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State Vs. Baijnath Balsarai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1962CriLJ417; (1961)GLR717
AppellantState
RespondentBaijnath Balsarai
Cases ReferredProvincial Government v. Chapsi
Excerpt:
- - it was pointed out by the respondent that overtime work had been taken from the workers in the combing department owing to exceptional circumstances which arose by reason of delay in the arrival of stocks of dyed tops imported from, british isles and that if overtime work had not been taken join the workers working in the coming department, it would not have been possible' to keep the factory working and that would have adversely affected the working of both the spinning and weaving departments and consequently the working of the other departments. lastly it was argued by mr-patwari that even if there was any contravention of the provisions of section 63, the respondent could not be held guilty of an offence under section 92 inas1-mueh as the respondent had acted in good faith.....p.n. bhagwati, j.1. these three appeals involve common questions and will, therefore, be disposed of by a single judgment. the facts involved in the appeals are identical and it will, therefore, be convenient to set out the facts of only one of the appeals, namely, criminal apeal no. 212/1960.2. the respondent is the manager of shree digvijay woollen mills ltd., jamnagar. the factory of the company is situate in jamnagar and is governed by the provisions of the factories act. 1948. it is common ground that at the material time a notice of periods of work for adults was displayed and correctly maintained in the factory of the company as required by section 61. the notice showed 7-00 a.m. to 11-00 a.m. and 11-30 a.m. to 3-30 pm- as the periods of work for adults wording in the first shift......
Judgment:

P.N. Bhagwati, J.

1. These three appeals involve common questions and will, therefore, be disposed of by a single judgment. The facts involved in the appeals are identical and it will, therefore, be convenient to set out the facts of only one of the appeals, namely, Criminal Apeal No. 212/1960.

2. The respondent is the Manager of Shree Digvijay Woollen Mills Ltd., Jamnagar. The factory of the Company is situate in Jamnagar and is governed by the provisions of the Factories Act. 1948. It is common ground that at the material time a notice of periods of work for adults was displayed and correctly maintained in the factory of the Company as required by Section 61. The notice showed 7-00 a.m. to 11-00 a.m. and 11-30 a.m. to 3-30 pm- as the periods of work for adults wording in the first shift. The complainant, who is the Inspector of Factories, received a letter dated 8th June 1959 from the Joint Secretary, Digyijay Woollen Mills Kamdar Mandal, pointing out inter alia that though the time of work of the workers working in the first shift in the factory of the Company was from 7-00 A.M. to 3-30 P.M., one hour's more work was being taken from the workers in the combing department every day and that work at the rate of nine hours per day was thus being taken from the workers resulting in 54 hours work per week instead of 48 hours work- On receipt of this information from the Joint Secretary of the Digvijay Woollen Mills Kamdar Mandal the Inspector of Factories addressed a letter dated .10th June 1959 to the respondent requesting the respondent to explain why the workers working in the combing department of the Factory of the Company were made to work for nine hours per day and 54 hours per week during the period 20th April 1959 to 31st May 1959. It appears from the evidence that the Inspector of Factories visited the factory of the Company on 28th June, 1959 and found that three workers employed in the factory of the Company namely, Hari Raghunath, Himat-singh Meghubhai and Chhagan Badha had worked overtime from 3.30 P.M. to 4.30 P.M. on various. dates in the month of May 1959. The Inspector of Factories thereafter received a letter dated 301B June 1959 from the respondent in which the respondent pointed out to the Inspector of Factories the circumstances in which the workers employed in the combing department had worked overtime. It was pointed out by the respondent that overtime work had been taken from the workers in the combing department owing to exceptional circumstances which arose by reason of delay in the arrival of stocks of dyed tops imported from, British Isles and that if overtime work had not been taken Join the workers working in the coming department, it would not have been possible' to keep the factory working and that would have adversely affected the working of both the spinning and weaving departments and consequently the working of the other departments. The respondent explainer that for the overtime work taken from the workers employed in the combing department, extra wages had been paid in accordance with the provisions of Section 59 and that the respondent was under the bona fide impression that if extra wage:; were paid as required by Section 59, there was no legal bar against taking of overtime work from the workers and it was under that bona fide impression that the respondent had taken overtime work from the workers employed in the combing department. These facts would not have been ordinarily relevant and we would not have set out the same in detail, but an argument has been advanced by Mr. Patwari, the learned advocate on behalf of the respondent, which is founded on the premise that the respondent acted bona fide in taking overtime work om workers and it is, therefore, necessary to set out these facts in order to appreciate the argument urged by Mr. Patwari. It appears that the Inspector of Factories again visited the factory of the Company on 15th September 1959. A complaint was ultimately filed by the Inspector of Factorie'. against the respondent on 17th September 1959, charging the respondent with having committed an offence Under Section 92 read with Sec- 53 in so far as the respondent had taken overtime work from Hari Raghunath. It may be mentioned that two further complaints were also filed by the Inspector of Factories against the respondent for offences under Sec- 92 real with Section 63 do so far as the respondent had taken overtime work from Himatsinghi Megubhai and Chhagan Badha. It is these three complaints which have given rise to the present appeals before us.

