1. This is an appeal by the Stale of Gujarat against theorder passed in appeal by the learned Sessions Judge, Surendranagar, setting aside the order of conviction and sentence passed by the Judicial Magistrate, First Class, Wadhwan, in respect of an offence under the Factories Act, 1948.
2. The prosecution case is that the accused in tniscase is the manager and occupier of a factory known asSaurashtra Metal and Mechanical Works, Wadhwan, and that he had contravened the provisions of Section 63 of the Factories Act, 1948, by allowing the workers of the factory to work otherwise, than in accordance with the periods of work mentioned on the Notice Board and the Register. The prosecution case further was that on June 21, 1960, at about 5-50 A.M. the Inspector of Factories, Mr. K. U. Shah, visited the factory in question and he found three workers working in the factory even though the time for these workers as mentioned in the notice Board and the Register was from 7 A.M. The defence of the accused was that at the relevant time he was not the manager and occupier of the factory but his partner Mr. D. A. Dangi was the manager. The learned Magistrate after going into themerits of the question, disbelieved this aspect of the matter and held that the accused was the manager and the occupier of the factory. The defence of the accused further was that the machine of the factory in question had gone out of order on June 20, 1960, which was repaired Immediately and the work was started earlier the next day as an urgent order was to be executed by the factory; and that a letter was written to the Inspector or Factories on June 20, 1960. That letter is Ex. 11 in tne trial Court's record and by that letter intimaiion was sent that on June 21, 1960, the following machine was tostart work at 5 A.M, and, therefore, the letter was writtenfor granting the permission for the same.
3. The learned trial Magistrate convicted the accused under Section 63 read with Section 94 of the Factories Act, 1948, and sentenced him to pay a fine of Rs. 100/- in respect of each of the three workers, and thus he was sentences to pay a fine of Rs. 300/-, in default to suffer R. I. for one month. Against that order of conviction and sentence the accused went in appeal before the learned Sessions Judge, Surendranagar. The learned Sessions Judge, Surenora-nagar, allowed the appeal and set aside the order of con-viction and sentence passed against the accused and acquitted the accused of the offences with which he stood charged.
4. The main question to be considered in this appeal is the question whether the respondent-accused committed an offence under Section 63 read with Section 94 of the Factories Act, 1948. In view of the fact that there was a previous offence admitted by the accused, the provisions of Section 94 can come into operation only if Section 63 applies. Sections 63 and 94 are penal sections and unless the offence committed is proved, they will have no application. Section 63provides as follows:--
'No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the noticeof periods of work for adults displayed in the factory andthe entries made beforehand against his name in the register of adult workers of tho factory.'
Now, the periods of work for adults are provided tor under Section 61. Sub-section (1) of Section 61 provides as follows :--
'There shall be displayed and correctly maintained in every factory in accordance with the provisions of Subsection (2) of Section 108, a notice of periods of work for adults, showing clearly fpr every day the' periods curing which adult workers may be required to work.'
5. Sub-section (10) of Section 61 provides as follows:--'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 witn the previous sanction of the inspector, no such cnange.sn.au be made until one week has elapsed since the last change.' It is common ground between the parties and that has also been stated before the lower Courts that there was no previous change and this was the very first change so far as this particular factory was concerned. Hence the latter portion of Sub-section (10) of Section 61 cannot have any application. If there was any change in the system of work, a mere notification of the same to the Inspector betore the first change was made was quite sufficient to comply with the provisions of Sub-section (10). How, the legislature has used the words 'System of work' in Sub-section (10) of Section 61 and the term 'system of work' is a comprehensive torn* including not merely hours of work but other conditions at work and the entire system of work under which an adult worker works in any particular factory. What is required by Sub-section (30) is that if there is any proposed change in the system of work, then the intimation has to be sent to the Inspector. In our opinion, if o'n a particular single day, there is a departure from the system of work already notified under Sub-section (1), then that cannot be said to be a change in the system of work in the factory, because a change in the system of work would mean either a permanent change or a change for a fairly long duration of lime in the hours of work or any other conditions. In this particular case, what happened was that because of the stoppage of work on June 20, 1950, certain orders remained to be executed and hence for one single day on June 21, 1960, the factory in question for these .three workers commenced work at 5 A.M. instead of at 7 A.M. For sake of abundant caution, a letter seems to have been sent to the inspector of Factories, though on a proper reading of Sub-sec, (10), it was not necessary to send any such intimaiion to the Inspector of Factories. We wish to emphasise that in such a case of departure from the notified system of work, there is no change in the system of work as such and hence it cannot be said that there was a change in the system of work. This conclusion thai we have' arrived at receives support from the judgment of a Division Bench of the Bombay High Court reported in the case of Emperor v. Nanubhai Maneklal, 35 Bom LR 1167 : (AIR 1934 Bom 43), and at p. 1171 (of Bom LR) : (at p. 45 of AIR), it has been stated as follows:
'It was a case not of any change in the standing orders according to the ordinary use of language, but ot a departure from the standing orders on a special occasion.'
In such cases it was held that there was no breach of tne then provisions of the Factories Act and it was held by the Division Bench that there was no offence committed by the accused in that case, in this case also because of the special circumstances, which prevailed due to the machine getting out of order on June 20, 1960, a departure from the system of work on a special occasion was madeand, in our opinion, thete was no necessity to intimate that departure on 'the special occasion to the Inspector o! Factories. In any event such an intimation was in fact sent tg the Inspector of Factories on June 20, 1960, as shown by Ex. 11 in the record of the trial Court.
6. As indicated above, Section 63 can come into operation only if there is a change or if any adult worker is asked to word or allowed to work in breach of the notified period and the system of work as- contemplated by Section 61, Sub-section (1) or Sub-section (10). Since we have come to the conclusion that there was a departure merely on a special occasion ana no change in the system of work, the provisions of Section 63 cannot apply to the present case. In these circumstances, in our opinion, the learned Sessions Judge was right when he held that the accused had not committed any offence and when he set aside the order of conviction and sentence passed by the learned trial Magistrate.
7. In these circumstances, this appeal fails and is dismissed.