1. The only point urged in this appeal from a decision of the High Court atCalcutta is whether the occupier of a factory is liable to penalty undersection 92 of the Factories Act, 1948 (hereafter referred to as the Act) forthe contravention of the provisions of section 52 of the Act.
2. The appellant is the Managing Director of Jardine Henderson, Ltd.,Calcutta, who are the managing agents of the Howrah Mills Company, Ltd., ofRamkristopur, District Howrah and as such 'occupiers' of the Millswithin the definition of the term contained in section 2(n) of the Act. One J.P. Bell was the Manager of the Mills in June, 1957. Both the appellant and Bellwere charged with an offence under section 92 of the Act read with section 52.It would appear, however, that during the pendency of the trial the Manager waspermitted to proceed to England and the prosecution continued against theappellant alone. He was convicted of the offence and sentenced to pay a fine ofRs. 400/- by the Sub-Divisional Magistrate, Howrah. His appeal therefrom wasdismissed by the Sessions Judge, Howrah. Similarly, the revision applicationpreferred by him before the High Court was also dismissed. However, the HighCourt granted him a certificate to the effect that the case was fit for appealto this Court and that is how the matter has come up before us.
3. Reliance was placed before us on behalf of the appellant upon thedecision in State Government of Madhya Pradesh v. Maganbhai Dasaibhai A.I.R.1954 Nag. 41. to which I was a party in support of the contention that where aduty is cast upon a Manager of a factory to perform a particular act hisomission to do so will not render the occupier. According to the learnedcounsel the omission of the appellant is that under clause (b) of sub-section(1) of section 52 of the Act a duty is cast upon the manager of the factory togive a notice to the appropriate authority of a change in the weekly holidayfrom the first day of the week to any other day and not upon the occupier.According to learned counsel the omission of the manager to give such noticewould not render the occupier liable in any way unless it is shown that therewas any connivance on his part of a breach of duty by the manager. This, it iscontended, must necessarily imply that unless the occupier had the mens rea tocontravene the provisions of section 52(1) of the Act he would not be liablefor the contravention. In the absence of any evidence to the effect that theappellant knew of the omission and yet connived at it his conviction andsentence ought, therefore, to be quashed.
4. Sub-section (1) of section 52 reads thus :
No adult worker shall berequired 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 holidayfor a whole day on one of the three days immediately before or after the saidday, and
(b) the manager of the factoryhas, before the said day or the substituted day under clause (a) whichever isearlier, -
(i) delivered a notice at theoffice of the Inspector of his intention to require the worker to work on thesaid day and of the day which in to be substituted, and
(ii) displayed a notice to thateffect in the factory :
Provided that no substitutionshall be made which will result in any worker working for more than ten daysconsecutively without a holiday for a whole day.'
5. The opening words of this sub-section indicate a prohibition fromrequiring or permitting an adult worker to work in a factory on the first dayof the week. The prohibition is, however, lifted if steps are taken under cls.(a) and (b) of that section. A perusal of clause (b) makes it abundantly clearthat what is required to be done thereunder, that is to say, to give anddisplay a notice is only for the purpose of securing an exemption from theprohibition contained in the opening part of section 52 of the Act. Clause (b)cannot, therefore, be likened to some other provisions of the Act which imposea positive duty upon the Manager to do something. The prohibition contained inthe opening words of this sub-section is general and is not confined to theManager. It would, therefore, follow that where something is done in breach ofthe prohibition enacted by sub-section (1) of section 52 both the Manager aswell as the occupier will be liable to the penalties prescribed in thatsection.
6. We may also point out that exemption from compliance with the provisionsof section 52 was refused by the Chief Inspector of Factories as would be clearfrom the second para of his reply dated April 8, 1957 to the Manager. It runsthus :
It is, however, pointed out that instead ofemploying workers of C Shift from Sunday evenings, it would be advisable toemploy them on Saturday evenings. The work done by these workers after midnighton Saturdays which would be continued up to the following morning will beconsidered towards the work done on Saturdays. In that case, submission ofnotice under section 52 of the Act would not be necessary.'