3. The prosecution ease against the respondent was that by taking Overtime work for one hour from 3-30 P-M- to 4-30 P.M. on various dates in May ,1959, from Hari Raghunath, the respondent contravened the provisions of Section 63 inasmuch as the respondent required or allowed Hari Raghunath to work in the factory of the Company otherwise than in accordance with the notice of periods of work for adults displayed in the Factory. The respondent contended that the complaint was filed beyond the period prescribed by Section 106 and that the Court was, therefore, not entitled to take cognizance of the offence alleged in the complaint. The case of the respondent was that the alleged commission o[ the offence came to the knowledge of the inspector of Factories oh or about 8th June 1959, when he received the letter dated 8th June 1959, from the Joint Secretary, Digvijay Woolen Molls Kamdar Mandal of which we have made mention before and that the complaint should, therefore have been filed within three months of the said date but the complaint was actually filed on 17th September 1959 and was, therefore, not within the time prescribed by Section 106. On the merits of the charge against him, the respondent contended that for the overtime work taken from Hari Raghunath, Hari Raghunath had been paid wages at the rate of twice his ordinary rate of wages as provided by Section 59 and that there was, therefore, no contravention of any provisions of the Factories Act. 1948-The contention of the respondent was that if a Manager or occupier of a factory paid extra wages for overtime work in accordance with the provisions of Section 59', he would be entitled to take Overtime work from a worker working in the factory. The respondent contended that under the circumstances he had not committed any offence Under Section 92 read with Section 63 and was entitled to be acquitted.

4. The case was tried by the Judicial Magistrate, First Class, Jamnagar. The, learned Magistrate held that it was only On 28th June 1959 when the Inspector of Factories visited the factory of the Company that the alleged commission of the offence came to his knowledge and that the complaint filed by him was, therefore, not beyond the time prescribed by Section 106. On the merits of the case, however, the learned Magistrate came to the conclusion that the respondent had paid extra wages to Hari Raghunath for the overtime work taken from him in -accordance with the provisions of Section 59 and that the respondent was, therefore, not guilty of any contravention of the provisions of Section 63. The learned Magistrate accordingly acquitted the respondent. Being aggrieved by this order of acquittal, the State has filed Criminal Appeal No. 212 of 1960 before us. Criminal Appeals Nos. 213 of 1960 and 214 of 1960 have been filed in respect of the other two complaints relating to overtime work taken from Hanut singh Meghubhai and Chhagen Badha.

5. Mr. J. R. Nanavaty, the learned Assistant Government Pleader appearing on behalf of the State, attacked the Orders of acquittal passed by the learned Magistrate on the ground that they fire based on a misconstruction of the provisions of the Factories Act. 1948. He contended that Section 59 which deals with the subject of payment of extra wages for overtime work done by a worker in a factory has nothing to do with the subject dealt with by Section 63. According to him, Section 63 comes into play as soon an it is found that a worker in a factory is required or allowed (o work Otherwise, than in accordance with the notice of periods of work for ,adults displayed in the factory. For the purpose of determining whether there any contravention of the provisions of Section 63, it is entirely irreverent to consider whether the worker has worked in the factory for more than nine hours in a day or for more than forty-eight hours in a week Or whether he has been paid extra wages for such overtime work. lie. argued that in die present case there was admittedly a notice of periods of work for adults displayed in i the factory and the notice showed the periods of work as 7-00 A. M. to 11. 00 A. M. and 11. 30 A.M. to 3-30 P.M. for the first shift and since the workers were required or allowed to work in the factory from 3-30 P.M. to 4-30 P. M. in addition, to the periods of work mentioned in the notice, there was contravention of the provisions of Section 63 and the respondent was therefore liable to be convicted for the offence Under Section 92 read with Section 63. In answer, Mr. Patwari, the learned advocate on behalf of the respondent raised the following contentions. In the first instance Mr. Patwari contended that the finding of the learned Magistrate that the complaint was filed within the period prescribed by Sec: loft was erroneous and relying on the letter dated 8th June 1959, addressed by the Joint Secretary of the Digvijay Woollen Mills Kamdar Mandal to the Inspector of Factories, lie submitted that the alleged commission of the offence came .to the knowledge of the Inspector of Factories on or about 8th June 1959, when the Inspector of Factories received the letter and that the period of three months provided by Section 106 should therefore, be computed from the date of receipt of the letter and not from 28th June 1959, when the Inspector of Factories visited the factory of the Company, The second argument advanced by Mr. Patwari related to the construction of Section 63. lie argued that on a true construction of the provisions contained in Sees. 51, 54, 59, 61 and 63, it was open to the respondent to take overtime work from the workers even though taking such overtime work might not l e in accordance with the notice of periods of work displayed in the factory, provided extra wages for such overtime work were paid to the workers in accordance with the provisions of Section 59- The contention was that inasmuch as the respondent had paid extra wages for overtime work to the workers as required by Section 59, the respondent would lawfully take overtime work from the workers and the same did not entail any contravention of the provisions of Section 63- I was also argued by Mr. Patwari that in any event, by reason of Section 70 of the Bombay Shops and Establishments Act. 1948, Section 63 of the Factories Act. 1948, did not apply and the respondent was not prevented by Section 63 from taking overtime work from the workers. Lastly it was argued by Mr-Patwari that even if there was any contravention of the provisions of Section 63, the respondent could not be held guilty of an offence Under Section 92 inas1-mueh as the respondent had acted in good faith under the bona fide impression that he Was not committing any offence and the element of mens rea was absent. In this connection reliance was also traced by Mr. patwari on the provisions of Section 117 and it was argued that Section 117 afforded complete immunity to the respondent inasmuch as the respondent had acted in good faith Mr. Patwari thus contended that the respondent had not committed any offence and was rightly acquitted by the learned Magistrate.

