1. These petitions challenge the vires of S. 92 of the Factories Act, 1948, in so far as it provides for imposition of a sentence of imprisonment for the offences set out in that section. Though the question of law raised in the two petitions is identical, the facts giving rise to the two petitions are different and it is, therefore, necessary to set them out briefly before we proceed to discuss the question of law.
2. The facts in Special Civil Application No. 686 of 1962 are as follows. Petitioner 1 is a partner in a firm called Zaverchand Laxmichand Bros. and Co. which carries on business as managing agents of Sri Yamuna Mills, Ltd. Sri Yamuna Mills, Ltd., carries on business inter alia of manufacturing and selling cotton textile goods and for the purpose of manufacturing cotton textile goods it has a factory in Baroda. The factory is governed by the provisions of the Factories Act, 1948, and in accordance with the provisions of S. 2(n) of the Act, petitioner 1 is the occupier of the factory and he has been mentioned as such in the notice sent to the Chief Inspector of Factories under S. 7 of the Act. Petitioner 2 is the manager of the factory. It appears that at about 2-30 a.m. in the night of 15 November, 1961 the Kier in the bleaching department of the factory burst all of a sudden causing fatal injuries to a worker named Baburao Ramchandra. The Inspector of Factories who is respondent 2 in the petition thereupon paid a visit to the factory and after investigating into the cause of the accident filed five criminal complaints arising out of the accident against petitioner 1 as occupier and petitioner 2 as manager of the factory. These cases were numbered Criminal Cases Nos. 653 to 657 of 1962 and were filed in the Court of the Judicial Magistrate, First Class, Second Court, Baroda. The offences for which the petitioners were charged were contravention of S. 31(1) of the Act and rules S. 61(6), 61(1)(d), Cls. (i) and (ii) and rule 61(1)(c), Cls. (i) and (ii) of the Bombay Factories Rules, 1950, read with Sub-section (2) of S. 31 and S. 112 of the Act, all the offences being punishable under S. 92 of the Act. The petitioners, thereupon, preferred the present petition challenging the vires of S. 92 of the Act in so far as it provides for imposition of sentence of imprisonment for the offences set our in that section.
3. The petitioner in Special Civil Application No. 724 of 1962 is the occupier of the factory owned by Keshav Mills Company, Ltd. The factory is situate in Petlad and manufacture of cotton textile goods is being carried on in the factory. The factory is governed by the provisions of the Factories Act, 1948. The petitioner is the occupier of the factory in his capacity as the managing agent of Keshav Mills Company, Ltd., under S. 2(n) of the Act. On 18 November, 1961, a Junior Inspector of Factories, who is respondent 2 in the petition, visited the factory there and found that in respect of some of the workers working in the factory there was contravention of S. 52(10)(a) punishable under S. 92 of the Act and in respect of some others there was contravention of S. 63 punishable under S. 92 of the Act. The Junior Inspector of Factories, thereupon, filed two complaints against the petitioners as the occupier of the factory - one being for the offence under S. 52(1)(a) punishable under S. 92 and the other being for the offence under S. 63 punishable under S. 92. This led to the filling of the present petition by the petitioner challenging the vires of S. 92 to the same extent to which its vires has been challenged in the first petition.
4. These petitions were admitted and rules were issued on the petitions. In opposition to the rules the respondent filed two affidavits, one in each petition, setting out various facts and submissions justifying the validity of S. 92. We shall refer to the relevant portions of these affidavits when we deal with the arguments urged on behalf of the petitioners in these petitions.
