Anna Chandy, J.
1. This Revision Petitioner Abdul Wa-hab, Proprietor of C. A. Abdul Wahab and Co., Mattanchery, was convicted by the District Magistrate, Ernakulam under Section 92 of the Factories Act 63 of 1948 for contravening the following provisions of the said Act and the Travancore-Cochin Factories Rules 1952 : (i) Section 6(1)(a) of the Act and Rule 3 by conducting the factory without the previous sanction of the Chief Inspector of Factories, (ii) Section 6 (1) (d) of the Act and Rule 4 by not applying for registration and obtaining a licence for the Factory and (iii) Section 7 (1) and Rule 12 by not giving due notice to the Chief Inspector of Factories.
2. The prosecution case is that on 15-5-1957 when Pw. 3 the Inspector of Factories visited the premises of Abdul Wahab and Co., he found 29 persons engaged in the manufacturing process (preparing coir products for export). It is therefore alleged that Abdul Wahab and Co., is a factory as defined under the Factories Act and that the petitioner is conducting it without complying with the provisions of the Factories Act. The defence plea is that the company is not a 'factory' in that except for the Manager, Cashier, etc., the rest of the 29 employees found by the Inspector in the company premises are not 'workmen' as contemplated in the Factories Act. The accused's case is that the labourers were not his employees, but were those of an independent contractor Abdul Kader (Dw. 1).
3. The learned District Magistrate repelled the plea holding that Dw. 1 was not an independent contractor, but only a Moopan or an agent for supplying labourers.
4. The main ground urged in revision is that the concern is not a 'factory' as contemplated in the Factories Act and there are no 'workmen' as contemplated by the said Act.
5. Before dealing with the question whether the employees of the contractor can be termed workers as defined in the Act it has to be seen whether Dw. 1 is in fact an independent contractor. The learned counsel for the petitioner contends that the finding of the lower court that Dw. 1 was only an agent for the supply of labour is the result of a misreading of the evidence in the case. I am inclined to agree with the learned counsel. Ext. D1 is the agreement deed executed in 1952 between the petitioner and Dw. 1.
The document defines in clear terms the status and duties of Dw. 1. As the petitioner, a native of Trichirappally, was not in a position to engage labourers for doing certain types of work in the company and as Dw. 1 who was working as a contractor in other companies was in a position to engage enough labourers in carrying out the work, it was agreed that Dw. 1 would carry out the work by employing his own labourers. He would be paid according to a schedule of rates for the work done.
Part of the money would be paid in advance and the rest on completion of the work. It is clearly stated in the agreement that the company has 'nothing to do' with the labourers who are to be engaged and paid by the contractor. Thus the status of Dw. 1 as contemplated by Ext. D 1 is clearly that of an independent contractor. The other evidence adduced in the case is also to the same effect. Pw. 1 an employee swears that the labourers were all paid by Dw. 1 and it was he who used to give instructions regarding their work.
There is also the evidence of Dw. 1 that it Was he who engaged the labourers and that he used to supervise their work and pay their salaries. Apart from Ext. D1 agreement deed, the defence has also produced certain books and vouchers to show that Dw. 1 has been receiving lump sums from the management and the workers used to receive their pay from him. The significance of the evidence described above both oral and documentary has been completely ignored by the learned Magistrate who seems to have been influenced by a statement in the cross-examination of Dw. 1 that he also used to get a labourer's wages.
However a reading of the evidence would show chat he was not acting as a workman of the petitioner, but only doing a type of work at which he was proficient and using his own implements and thereby saving for himself a day's wages. His status was fixed by the terms of the agreement with the petitioner. By that agreement he undertook to carry out certain types of work for the company for payment according to a schedule of rates. It was his responsibility to engage labourers, supervise their work and pay their wages and he was answerable to the petitioner for any loss arising out of the work undertaken to be done by him.
Therefore by the terms of the agreement as well as by his conduct it is seen that the status of Dw. 1 was that of a contractor and not of a Moopan or an agent supplying labour for the company. It is also clear from the evidence discussed above that the labourers found by the Inspector of Factories in the premises of the factory are the employees of the contractor and not of the Company.