6. Before we proceed to examine the rival contentions of the parties, it would be convenient at this stage to set Out the relevant Section of the Factories Act. 1948, which have a bearing on the determination of the questions arising before us.

51, Weekly hours: No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week.

54. Daily hours : Subject to the provisions of Section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day :

Provided that, subject to the previous approval of the Chief Inspector, the daily maximum specified in this Section may be exceeded in order to facilitate the change of shifts- X X X X59. Extra wages for overtime: (1) Where a worker works in a factory for more than nine hours in any day or for more than fortyeight hours in any week he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages x x x x x

61. Notice of periods of work for adults: (1) There shall be displayed and correctly maintained in every factory in accordance with the provisions of Sub-section (2) of Section 108, a notice of periods of work for adults showing clearly for every day the periods during which adult workers may be required to work.

2. The periods shown in the notice required by Sub-section (1) shall be fixed beforehand in accordance with the following provisions of this section, and shall be such that workers working for those periods would not be working in contravention of any of the provisions of Sec. 51, 52, 54, 55, 56 and 58.

3. Where all the adult workers in a factory are required to work during the same periods, the manager of the factory shall fix those periods for such workers generally.

4. Where all the adult workers in a factory are not required to work during the same periods, the manager of the factory shall classify them into groups according to the nature of their work indicating the number of workers in each group.

5. For each group which is not required to work on a system of shifts, the manager of the factory shall fix the periods during which the group may be required to work.

6. Where any group is required to work on a system of shifts and the relays are not to be subject to predetermined periodical changes of shifts, the manager of the factory shall fix the periods during which each relay of the group may be required to work.

7. Where any group is to work on a system of shifts and the relays are to be subject to predetermined periodical changes of. stilts the manager of the factory shall draw up a scheme of shirts where under the periods during which any relay of tin group may be required to work and the relay which will be working at any time of the day shall be known for any day.

8. The Provincial Government may prescribe forms of the notice required by Sub-section (1) and the manner in which it shall be maintained.

9. In the case of a, factory beginning work after the commencement of this Act. a copy of the notice referred to in Sub-section (I) shall be sent iii duplicate to the Inspector before the day on which work is begun in the factory.

10. Any proposed change, in the system of work in any factory which will necessitate a change in the notice referred to in Sub-section (1) shall be notified to the Inspector in duplicate (before the change is made, and except with the previous sanction of the Inspector, no such change shall be made until one week has elapsed since the last change.

x x x x x63. Hours of work to correspond with notice Under Section 61 and register Under Section 62 No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory.

x x x x x65- (1) x x x x x x

2. 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 expedient, any or all of the adult workers, in any factory or group or class or description of factories from any or all the provisions of Sections 51, 52, 54 and 56 en the ground that the exemption is required to en bl1' the factory or factories to deal with an exceptiona press of work.

x x x x x106. Limitation of prosecutions: No Court shall take cognisance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which th' alleged commission of the offetioe came to the knowledge of an Inspector:

Provided that where the offence consists of disobeying a written order, made by an Inspector complaint thereof may be made within six months of the date of which the offence is alleged to have been committed. x x x x x117. Protection to persons acting under this Act: No suit, prosecution or other legal proceeding shall lie against any person for anything which is in go-d faith done or intended to be done under this Act.

