. It was not within his province to grant permission in the matter. It was for him to give an opinion when he was asked to give it. The letter, literally interpreted, states that, if women are employed at any factory, the factory must not work for more than eleven hours a day. Of coerce, the Inspector could not have meant that, because he knew that a factory, whether women are employed in it or not, can work for more than eleven hours a day provided women are not employed between 7 P.M. and 5-30 A.M. and, judging from the Inspector's evidence, he clearly meant something quite different from what the letter said. He stated afterwards that he issued the letter because Ginning and Pressing Factories in the Province had been for several years working women more than eleven hours a day. Why he expected his letter to produce a cessation of such, an evil is not very clear, and it might have been thought that it would have been better for him to have prosecuted any factory which he discovered breaking the law rather than issue a general letter. He stated in his evidence that he wrote the letter, in order that factories might have an opportunity of submitting a system of shifts for his approval. I find it difficult to understand how anybody could have thought of submitting a system of shifts for his approval after mastering its contents. Mr. Parker went on to say in his evidence that, another reason that caused him to take this action was, because as a result of his experience and observation he had learnt that it was a very common thing for a woman to work in one factory by day and another factory by night. The Act, however, provides a remedy in such an event. Under Section 25 no person is allowed to employ or permit to be employed in any factory a woman or a child whom he knows or has reason to believe to have already been employed on the same day in any other factory, It is to be noted that nothing in the provisions of Section 27 affect the provisions of Section 25. What happened has already been stated in the judgment of my learned colleague, Mr. Cocolas, the applicant, being (as the events show rightly) a little apprehensive as to what the Inspector was going to do wrote to him on the 13th November stating that he had started a system of night shifts and asking for the Inspector's approval. He received in reply an order that no woman was to be worked at night. After he received Mr. cocolas letter it was for the Inspector to give an opinion. He did not give an opinion. He admits himself, that he did not check Mr. cocolas figures and that he made no enquiries. The entries in Mr. coclas attendance registers show that he was allowing an ample margin against the overworking of women. His machines required one woman to work each machine. He always allowed an average of more than one woman to work a machine for any shift day or night. I find it very difficult to understand why Mr. Parker should consider Mr. cocolas staff of numbers not sufficient to justify night work by women. There, however, the matter stands. It is clear enough that, as the Act is framed, a proprietor of a factory who wishes to get through urgent work in a limited period, who is ready to make every allowance for the comfort and the well being of his women workers, who in keeping a staff more than sufficient to guarantee any woman being worked for less than the maximum period, is liable to have the whole of his work held up and excessive damage done to his business and the development of an important industry retarded, if the Inspector of Factories refuses to express an opinion when asked to do so, or gives an unfavorable opinion on arbitrary or insufficient grounds. If the proprietor employs women between the hours of 7 P.M. and 5 30 A.M. without obtaining an opinion that his staff is sufficient from the Inspector, even though he is entitled to such an opinion on the merits of the case, he commits an offence under the Act. That is the law which we are at present administering. I agree with my learned colleague that the only proper course in such a case is to impose the smallest penalty known to the law. I agree that the fine be redued to one pie,
9. The order of the court is that the conviction maintained but the fine is reduced to one pie.