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The Inspector of Factories and anr. Vs. Gordhandas Purshottam Das - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR252
AppellantThe Inspector of Factories and anr.
RespondentGordhandas Purshottam Das
Cases ReferredUsha Prints India P. Ltd. v. E.S.I. Corporation
Excerpt:
.....it flowed through the channel by force of gravity. it was urged in that case that the mere act of pumping water from the well into the tub and carrying the water from the tub by channel to the premises was a manufacturing process carried on with the aid of power. in view of this construction of section 2(k)(ii) of the act, we do not accept the argument advanced on behalf of the appellants to the effect that mere pumping of water from the well to the reservoir on the terrace amounts to a manufacturing process with the aid of power. in the madras case to which reference is made just above, the use of water so pumped from the well was made in the actual process of tanning but the court has come to the conclusion that it was merely incidental to the tanning process; and therefore, it held..........facts:(1) that the water-pump is on the well; motor is not used for any other purpose except for pumping water and water is collected in the tank reservoir in the terrace of the premises;(2) that the water from the reservoir is not used for preparing colours or for washing saris; and(3) that the water drawn with the aid of electric motor from the well is collected in the reservoir and that water is used only for cleansing and washing tables, screen designs, floors and the persons of the workers. it is also used for drinking purposes.on these findings, the learned additional sessions judge came to the conclusion that the use of water for these purposes does not amount to any manufacturing process. he, therefore, came to the conclusion that the ramesh textiles is not a factory......
Judgment:

V.R. Shah, J.

1. This appeal is filed by the Inspector of Factories, Junagadh, and the State of Gujarat against the order of acquittal passed by the learned Additional Sessions Judge, Rajkot District, Gondal, in Criminal Appeal No. 18 of 1968, whereby the learned Additional Sessions Judge acquitted the respondent from a charge of having committed an offence punishable under Section 92 of the Factories Act, 1948 (hereinafter referred to as 'the Act') read with Rule 7(1) of the Gujarat Factories Rules, 1963 (hereinafter referred to as 'the Rules').

2. The respondent is the occupier and main partner of 'Ramesh Textile' act Jetpur. This 'Ramesh Textiles' carried on a business of printing Saris in its premises at Jetpur. The premises consist of a building and an open compound enclosed by walls. These premises belong to Dinesh Dying Works from whom 'Ramesh Textiles' has taken the premises on rent. This 'Ramesh Textiles' obtained a licence as required under the provisions of the Act, but no renewal of licence for the year 1966 was applied for. The Inspector of Factories visited the premises on 28-7-1967 when he found 13 workers working in the premises. He found that business of screen-printing of saris was conducted in the premises. He also found that there was a well in the open compound of the premises and that an electric motor of one H.P. was installed on that well and that with the aid of that electric motor, water from the well was pumped and collected in a tank on the terrace of the building. According to the Factories Inspector, water was used for manufacturing process of printing saris and, therefore, the premises were a factory. After some correspondence, a complaint was filed against the present respondent for having failed to get the licence renewed under the provisions of Rule 7 of the Rules, which is an offence by virtue of Section 92 of the Act.

3. The case of the respondent before the learned trial Magistrate was that the 'Ramesh Textiles' is not a factory and therefore, the provisions of the Act and the Rules do not apply. The learned trial Magistrate came to the conclusion that the water from the tank in the terrace was used for cleansing and washing designs, tables and floors of the factory and therefore, the water was used for manufacturing process. He, therefore, came to the conclusion that the Ramesh Textiles was a factory. He, accordingly, convicted the respondent and sentenced him to pay a fine of Rs. 250/- in default to suffer rigorous imprisonment for 15 days.

4. The respondent preferred an appeal to the Sessions Court, and the learned Additional Sessions Judge, who heard that appeal, recorded the following findings of facts:

(1) That the water-pump is on the well; motor is not used for any other purpose except for pumping water and water is collected in the tank reservoir in the terrace of the premises;

(2) That the water from the reservoir is not used for preparing colours or for washing saris; and

(3) That the water drawn with the aid of electric motor from the well is collected in the Reservoir and that water is used only for cleansing and washing tables, screen designs, floors and the persons of the workers. It is also used for drinking purposes.