7. The .first Contention urged by Mr. pitwari relates to the question of limitation. This contention is in the nature of a preliminary objection and if it is well founded, it would dispose of tile entire prosecution case against the respondent. We arc, however, of the opinion that there is no substance in this contention. Section 106 provides that the complaint in regard to any offence punishawn wider the Act should he made within three months of the date on which the alleged commission of the offence comes .to the knowledge of the Inspector of Factories. The quest-on is when can the commission of the present offence Under Section 92 read with See. 63 be said to have come to the knowledge of the Inspector of Factories? Mr. Patwari strenuously argued that the commission of the offence came to the knowledge of the Inspector of Factories when he received the letter dated 8th June 1959, from the Joint Secretary, Digvijay Woollen Mills Kamdar Mandal. He contended that all the facts necessary to constitute the offence were brought to the notice of the Inspector of Factories and the Inspector of Factories came to know as a result of the information conyryed in the letter that .the present offence had been committed by the respondent. The contention of Mr. J. R. Nanavaty, however, was that all that the Inspector of Factories received as a result of the letter was information going to show that the present offence was committed, but that such information did not constitute knowledge and that it was only when the Inspector of Factories visited the factory and inspected the records on 28th June 1959 that he could be said to have acquired knowledge about the commission of the present offence. Mr. J. R. Nanavaty relied upon an unreported judgment of the High Court of Judicature at Allahabad in Criminal Misc. No. 820 of 1955. That judgment does draw a distinction between 'knowledge' and 'information' and holds that when the Inspector of Factories receives information regarding the commission of an offence, it does not necessarily mean that he acquires knowledge that the offence has been committed if he does not believe the information to be correct or wants to verify the truth before acting upon it, he does not treat it as knowledge and it is only when he verifies the information by visiting the factory and finds that in his opinion an offence has been committed that' he can be said to have acquired knowledge of the commission of the offence. We do not think it necessary in the present case to decide whether the Inspector of Factories can be said to acquire knowledge of the commission of the offence when he receives information regarding the commission of the offence or he can be said to acquire such knowledge only when he visits the factory for the purpose of verifying the information and finds for himself that the offence has been committed. Even assuming that the Inspector of Factories could acquire knowledge of the commission of the offence merely by information received from others, we do not think that in the present cast; it can be said that the Inspector of Factories acquired knowledge of the commission of the offence Under Section 92 read with Section 63 on receipt of the letter dated 8th June 1959. The only information conveyed by the letter was that the time of work of the workers working in the first shift ff the factory was from 7-00 A. M. to 3-30 P. M- and that d one hour's more work was taken from the workers working in the combing department of the factory. All the facts necessary to constitute contravention of Section 63 were not brought to the notice of tile Inspector of Factories. la order that there should be a contravention of the provisions of Section 63, it is necessary that the notice of periods of work should be displayed in the factory for it is only in reference to such notice that Section 63 define the obligation of the occupier or Manager of the factory. Section 61 requires that the hours of work for which a worker is inquired Or allowed to work in a factory should correspond with the notice of periods of work displayed Under Section 61.. The notice of periods of work is, therefore, an important ingredient of the offence- This particular ingredient, we find, was not brought to the notice of the Inspector of Factories. The facts which were brought to the notice of the Inspector of Factories by the letter did not constitute any contravention of the provisions of Section 63. It was only when the Inspector of Factories visited the factory on 28th June 1959 and found that a notice of periods of work was displayed in the factory and that notice showed 7-00 A. M. to 11-00 A. M. and 11-30 A. M. to 3-30 P. M. as periods of work, that the commission of the offence could be said t0 have come to the knowledge of the Inspector of Factories. All the ingredients which constitute contravention of Section 63 came to the knowledge of the Inspector of Factories only on 28th June 1959 when he visited the factory of the Company and it is with reference to that date that the period of three months prescribed by Section 106 should, therefore, be. computed for the purpose of determining whether the. complaint was filed within time. The contention of Mr. Patwari that the complaint was barred by the provisions of Section 106 must, therefore, be negatived.

8. That takes us to .the question of construction of the provisions of Section 63. The argument which found favour with the learned Magistrate and which was strenuously urged before us by Mr. Patwari on behalf of the respondent was that Section 63 must be read and harmonised with Section 59 and if that is done, it must lead to the, conclusion that a worker can be required or allowed to work in a factory in excess of the periods of work specified in fin-notice displayed Under Section 61 provided he is r extra wages for such overtime work in accordance with the provisions of Section 59. It is a little difficulties to follow this argument. In support of this argument our attention was invited to Sections 51 and ; but we fail to see how these sections at all help us in interpreting Section 63. Section 63 occurs in Chapter VI which is headed 'Working Hours of Ad Us'. This Chapter contains a fasciculus of sections dealing with working hours of adults in a factory and starts with Section 51 and ends with Section 66. Section 51 provides the: maximum weekly hours for which, an adult worker can be required or allowed to work in a factory and that maximum is fixed at 48 hours per week. Sections 52 and 53 deal with Weekly Holidays and Compensatory Holidays with which we are not concerned in the present appeals. Then comes Section 54 which deals with the subject of daily hours and provides that subject to the provisions of Section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day.' It will thus be seen that maxima are provided both in reference to the daily hours of work as also in reference to the weekly hours of work and the limits set by these maxima are not to be transgressed except in accordance with the provisions of Section 65(2) which empowers the State Government or, subject to the control of the State Government, the Chief Inspector by written order to exempt any or all of the adult workers in any factory from the provisions of Ss-. 51 and 54. We then find Section 50 which provides that where a worker works in a factory for more than nine Hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages. This Section deals only with the question of payment of extra wages for overtime work which may be done by a worker in a factory; it does not authorise the occupier or Manager of a factory to require or allow a worker to work for more than nine hours in any day or for more than forty-eight hours in any week in contravention of the express prohibitions laid down in Sections 51 and 54. Since the State Government or, subject to the control of the State Government, the Chief Inspector has been given power to exempt any factory or group or class or description of factories from the provisions of Sections 51 and 54, there is a possibility that in. the case of factories in respect of which such exemption has been granted, the worker may be required or allowed to work for more than nine hours in any day or for more than forty-eight hours in any week and in such a case the worker would be entitled to wages at the rate of twice his ordinary rate of wages in respect of overtime work done by him i.e., in respect of work done by him for the period exceeding nine hours in any day or forty-eight hours in any week. It| is in reference to the maximum limits of hours of work set by Sections 51 and 54 that the provision for payment of extra wages for overtime work is made in Section 59. Then comes Section 61. Section 61 deals with an entirely different subject matter. It has nothing to do with the maximum hours of work for which a worker can be required or allowed to work in a factory- All that Section 61 requires is that there should be displayed and correctly maintained in every factory a notice of periods of work for adults showing clearly for every day the period during which adult workers may be required to work. The periods of work are to be fixed beforehand and should be such that workers working for these periods would not be working in contravention inter alia of the provisions of Sections 51 and 54. Within the limits set by Sections 51 and 54, the occupier or Manager of a factory can fix any periods of work during which adult workers may be required or allowed to work in the factory provided of course there is no contravention of any other provisions of the Act. The periods of work which are once fixed can be altered in accordance with the provisions of Sub-section (10) of Section 61. If any change is sought to be effected in the periods of work within one week from the date of the last change, the previous sanction of the Inspector of Factories must be obtained and the change must also be notified to the Inspector of Factories before it is made, but if the change is proposed to be made after the expiration of a period of one week from the date of the last change, it is not necessary to obtain any previous sanction of the Inspector and all that is required is that the proposed change should be notified to the Inspector of Factories before it is made. It will thus be seen that the periods of work can be altered by the occupier or manager of a factory so long as there is no contravention of any of the provisions of the Act.

