1. This is an appeal by the Provincial Government against an order of a Magistrate of the first class at Delhi, acquitting the repondent of offences under Sections 84 and 86 of the Factories Act, 1984.
2. On 26th February 1946, Mr. N.R Mohindra, Inspector of Factories, inspected the factory known as Latin Press Limited, Delhi, of which the respondent K.S. Abdul Latif is the managing Director. He found (a) that the factory had not been provided with First Aid appliances; (b) that two workers had been allowed to work for more than 54 hours during the week ending with 9th February 1946; and (c) that one worker had been allowed to work for more than ten hours on 3rd, 4th, 9th, and 17th February 1946, and another worker had been allowed to work for more than ten hours on 9th February 1946 As a result of the prosecution which followed K.S. Abdul Latif was convicted under Section 32(v) of the Factories Act for having failed to provide First Aid appliances in contravention of the provisions of the said section and sentenced to pay a fine of Rs. 30. While acquitting him of the charges under Sections 34 and 86 of 4he said Act the learned Magistrate observed as follows:
however as resards the extra work done by some of the workers in this factory, the Inspector of Factories has admitted that the workers were paid for that extra work. It is quite in accordance with Section 47 of the Factories Act and hence it does not constitute any offence. So this charge fails against the respondent.3. The first question which falls to be deter, mined in this appeal is whether certain workers were in fact allowed to work in the factory in excess of the periods specified under the appropriate provisions of the Factories Act. Mr. Mohindra has come into the witness box to specify the number of workers who were required to work overtime and the dates on which they were so required The respondent was asked whether the allegation made by Mr. Mohindra was correct. Instead of stating clearly that it was not, the took refuge under the convenient phrase 'It is not admitted' No registers were produced in Court from which it could be seen whether the workers were or were not allowed to work overtime. Mohammad Karamat Ullah Usman manager of the Latifi Press, who appeared for the defence declared:
We do not get extra work from the workers so far as possible. Even if it so happens by chance they are paid remuneration therefor.4. The evidence of the Inspector which stands unrebutted on the record makes it quite clear that certain employees were made to work over, time although they were paid extra remuneration for the work done by them.
5. Assuming for the sake of argument that the employees were given extra pay for the work done by them, the question arises whether the respondent has not contravened the provisions of Sections 84 and 86 of the Factories Act. Section 84 provides that no adult worker shall be allowed to work in a factory for more than 64 hours in any week, or, where the factory is a seasonal one, for more than 60 hours in any week. Section 86 enacts that no adult worker shall be allowed to work in a factory for more than ten hours in any day. These sections are, however, subject to the provisions of Sub-section (2) of Section 44 of the said Act, according to which the Provincial Government, or subject to the control of the Provincial Government the Chief Inspector, may by written order exempt, on such conditions as it or he may deem it expedient, any or all of the adult workers in any factory from any or all of the provisions of Sections 34 to 40, on the ground that the exemption is required to enable the factory or factories to deal with an exceptional press of work. The language of the sub-section makes lit quite clear that before a person can be required to work in a factory in contravention of the provisions of Sections 34 to 40 of the Factories Act, the manager of the factory must establish to the satisfaction of the Court that he has been exempted from the provisions of the said sections by a written order of the Provincial Government, or that of the Chief Inspector of Factories; The manager of a factory cannot require his employees to work overtime unless he has obtained the necessary permission from the appropriate authorities. The fact that he has paid extra remuneration under the provisions of Section 47 is, in my opinion, no defence at all to a Charge under Sections 84 and 86 of the Factories Act read with Section 60 of the said Act. The provisions of Section 47 are dearly, subject to the provisions of Sub-section (2) of Section 44 of the Act. It could never be in the contemplation of the framers of the statute that the manages of a factory should be at liberty to make his employees work overtime without obtaining the Sanction of the appropriate authority. Had the Legislature intended that the manager of a factory should be at liberty to make his employees work for periods in excess of the periods specified in the statute on condition only that extra wages should be paid to them for the extra work done, it would have been completely unnecessary for it to provide in Section 44 that exemptions can be allowed only by the Provincial Government, by subject to the control of the Provincial Government, by the Chief Inspector.
6. The prosecution have, in my opinion established doubt reasonable doubt (a) that certain persons were allowed to work in the Latifi Press in excess of the periods specified in Sections 34 and 86 of the Factories Act; (b) that the sanction of the appropriate authority was not obtained as required by Section 44(2) of the said Act; and (c) that they were given extra pay for the extra work done. As the permission of the appropriate authority, was not obtained; the respondent is clearly guilty of having contravened the provisions of Sections 34 and 36 of the Factories Act and is liable to punishment under Section 60(b) of the said Act.
7. For these reasons I would accept the appeal preferred by the Provincial Government, convict the respondent under Section 60(b) of the Factories Act and sentence him to pay a fine of Rs. 100 or in default to undergo a fortnight's simple imprisonment. This sentence will be in addition to the sentence of fine awarded by the Court below in respect of the, contravention of the provisions of Section 32(v) of the Factories Act.