5. The main ground on which the vires of S. 92 was challenged by Sri I. M. Nanavati, learned advocate appearing on behalf of the petitioners, was that the section was violative of Art. 19(1)(g) of the Constitution. The argument was that S. 92 imposed a liability for imprisonment on the occupier and manager of the factory for every contravention of any provision of the Act or any rule made under the Act or any order in writing given thereunder irrespective of the fact whether the occupier or manager had mens rea in respect of the contravention or the contravention was by him or by any other person in the factory and whether it was with or without his knowledge, consent or connivance and this constituted an unreasonable restriction on the fundamental right of the occupier under Art. 19(1)(g). Sri I. M. Nanavati of course conceded that the various provision of the Act and rules made thereunder were valid restrictions on the right of the occupier to carry on his trade or business in the shape of running a factory and that S. 92 in so far as it made a contravention of those restrictions an offence was also a valid provision but his quarrel was only with that part of the section which made the offence punishable with imprisonment for a term which may extend to three months. According to him if the section had rested merely by providing for an imposition of fine, there would have been no difficulty but the section went further and provided for imposition of sentence of imprisonment and this provision, it was argued, was excessive and transgressed the limit of reasonableness. To this contention a threefold answer was sought to be given by the learned Advocate-General on behalf of the respondents. The first answer was that once it was conceded that the restrictions contained in the various provisions of the Act and rules made under the Act were reasonable restrictions in public interest, the provision in S. 92 making a branch of those restrictions punishable with imprisonment could not be regarded as an interference with the right of the occupier of the factory to carry on his trade or business. This argument was based on the premise that what constituted restrictions on the exercise of the right to carry on trade or business guaranteed under Art. 19(1)(g) were the provision embodied in the various sections of the Act and the rules made under the Act and S. 92 which merely provided a penalty for contravention of those provisions did not by itself constitute any restriction on that fundamental right. The latter was merely a consequential provision intended to enforce the observance of the restrictions. The second answer suggested by the learned Advocate-General was that if the complaint of the petitioners was in respect of the provision in regard to sentence of imprisonment, the challenge could, if at all, be under Art. 21 and not under Art. 19(1)(g). He relied on the decision of the Supreme Court in Collector of Malabar v. Erimmal Ebrahim Hajee [A.I.R. 1957 S.C. 688], where it has been laid down that
'if life or personal liberty is taken away lawfully under Art. 21, no question of the exercise of fundamental rights under Arts. 19(1)(a) to 19(1)(e) and 19(1)(g) can be raised.'
6. Lastly it was urged by him that even if the impugned provision in regard to imposition of sentence of imprisonment contained in S. 92 was an integral part of the restrictive provisions contained in the Act and the rules made under the Act and the validity of the restrictive provision was, therefore, required to be tested in the light of the impugned provision - and this, we think, is the correct position in law - the challenge under Art. 19(1)(g) must still fail inasmuch as the impugned provision did not make the restrictions unreasonable by making breach of them punishable with imprisonment and the restrictive provisions including the impugned provision were, therefore, clearly saved by Clause (6) of Art. 19. This last argument of the learned Advocate-General is, in our opinion, well-founded and it, is, therefore, not necessary to enter upon a consideration of the validity of the first two arguments urged by him.
7. Article 19(1)(g) of the Constitution guarantees to a citizen the right to practice any profession or to carry on any occupation, trade or business. This right is, however, subject to Clause (6) of Art. 19 which provides that nothing in Sub-clause (g) of Art. 19(1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right. This provision is obviously intended to achieve a proper balance between individual freedom and social control. Now what are reasonable restrictions on the exercise of the fundamental right under Art. 19(1)(g) which can be imposed in the interest of the general public has been the subject-matter of discussion in various decisions of the Supreme Court and the law in regard to the scope and ambit of this expression can now be regarded as well-settled. We need not rehearse all that has been said by the Supreme Court in these various decisions but it is sufficient to refer only to one decision of the Supreme Court, namely, Arunachala Nadar v. State of Madras [A.I.R. 1959 S.C. 300]. In this case Subba Rao, J., delivering the judgment of the Court observed :
'It has been held that in order to be reasonable, a restriction must have a rational relation to the object which the legislature seeks to achieve and must not go in excess of that object [see Chintaman Rao v. State of Madhya Pradesh (A.I.R. 1951 S. C. 118)].'
8. We must, therefore, apply this test in the present case and for the purpose of determining whether the restrictions imposed by the various provisions of the Act and the rules made thereunder read in the light of S. 92 are reasonable restrictions, we must ascertain the object of the Act from the circumstances under which it was passed and its various provisions and see whether the restrictions have a rational relation to the object which the legislature seeks to achieve or whether the restrictions by reason of the provision of imposition of punishment of imprisonment enacted in S. 92 go beyond that object.