The notice which is required to be displayed and correctly maintained Under Section 61 must show clearly these periods of work during which adult workers' may be required to work- It is in the background of this provision that Section 63 enacts that no adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory. Section 63 requires that the hours of work during which an adult worker may be required or allowed to work in a factory should correspond with the periods of work mentioned in the notice displayed in the factory Under Section 51- 54 an adult worker is required or allowed to work in a factory during hours which do not correspond with the periods of work mentioned in such notice, there would be contravention of the provisions of Section 63- 63 has to be read along with Section 61; both these sections deal with the same subject matter, namely, periods of work during which adult workers may be required or allowed to work in a. factory These sections have nothing to do with the maximum hours of work for which an adult worker may be required or allowed to work in a factory. Section 61 provides that the periods of work must be fixed by the management and a notice showing the periods of work must be displayed and correctly maintained in the factory while Section 63 enjoins correspondence between the hours of work during which adult workers are required or allowed to work in the factory and the periods of work mentioned in such notice. Sections 61 and 63 deal with a totally different subject matter from that dealt with by Sections 51, 54 and. 59. It may be that in a given case a worker may be required or allowed to work in a factory during hours exceeding the periods of work specified in the notice displayed Under Section 61 and there might thus be contravention of the provisions or Section 63 and yet there might be no contravention of the provisions of Sections 51 and 54 so as to attract the applicability of Section 59, We are unable to perceive any inter-dependence between Section 63 and Section 59 and we do not see how possibly Section 59 can control the interpretation of Section 63. Section 59 and Section 63 operate on different areas which do not intersect each other and Section 59 cannot by any canon of construction be read as creating an exception to the rule enacted in Section 63. We cannot, therefore, accept the argument urged by Mr. Patwari that the rigour of Section 63 is in any way mitigated by Section 59 and that a worker can be required or allowed to work in a factory during hours exceeding the periods of work specified in the notice provided ho is paid extra wages for such excess hours Under Section 59. In fact S- 59 does not provide for payment of any extra wages for work done during any period exceeding the periods of work specified in the notice, but provides for payment of extra wages only for over- time work which might be clone beyond nine hours in a day or forty-eight hours in a week. This argument of Mr. Patwari must, therefore, be rejected. The learned Magistrate was clearly in error in holding that inasmuch as the respondent had paid extra wages to the workers for the overtime work taken from them, there was no contravention of the provisions of Section 63.

9. Another argument was advanced by Mr. Patwari and it was based on Section 70 of the Bombay Shops and Establiments Act. 1948. We found it a little difficult to follow the argument, but the sequitur of the argument pressed upon us for acceptance was that by reason of the provisions of Section 70 of the Bombay Shops and Establishments Act 1948, the restriction contained in Section 63 of the Factories Act. 1948, did not apply and the respondent was -entitled, to take overtime work from the workers employed in the factory so long as the workers were paid extra wages for such overtime work in accordance with the provisions of Section 59 of the Factories Act 1948- We fail to see how any such conclusion follows from the provisions of Section 70 of the Bombay Shops and Establishments Act. 1948. Section 70 of the Bombay Shops and Establishments Act 1948, is in the following terms:

70. Nothing in this Act shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the Factories Act. 1948, shall, notwithstanding anything in the said Act. apply to such person.

The argument of Mr. Patwari appeared to be that since Section 70 of the Bombay Shops and Establishments Act. 1948, provides that the provisions of the Factories Act. 1948, shall apply to any person employed in or within the precincts of a factory notwithstanding anything contained in the Factories Act 1948 Section 59 of the Factories Act. 1948 would apply and that would exclude the operation of Section 63 of the; Factories Act. 1948. We are unable to accept this argument. AH that Section 70 of the Bombay Shops and Establishments Act. 1948. provides is that nothing in that Act shall be deemed to apply to any person employed in or within the precincts of a factory and that the provisions of the Factories Act. 1948, shall apply to such person notwithstanding that the said Act may not otherwise by its own force apply to such person. The purpose .and object of enacting Section 70 of the Bombay Shops and Establishments Act. 1948, has been clearly set out in the following observations of the Supreme Court in the case reported in B. P. Hira v. C M. Pradhan : (1959)IILLJ397SC :