6. The other question to be considered is whether the employees of the contractor could be considered 'workers' as contemplated by the Act. This problem was dealt with at length by his Lordship Sankaran, J. (as he then was) in the case reported in Patel v. Inspector of Factories, 1938 Ker LT 161 : (AIR 1958 Kerala 237), and it was held that
'One of the essential conditions to be satisfied to bring a person within the definition of 'worker under Section 2 Clause (1) of the Factories Act is that he must be a person employed directly or through any agency whether for wages or not by the person having ultimate control of the affairs of the concern in which such a person is engaged'.
I am in respectful agreement with the above conclusion as well as the reasoning behind it. A worker has been defined by Section 2 Clause (1) as :
'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 of the manufacturing process;'
In the case mentioned above it was held and correctly, if I may say so, that the word 'a person employed' should be taken to mean 'a person employed by the owner or occupier of the factory.' The reasoning behind this interpretation is as follows :
'It is obvious from the definition that the word 'employed' is used with reference to the person employed and also to the person by whom the employment was made. The word has been used as a transitive verb ..... These different meanings clearly indicate that the word 'employ' is generally used as a transitive verb and it carries with it the idea or the concept of an employee, forming its subject and object. In the definition in Section 2(1) the object of the verb is expressly mentioned as the person employed. Even though the subject is not similarly expressed in the definition, the existence of the subject is implied in the definition and is clearly and definitely indicated by the expression which qualify the word 'employed'. These expressions are 'directly or through any agency' and 'whether for wages or not'. For making an employment directly or through an agency, there must necessarily be an employer. Similarly, for setting the terms of the employment also, whether it is for wages or not, there should be an employer. These qualifying expressions would not have found a place in the definition if the word 'worker' was intended to mean any person actually engaged in work, whether under an employer or otherwise. In defining the word 'worker' the word 'employed' appears to have been deliberately used in its full legal import as carrying with it the idea of having been engaged by the employer. Even though the 'employer' contemplated by the definition is not specified therein it is obvious from the context in which the definition occurs that the employer contemplated is the person who has the ultimate authority over the business carried on in the premises where the workers are employed.'
7. The conclusion that the worker as defined in Section 2 Clause (1) is a person employed by the owner or occupier of a factory gains strength when viewed in the light of the special provisions contained in Section 85 of the Act. That Section provides that:
'The State Government 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--
(i) the number of persons employed therein is less than ten if working with the aid of power and less than twenty if working without the aid of power, or
(ii) 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. (2) After a place is so declared it shall be deemed to be a factory for the purposes of this Act and the owner shall be deemed to be the occupier and any person working therein a 'worker'.
8. The implication of the second part of Sub-section 1 of the above Section is that the provisions of the Act will not apply, except by a special notification, to a manufacturing concern wherein the persons working are not employed by the owner of the concern, but are only working there with the permission of the owner or under an agreement with him. Similarly the latter portion of Sub-section 2 implies that ordinarily it is not every person who works within the premises of a manufacturing concern who can be deemed to be 'worker'.
It is therefore clear that the word 'worker' has been used in the Act in a technical and restricted sense and that a 'worker' as contemplated in Section 2 Clause (1) is a person who is employed directly or through any agency by the owner or the person having ultimate control of the affairs of a manufacturing concern.
9. In the present case the evidence is to the effect that the labourers found working in the premises of the company were not employed by the petitioner either directly or through any agency but were the employees of Dw. 1, an independent contractor; and applying the principle enunciated above these workmen cannot be deemed to be 'workers' as defined by Section 2 Clause (1) of the Factories Act. It therefore follows that Abdul Wahab and Co., is not a Factory as contemplated by the Factories Act and that the petitioner, the owner of the company cannot be held liable for contravening the provisions of the Act.
10. The conviction of the Revision Petitionerunder Section 92 of the Factories Act and the sentenceimposed on him are not sustainable and have to bevacated. They are set aside and the revision petition is allowed. Petition allowed.