9. Prior to the enactment of the Factories Act, 1948, the law in force in regard to regulation of labour in factories was the factories Act, 1934, but, as the Statement of Objects and Reasons of the Act of 1948 shows, there were various defects and weaknesses in the Act of 1934 which hampered effective administration and the provisions of the Act of 1934 regarding safety, health and welfare of workers were also found to be inadequate and unsatisfactory and it was, therefore, felt that in view of the large and growing industrial activities in the country, a radical overhauling of the factories law was necessary. The result was the present Act of 1948 which came into force from 1 April, 1949. Now this Act, as the preamble shows, is an Act to consolidate the law regulating labour in factories. The Act is a piece of social welfare legislation enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards and ensuring safe and healthy conditions of life and work. The Act makes various provisions in regard to health, working hours, holidays, safety and welfare of workers working in factories and in exercise of the rule-making power conferred by the Act the Government of Bombay has made certain rules called 'The Bombay Factories Rules, 1950,' which make further detailed provisions in regard to various matter relating to the welfare of the workers. These provisions imposed upon the occupiers or managers certain obligations which include amongst others obligations to protect workers, unwary as well as negligent, and to secure for them employment in conditions conducive to their health and safety and also require the occupiers or managers to maintain inspection staff and to make provision for maintenance of health, cleanliness, prevention of overcrowding and amenities like lighting, ventilation, drinking water, etc. Provision are also made for safety of workers and their welfare such as restrictions on working hours and on the employment of young persons and females and grant of annual leave with wages. Employment in a manufacturing process was at one time regarded as a matter of contract between the employer and the employee and State was not concerned to imposed any duties upon the employer. It is, however, now recognized that the State has a vital concern in preventing exploitation of labour and in insisting upon proper safeguards for the health and safety of workers. The Act and the rules impose numerous restrictions upon the employer to ensure to workers adequate safeguards for their health and physical well-being and to ensure to them safe and healthy conditions of life and work. The imposition of such restrictions is not and cannot be regarded in the context of modern outlook or industrial relations as unreasonable and it must be said in fairness to Sri I. M. Nanavati, learned advocate appearing on behalf of the petitioners, that he did not contend that these restrictions standing by themselves are unreasonable. He admitted that these restrictions are necessary for the protection of the interests of the workers and are enacted in public interest. Now clearly it cannot be disputed that if there have to be restrictions, there must be a provision for penalty for breach of them for no restriction can be effective unless there is some sanction compelling its observance. A provision of penalty for breach of the restriction is, therefore, a concomitant and necessary incidence of the restrictions. Such a provision in regard to the restrictions imposed by the various provisions of the Act and the rules is made by the legislature in S. 92. Section 92 occurs in Chap. X which is headed 'Penalties and Procedure' and as the marginal note indicates, it is a comprehensive section providing general penalty for various offences constituted by contravention of the provisions of the Act and the rules. It runs as follows :
'92. Save as is otherwise expressly provided in this Act and subject to the provisions of S. 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to seventy-five rupees for each day on which the contravention is so continued.'
10. The effect of the section clearly is that in respect of every contravention of any of the provision of the Act or the rules the occupier and manager of the factory are guilty of an offence and are punishable with imprisonment or fine or both. Now, an 'occupier' is define in S. 2(n) to mean a person who has ultimate control over the affairs of the factory and where the said affairs are entrusted to a managing agent the section says that such agent shall be deemed to be the occupier of the factory. It is obvious from this definition that the occupier of the factory is the person who has ultimate control over the affairs of the factory. There is no definition of 'manager' of a factory; but the manager of a factory would clearly be the person in charge of the actual day-to-day management of the affairs of the factory. The occupier and the manager being thus persons responsible for the affairs of the factory, the former being in ultimate control and the latter being in actual day-to-day charge, it is obvious that the provisions of the Act and the rules which are enacted for improving and ameliorating the lot of the workers and for ensuring their welfare would be effectively enforced if the occupier and the manager are made responsible for seeing that they are properly complied with. The occupier and the manager would be the persons who can directly by supervision or inspection, by improvement of business methods or by exorting those whom they may expect to be under their control, enforce the observance of the regulatory provisions contained in the Act and the rules and they are, therefore, made criminally responsible for contravention of those provisions. The object of making the occupier and the manager criminally liable is clearly to secure proper and effective enforcement of the provision of the Act and the rules. No fault can, therefore, be found with the provisions enacted in S. 92 in so far as it makes the occupier and the manager of the factory guilty of an offence for contravention of the provisions of the Act and the rules and as a matter of fact, as already pointed out by us, Sri I. M. Nanavati had