Section 70 provides that nothing in this Act ,shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the Factories Act shall, notwithstanding anything in the said Act, apply to such person. This Section consists of two parts. The first part makes it clear that no provision in the Act shall be 'deemed to apply' to the persons specified in ft. The Legilature knew that in fact the Act contain -ed no provision which in terms 01' expressly applies to any such person; but in order to remove any possible doubt it has provided that no provision in the Act shall even by inference Or fiction be seemed to apply to them. In other words this clause is intended to clarify the position that though factory has been defined by Sec- 2(2) of the Act. no provision of the Act is intended to be applied to a factory or employees in it Having clarified this position the second part of the Section extends the application of the Factories Act to the said persons-It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as afraid by Section 2; but apparently the Legislature thought that the same object can be achieved by enacting the second part of Section 70. This part provides that the provisions of the Factories Act shall apply to the persons in question notwithstanding anything contained in the said Act. The said Act contains the provision by which workers are defined Under Section 2, and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applied only to workers as defined and not to employees in factories who are not workers. It is in reference to tins provision that Section 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will apply to persons employed in a factory. The non-obstinate clause in Section 70 thus serves the purpose of clarifying the position that the Factories Act is made applicable to employees in factories and that they are not governed by any of the provisions of the Act. This conclusion is obviously consistent with the policy of the Act. It has itself made provision for the payment of overtime wages to employees in all establishments by Section 63; and it has made applicable inter alia the relevant provisions of the Factories Act in regard to employees in factories. That is the view which the Authority has taken, and in our opinion its validity or correctness is not open to doubt.

The Bombay Shops and Establishments Act. 1948, did not apply to factories, and persons employed in within the precincts of a factory were not entitled to the benefit of wages for1 overtime contained in Section 63 of the Bombay Shops and Establishments Act. 1948. No doubt Section 59 of the Factories Act. 1948, enacted a provision for payment of extra wages for overtime work to workers working in a factory but all persons employed in or within the precincts of the factory might not be workers within. the meaning of the definition of 'Worker' contained in the Factories Act. 1948, and the provision for payment of extra wages for overtime work contained in Section 59 of the Factories Act. 1948, would not, therefore be available for the benefit of such persons. The Legislature, therefore, enacted is Section 70 of the Bombay Shops and Establishments Act; 1948. that the provisions of the Factories Act. 1948, shall also apply to such persons even though the said Act might not of its own force apply to such persons.

The purpose and object of Section 70 of the Bombay Shops and Establishments Act. T948, was clearly to confer the benefit of wages for overtime work even On those persons who were not workers within the meaning of the said expression as used in the Factories Act 1948, and who were, therefore, not entitled to the benefit of the provision for wages for overtime work contained in Section 59 of the 1 said Act- The Factories Act. 1948, was thus made all embracing and even persons to whom the said Act did not apply were brought within the scope and purview of the said Act. Having' regard to this position, we find it difficult to see how it can be contended that the restriction contained in sec-sion 63 of the Factories Act. 1948. was intended to be done away with by Section 70 of the Bombay Shops and Establishments Act. 1948. We cannot, therefore, accept this argument urged by Mr. Patwari on behalf of the respondent If this is the position there is clearly a contravention of the provisions of Section 63 of the Factories Act 1948, and the respondent being the manager of the factory would be punishable Under Section 92 of the said Act.

10. Mr. Patwari on behalf of the respondent, however, argued that even though there might be contravention of the provisions of Section 63, the respondent could not be held guilty of an offence Under Section 92 inasmuch as the respondent had no mens rea had acted in good faith under the bona fide impression that he was not committing any breach of the provisions of Section 63 so long as he paid extra wages for overtime work to the workers Under Section 59. The argument was twofold. Firstly it was contended that mens rea was an essential constituent of the offence resulting from the contravention of the provisions of Section 63 and that since mens rea was absent in the present case, the respondent had not committed any offence. Secondly, it was argued relying on Section 117 that the respondent had acted in good faith and that no prosecution could, therefore, Ho against the respondent. It is these two arguments that we will now proceed to examine.

11. It is an accepted principle of criminal law that a person cannot be convicted of an offence unless he has committed the overt act with a wrongful or illegal intention: that there must be a mind at fault before there can be a crime. This doctrine is embodied in the maxim actus non-facit rem nisi mens sit rea. Vlcns rea is an essential constituent of a crime and unless mens rea is present there would be no crime. If the accused has an honest and reasonable belief in the existence of facts or circumstance which, if true, would make the act charged against him innocent, the necessary clement of mens rea would be absent and the accused would be entitled to be acquitted. This is no doubt the genera] rule and there U a preemption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act is an essential ingredient in every offence but it is open to the Legislature to provide for offences where the element of mens rea is not required to be present.

The Legislature may expressly or by necessary implication rule out mens rea as a constituent part of a crime- If the Legislature expresses its intention in clear and unambiguous language, them would be no scope for the application of the principle that a person cannot be convicted of a crime unless it is shown not only that he has committed a forbidden act or default but also that a wrongful intention or blameworthy condition of mind can be imputed to him- As a matter of fact the modern tendency in statutes is to decrease the importance of mens rea in crime. As observed by Lord Justice Goddard

with the complexity of modern legislation one knows that there are times when the court is constrained to find that, by reason of the clear terms of an Act of Parliament, mens rea or the absence of mens iea becomes immaterial and that if a certain act is done, an offence is committed whether the person charged knew or did not know of the Act.