7. That being the position, we would have had an occasion to considerMaganbhai case A.I.R. 1954 Nag. 41. if it were the appellant's case that theweekly holiday had been altered without his knowledge or consent. But that isnot so. Moreover, there is ample material to show that what the manager did waswithin the full knowledge of the appellant and, presumably, was also with hisconsent. In this connection we may point out that on January 18, 1957 theManager of the Mills sent a letter to the Chief Inspector of Factories whichruns thus :
HOWRAH MILLS COMPANY LTD.
Howrah, West Bengal,
18th January, 1957.
Ref. No. G.12/4968
The Chief Inspector of Factories,
New Secretariat Building, Calcutta.
We request your permission tooperate the batching to winding departments in No. 1 Mill, as shown on theattached sheet with effect from Sunday the 27th January, 1957.
An early reply would beappreciated.
It will be noted that all shiftswill then work 48 hours per week.
Sd/- J. P. Bell
8. A copy of this letter was sent to M/s.Jardine Henderson Ltd., Calcutta ofwhich the appellant is admittedly the Managing Director. From the letter of thesame date addressed to the Manager by the General Secretary of Howrah Jute MillsKarmachari Sangha it would appear that the workers categorically refused towork according to the schedule proposed by the Mill Manager. The Sangh,however, proposed alternative working hours for the 'C' shift andthere it is suggested that the workers would work on Sunday from 8.30 P.M. to6.00 A.M. This schedule was also accepted by the National Union of Jute Workersto which some of the workmen in the Mills belong. This would appear from theletter of its Joint Secretary, dated January 21, 1957. On February 5, 1957 theMill Manager wrote another letter to the Chief Inspector of Factoriesrequesting for approval of the new Schedule of working hours. It may bementioned that even in the original schedule of working hours which is appendedto the letter of January 18, 1957 by the Mill Manager the starting time of thefirst shift was also 8.30 P.M. on Sunday. On February 9, 1957 the ChiefInspector of Factories asked the Mill Manager to forward the resolution of theWorks Committee of the Factory or other documents to show that the workers hadagreed to work in the factory at 8.30 P.M. on Sundays. The Manager's reply toit was as follows :-
Re : Treble shift working in No.1 Mill.
With reference to your letter No.818 dated 9th February 1957 we forward herewith as desired by you two originalletters with one true copy of each from the General Secretary of Howrah (Jute)Mills Karmachari Sangha and Joint Secretary of National Union of Jute Workersrequesting the management to adopt the existing working hours of the'C' shift in No. 1 Mill.
We trust this will be found to bein order and would request you to kindly return the original letters after yourperusal.
9. A copy of this letter was also sent to M/s. Jardine Henderson Ltd. Thefact that copies of letters of January 18, 1957 and February 18, 1957 were sentto Jardine Henderson Ltd., would fix the occupier i.e., the appellant beforeus, with the knowledge of what the Manager had proposed to do. Therefore, quiteapart from the fact that as the Managing Director of Jardine Henderson Ltd. whowere themselves the Managing Agents of the Howrah Mills, the appellant must bedeemed to have known what was being done by the Manager of the Mills. We havepositive evidence of the fact that the Manager had apprised him of what he wasproposing to do. The appellant took no steps to restrain the Manager fromputting the new schedule in operation which was in itself in violation of theopening words of section 52. We may further point out that what the provisionsof section 52(1)(a) and (b) permit is to grant exemptions to specified workmenfrom the operation of the prohibition enacted in section 52 from working infactories on weekly holidays. No general permission can be granted under cls.(a) and (b) of sub-section (1) of section 52 for altering the day of the weeklyholiday so as to cover all the workmen. Therefore, upon the proper constructionof the provisions it is clear that whenever workers are required (or arepermitted) to work on a weekly holiday the specific permission of the ChiefInspector of Factories in respect of each and every worker who is required towork on such a day should be obtained. That being the provision of law theoccupier must be deemed to have known it. Being duly apprised of the fact thatthe Mill Manager was seeking to start the 'C' shift from 8.30 P.M. OnSunday without specifically mentioning the names of those workmen who had towork in that shift he was doing something which was not within the purview ofcls. (a) and (b) of sub-section (1) of section 52. Of this fact the occupierhad actual knowledge and, therefore, he must be held guilty of thecontravention of the provisions of section 52 of the Act.
The appeal is, therefore, dismissed.
10. Appeal dismissed.