no grievance on that account. Sri I. M. Nanavati had also no quarrel with that part of S. 92 which provided for imposition of a sentence of fine on the occupier and manager of the factory for such offence, but his only complaint against the section was that it provided for imposition of a sentence of imprisonment and this, in his submission, made the restrictions unreasonable. We shall presently discuss this challenge to the validity of the section, but before we do so, it is necessary to refer to two or three other sections of the Act which were relied on by one side or the other in the course of arguments. Sub-section (1) of S. 97 provides that subject to the provisions of S. 111, if any worker employed in a factory contravenes any provision of the Act or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine and Sub-section (2) of that section says that where a worker is convicted of an offence punishable under Sub-section (1), the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that be failed to take all reasonable measures for its prevention. Section 101 provides for exemption of occupier or manager from liability in certain cases in the following terms :
'101. Where the occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear day's notice in writing of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved; the occupier or manager of the factory, as the case may be, proves to the satisfaction of the Court :
(a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance,
that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager, as the case may be, shall be discharged from any liability under this Act in respect of such offence :
Provided that in seeking to prove as aforesaid, the occupier or manager of the factory, as the case may be, may be, examined on oath, and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor;
Provided further, that, if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing the charge, the Court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the Court, the Court shall proceed to hear the charge against the occupier or manager and shall, if the offence be proved, convict the occupier or manager'.
11. This is the background against which we have to determine the question of vires of S. 92 which is raised before us.
12. Now it is cleat from what we have stated above that it was common ground between the parties that S. 92 us a perfectly valid piece of legislation in so far as it makes the occupier and manager of a factory guilty of an offence for contravention of any of the provisions of the Act or the rules even though the actual contravention may not be by the occupier or the manager and the contravention may have occurred without the knowledge, consent or connivance of the occupier or manager and this must be so, for otherwise the object and purpose of the regulatory provisions contained in the Act and the rules would be defeated. There is nothing unreasonable in the occupier and the manager of the factory being made responsible for the observance of the provisions of the Act and the rules and providing that they shall be guilty of an offence if there is contravention of any of those provision. Only by such provision it would be possible to effectively enforce the provisions of the Act and the rules. Now once it is held that the legislature is competent to make it an offence on the part of the occupier and manager of the factory if there is contravention of any provision of the Act or the rules and that such a provision does not make the restrictions imposed by the Act and the rules unreasonable, it is difficult to see how making such offence punishable with imprisonment can make the restrictions unreasonable. It would be open to the legislature to decide having regard to the circumstances disclosed as to whether a provision for imposition of sentence of imprisonment is necessary in order to secure effectively compliance with the provisions contained in the Act and the rules or whether a sentence of fine would be enough to achieve that purpose. When we look at the corresponding section of the Factories Act, 1934, namely, S. 16, we find that that section provided only for imposition of a sentence of fine. But when the legislature came to enact the Factories Act, 1948, the legislature also provided for imposition of a sentence of imprisonment leaving it to the judicial authorities to decide which particular type of sentence should be imposed. It is reasonable to assume that having regard to the circumstances existing at the time the legislature found that it was necessary to introduce the penalty of imprisonment as an alternative or in addition to the sentence of fine and hence the present provision in S. 92. As a matter of fact when we turn to the Statement of Objects and Reasons of the Factories Act, 1948, we find it clearly stated in it that the experience of the working of the Act of 1934 revealed a number of defects and weaknesses which hampered effective administration and in the affidavits which have been filed on behalf of the respondents in reply to the petitions it is specifically pointed out that the sentence of fine provided in the Factories Act, 1934, was found not to be sufficiently deterrent and that is why the legislature thought it fit to provide also for imposition of sentence of imprisonment. This provision permitting imposition of sentence of imprisonment cannot, therefore, be regarded as unreasonable. Sri I. M. Nanavati then drew our attention to the factory legislation in England and contended that even in the English legislation the penalty that is provided is only a sentence of fine and not a sentence of imprisonment and that the English statute furnished the standard of reasonableness in this regard by which the validity of the section must be tested. We cannot accept this contention. In England the Parliament may not have thought it necessary to introduce the penalty of imprisonment in cases such as those covered by S. 92 of our Act and the sentence of fine may have been found to be sufficient. But the conditions in India are different and no test of reasonableness can ignore the conditions under which the particular statutory provision is enacted.