In such cases the doctrine of mens rea is displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered. Mr, Patwari cited before us the decision of the Bombay High Court reported in State v- Caulfield Holland Ltd. : (1953)IILLJ458Bom where we find a reference made to the judgment of Mr. Justice-Wright in Sherras v. De Rutzan (1895) QB 918 The cases where the doctrine of mens rea has been held inapplicable have been classified by Mr. Justice Wright in three principal classes:

One is a class of acts which, are not criminal in any real sense, but are acts, which in the public interest are prohibited under a penalty; another class comprehends some, and perhaps all, public nuisances and lastly, there are cases in which, although the proceeding is criminal in form, it, l& really only a summary mode of enforcing a civil right.

In all those cases the liability is absolute and is not dependant upon the existence of mens rea. The presumption of mens rea is displaced either by the clear and unambiguous language of the statute Or in the absence of clear and unarnbiguons language indicating such intention on the part of the legislature, such intention is gathered by examining the object of the statute, the words used, the nature of the duty, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. If we have regard to these principles, it will be clear that mens real is not an essential element in the offence resulting ' form the contravention of Section 63.

12. The Factories Act. 1948, is a piece of social welfare legislation and has been passed for the purpose of improving the conditions of work and ameliorating the lot of workers working in factories. It is a beneficent piece of legislation intended to advance the welfare of workers and remove evils in the working conditions prevalent in factories. There are various provisions enacted :in the Act in the interest of the workers. There are several provisions which are intended for the protection of the workers and the Legislature has considered it essential that the workers should he protected not only against exploitation by the management but also against their own folly and ignorance. The sections in Chapter VI deal with working hours of adults and provide the maximum hours of work during which an adult worker can be required or even allowea to work and also lay down various provisions regarding the hours of work for adult workers.

The acts enjoined by these provisions are not criminal in any real sense but are acts which are prohibited in the interest of the workers in order to promote their interest and lead to healthy conditions of life and work. It is clear that the provisions of Section 63 would fall within the first class of exceptions enumerated by Mr- Justice Wright in (1895) 1 QB 918 (Supra).' The obligation Under Section 63 is in absolute and unqualified terms and if the doctrine of mens rea were introduced, the whole object of providing a restriction such as that contained in Section 63 would be defeated. The obligation contained in Section 63 is an obligation which must be obeyed on pain of penalty for it is only by putting such a construction that the provision can be rendered effective for its avowed purpose which is to ameliorate the lot of workers working in factories. We are, therefore, of the opinion that having regard to the object of the Act and the subject-matter with which it deals, the obligation Under Section 63 is absolute and there is no scope for the application of the doctrine of mens rea.

Mr. Patwari cited before us the decisions reported in Public Prosecutor v. Mangaldas A.I.R. 1958 Andh Pra 79; Superintendent and Remembrancer of Legal Affairs Bengal v. Watson : AIR1934Cal730 and Ranjit Singh v. Emperor A.I.R. 1943 Oudh, 308 and Ranjit Singh v. Emperor A.I.R. 1943 Oudh 311 in support of his contention that in the absence of mens rea no offence can be said to have been committed even if there is contravention of the provisions of Section 63. The decision reported in A.I.R. 1958 Andh Pra 79. is that of a Single Judge of the Andhra Pradesh High Court and we do not find in the judgment any discussion of the question whether the principle of mens rea is applicable in the case of contravention of the provisions of a social welfare legislation like the Factories Act. We find that in that case reliance was placed principally on Section 117 and an independent argument based on the absence of mens rea was riot raised. That decision, therefore, cannot help us in deciding whether mens rea is an essential constituent of the offence resulting from the contravention of the provisions of Section 63; There is also no discussion of this question in the decision reported in : AIR1934Cal730 . In that case it seems to have been assumed that

the law, in general affords protection in the matter of prosecution for commission of offences, to persons acting in good faith.

No argument appear to have been advanced that having regard to the object of the Act and its general scheme there is no scope for the application of the doctrine of mens rea in offences resulting from contravention of the provisions of the Factories Act- The other two cases reported in A.I.R. 1943 Oudh 308 and A.I.R. 1943 Oudh 311 also do not help Mr. Patwari on this point because in both those cases no question was raised as regards the application of the doctrine of mens rea and the only arguments advanced were on the basis of Section 81 of the Factories Act. 1934, which corresponds to Section 117 of the' Factories Act. 1948. These decisions therefore, do not support Mr. Patwari in his present argument. We have on the contrary a decision of a Division Bench of the Nagpur High Court reported in Provincial Government v. Chapsi

Dhanji A.I.R. 1938 Nag 406 which takes the view that mens rea is not an essential element of au offence under the Factories Act and that

it is sufficient in a prosecution under the Factories Act to prove that the accused has infringed the Act or rules under the Act and that it is not necessary to show that the accused intended, to infringe the Act Or the rules.

Apart from this decision reported in A.I.R. 193SJ Nag 4C6 which was cited before us by Mr. J. R. Nanavaty, we find inherent evidence in the various provisions of the Factories Act. 1948, which clearly goes to show that mens rea or blameworthy condition of the mind is not necessary at any rate the case of an offence resulting from the contravention of the provisions of Section 63. In this connection we might refer to Sections 95, 96 and 98 in Chapter X where mens rea has been specifically made an essential constituent of the offences dealt with by those sections. Section 95 prescribes penalty for obstructing an Inspector in the exercise of any power conferred on him by or under the Act or failing to produce on demand by an Inspector any registers or other documents or concealing or preventing any worker in a factory from-appearing before, Or being examined by an Inspector and it is specifically provided in that Section that the prosecution must show that the accused acted wilfully in committing the forbidden or prohibited acts.

Section 96 which prescribes penalty for disclosing results of analysis Under Section 91, also makes the wrongfulness of the disclosure an essential element of the offence. Section 98 prescribes penalty for using false certificate of fitness and there also the legislature has provided that the act complained of must have been done by the accused knowingly. When we turn to Section 101, We find that the occupier or manager of a factory who is accused of an offence punishable under the Act can show that he has used due diligence to enforce the execution of the Act and that some other person has committed the offence in question without his knowledge, consent or connivance. If the Legislature specifically made mens rea an essential constituent of some offences under Chapter X by using appropriate words such as 'wilfully', 'wrongfully'', 'knowingly' etc., it would not be an unreasonable inference to draw that in case of other offences where similar words 'were not used by the Legislature, the Legislature intended that the liability should be absolute and that mens rea should not be an essential element of those offences. The omission to use such words in Section 63 Or Section 92 does indicate an intention on the part of the Legislature not to make m<;ns rea an essential constituent of the offence resulting from the con. travention of the provisions of Section 63.

We are, therefore of the opinion, that mens rea is not an essential element of the offence resulting from the contravention of Section 63 and that the obligation under See. 63 is absolute and unconditional and if there is any contravention 1 of the provisions of Section 63, the offender is guilty of the offence Under Section 92 whether he hadf mens rea or not.

13. The argument based on Section 117 is also 'Without any substance. Section 117 confers immunity on a person in respect of anything which is in good faith done or intended to be done under the Act. There are two requirements which must be satisfies before the accused can take advantage of Section 117. The act in respect of which the prosecution is launched must have been done or intended to be done by the accused under the Act and it must have been done in good faith. The act complained of in the present case was requiring or allowing the workers to work in the factory otherwise than in accordance with the notice of periods of work displayed in the factory. It is not disputable and has not been disputed before us that in requiring or allowing the workers to work in the factory from 3-30 P.M. to 4-30 P. M. the respondent acted in good faith. The record shows that the respondent was under the bona fide impression that by paying extra wages under Sec- 59, the respondent could require or -allow the workers to work in the factory from 8-30 P.M. to 4-30 P.M. and that by doing so, he was not committing any contravention of the provisions of Section 63.

The question however, is whether the respondent acted or intended to ,act under any provisions of the Act. The argument of Mr. Patwari was that the respondent acted under the provisions of Section 59 in taking overtime work from the workers and .that he was, therefore, entitled to the protection of Section 117. We are unable to accept this argument. Section 59 does not deal with the question as to when an 0occupier or manager of a factory can require or allow a worker to work in the factory otherwise than in accordance with the notice of periods of work displayed in the factory or take overtime work from the worker. Section 59 deals only with the question of payment of extra wages to a worker who works in a factory for more than nine hours a day or for more than forty-eight hours a week. It cannot, therefore, be said that in acquiring or allowing the workers to work longer than the periods of work specified in the notice the respondent acted or intended to act Under Section 59.

The respondent required or allowed the workers to work in. the factory for more than the periods of work specified in the notice because he believed that there was nothing illegal in his doing so since he was paying extra wages for overtime work in accordance with the provisions of Section 59. The respondent acted as he did not because he believed he was authorised Under Section 59 to do so but because he thought that there was nothing illegal in his doing- so since he was paying extra wages for overtime work as required by Section 59. We do not see how it can be said that the respondent acted or intended to act Under Section 59 in requiring or allowing the workers to work in the factory otherwise than in accordance with the notioe of periods of work for adults displayed in the factory. We are fortified in this opinion by the decision of the Nagpur High Court in the case of A.I.R. 1938 Nag 406 mentioned above. In that case the Division Bench of the Nagpur High Court observed as under:

It appears to us that this Section was inserted in the Act primarily, if not entirely, for the benefit of the inspecting staff- The Manager or Occupier who allows workmen to work beyond the prescribed hour is not, in our opinion, acting or intending to act under the Act

No doubt the learned Judges of the Nagpur High Court who decided that case were dealing with the provisions of the Factories Act. 1934, but the observations made by them apply with equal force to the provisions of the Factories Ac 1948. The decisions cited by Mr. Patwari on the question of mens rea to which we have already made a reference in the earlier part of this judgment were also relied on by Mr. Patwari in support of the argument founded on Section 117. We do not think these decisions advance the argument of Mr. Patwari any further. In none of these decisions do we find any discussion of the question as to whether the act which was alleged to constitute the offence was done or intended to be done under the relevant Factories Act- It was assumed that the act was done or intended to be done under the Act and that this particular requirement of Section 117 was satisfied and the only argument advanced was directed to the question as to whether the accused had acted in good faith. These decisions cannot, therefore, help us in deciding the question whether the respondent acted or intended to act under the Act in requiring or allowing the workers to work in the factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory. We are, therefore, of the opinion that the respondent cannot take advantage of the provisions of Section 117 of the Act.

14. In the result we allow the appeals and convict the respondent of the offence Under Section 92 read with Section 63 of the Factories Act. 1948, in each of the three appeals and sentence the respondent to pay a fine of Rs- 10/- in each of the three appeals and in default to suffer simple imprisonment for fifteen days.


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