13. Moreover, it is to be remembered that the penalty of imprisonment is not obligatory as soon as there is any contravention of the provisions of the Act or the rules. The question as to whether a contravention of any provision of the Act or rules should be visited with the penalty or imprisonment or the penalty of fine, is left to the discretion of the judicial authority and the discretion is necessarily a judicial discretion guided by well-settled principles. There may be a variety of circumstances under which contravention of any provision of the Act or rules may take place and discretion must, therefore, be left to the judicial authority to decide as to what particular type of penalty is warranted on the facts of a particular case. The argument of Sri I. M. Nanavati was that the penalty of imprisonment should have been excluded in cases where it was found that the occupier or manager had not himself made the contravention complained of and the contravention had taken place without the knowledge, consent or connivance of the occupier or manager. But this argument ignores the fact that contravention of provisions of the Act or the rules may take place in an infinite variety of circumstances and it would be neither expedient nor desirable for the legislature to lay down any hard and fast rule or straight jacket formula comprising cases where punishment of imprisonment should be imposed or excluded. The legislature thought that the best way to deal with the situation would be to vest the discretion in a judicial authority to decide as to which particular type of penalty should be imposed on the facts and circumstances of the particular case and that is exactly what the legislature has done in S. 92. While deciding as to what type of penalty should be imposed on the occupier or the manager for contravention of any provision of the Act or rules, the judicial authority would take into account the nature of the offence, the gravity of the offence, the culpability of the accused, the existence of mens rea and various other factors having a bearing on the question of penalty. We cannot, therefore, regard the provision for imposition of sentence of imprisonment in S. 92 as unreasonable. This view which we are taking is further strengthened if we turn to S. 101. That section in terms provides that where the occupier manager of a factory proves to the satisfaction of the Court that he has used due diligence to enforce the execution of the Act and that some other person is the actual offender and has committed the offences in question without his knowledge, consent or connivance, he would be discharged from any liability under the Act in respect of such offence. Where, therefore, the actual contravention is committed by some other person without the knowledge, consent or connivance of the occupier or manager and the occupier or manager has used due diligence to enforce the execution of the Act, the occupier or manager can always avail himself of the provisions of S. 101 and claim to be discharged of the liability in respect of the contravention. This provision mitigates to a considerable extent the rigour of the absolute liability imposed by S. 92. Of course, if the occupier or manager is not able to show that he has used due diligence to enforce the execution of the Act or it turns out that the actual contravention was not committed without his knowledge, consent or connivance, the absolute liability imposed on him by S. 92 would remain, but there can be nothing unreasonable about such a consequence. It is, therefore, clear that even if there were any quality of unreasonableness in S. 92 standing by itself, that is clearly taken away by the provision enacted in S. 101. The only argument which Sri I. M. Nanavati could advance in regard the provision enacted in S. 101 was that the provision required that the actual offender must be brought before the Court at the time appointed for hearing the charge or at the latest within a period of three months thereafter and if by the end of that period the actual offender could not be brought before the Court, the Court would be bound to proceed to hear the charge against the occupier or manager and to convict him if the offence was proved. Now the scheme of S. 101 being that the occupier or manager should be relieved from liability only if the actual offender could be brought to book, the presence of the actual offender would be necessary at the time of the trial and the legislature provided a maximum period of three months within which the actual offender should be brought before the Court for the purpose of the trial. The period of three months is a reasonable period within which the actual offender can ordinarily be brought before the Court by the processes of law. If, however, for some reason the actual offender cannot be brought before the Court within this period, the trial of the occupier or manager cannot be allowed to be protracted indefinitely and in such a case the trial must proceed. The is clearly a reasonable provision and it is difficult to see how any fault can be found with it. Moreover, as we have already pointed out above, even if in any particular case, the actual offender cannot be brought before the Court within a period of three months, the occupier or manager who is charged can always point out to the judicial authority trying him that the actual contravention was not committed by him but was committed by someone else without his knowledge, consent or connivance and that circumstance would certainly be taken into account in the award of the penalty under S. 92.
14. The challenge to the validity of S. 92, therefore, fails and the petition are dismissed. The rule in each petition will be discharged with costs.