On these findings, the learned Additional Sessions Judge came to the conclusion that the use of water for these purposes does not amount to any manufacturing process. He, therefore, came to the conclusion that the Ramesh Textiles is not a factory. Accordingly, he set aside the order of conviction passed by the trial Magistrate and acquitted the respondent.

5. The State has, therefore, filed this appeal; and the contention on behalf of the State before us is that the Ramesh Textiles is a factory. The above findings of facts recorded by the learned appellate Judge have not been disputed before us and the arguments have been advanced on the basis of those findings. We will, therefore, proceed to decide this appeal on the basis of the findings recorded by the learned Additional Sessions Judge. There is no dispute that the work of preparing colours and printing and washing Saris is done by manual labour only, and water pumped from the well is not used for these purposes but river water is used. There is also no dispute that more than 10 employees are employed in this business of printing saris.

6. Now, the term 'factory' is defined in Clause (m) of Section 2 of the Act as follows:

(a) 'factory' means any premises including the precincts thereof-

(i) whereon ten or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or

(ii) whereon twenty or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on

but does not include a mine subject to the operation of the Mines Act, 1952 or a railway running shed;

We are concerned, for the purpose of this appeal, with Sub-clause (i) of Clause (m) of Section 2 of the Act.

7. The term 'Manufacturing process' is defined in Clause (k) of Section 2 of the Act as follows:

(k) 'manufacturing process' means any process for

(i) making, altering, preparing, ornamenting, furnishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or

(ii) pumping oil, water or sewage, or

(iii) generating, transforming or transmitting powers, or

(iv) composing types for printing, printing by letter press, lithography, photogravure of other similar process, or book binding;

(v) constructing, reconstructing, reparing, refitting, finishing or breaking up ships or vessels;

8. The term 'power' is defined in Clause (g) of Section 2 of the Act as follows:

(g) 'power' means electrical energy, or any other form of energy which is mechanically transmitted and is not generated by human or animal agency:

9. The contention on behalf of the State before us is in two parts. The first part of the contention is that there is pumping of water from the well to the tank in the terrace by means of an electric motor which is worked by electrical energy; and therefore, in view of the definition of the term 'manufacturing process' in Clause (k)(ii) of Section 2, the mere act of pumping water into the tank in the terrace by means of an electric motor, amounts to 'manufacturing process' being carried on with the aid of power; and since this is done in a part of the premises occupied by Ramesh Textiles, the whole premises becomes a factory. The second part of the contention is that water is used to cleanse and wash tables and screen-designs and therefore, such use of water amounts to 'manufacturing process' as defined in Clause (k)(i) of Section 2; and since such water is obtained from the well by means of an electric motor worked with the aid of electrical energy, the 'manufacturing process' is carried on 'with aid of power' and there fore, the premises of Ramesh Textiles is factory. We will, therefore, consider these contentions of the appellants.

10. It is no doubt true that Sub-clause (ii) of Clause (k) of Section 2 of the Act defines 'manufacturing process' as meaning, inter alia, any process for pumping water. Merely because water is pumped from a well, can it be said that a manufacturing process is carried on in that premises? There are five sub-clauses in Clause (k) defining the term 'manufacturing process'. The first sub-clause is a very exhaustive clause and includes therein the various and different ways in which labour will be bestowed on an article or substance with a view to the use, sale, transport, delivery or disposal of that article. Sub-clause (i) refers to such a substance or article that various kinds of treatment can be applied to it so that article or substance, after the treatment is applied to it, can be said to be a different article with reference to its use, sale, transport, delivery or disposal. If after bestowal of labour, the article remains in the same condition as it was before, with reference to its use, sale, transport, delivery or disposal, there would be no 'manufacturing process' resulting from such bestowal of labour. Unlike Sub-clause (i), Sub-clause (ii) does not contain any words indicating the purpose for which the process of pumping of oil, water or sewage is made. Sub-clauses (iii), (iv) and (v) of Clause (k) indicate, by the words used therein, the purposes for which the article or substance is treated or adapted. If Sub-clause (ii) were to be interpreted literally, it would mean that whenever oil, water or sewage is pumped, manufacturing process takes place. In the context in which Sub-clause (ii) appears in Clause (k), can it be said that this is the correct interpretation? If a person were to pump water from a well into a tank on the terrace of his house, so that he can use the water without having the necessity to carry it manually from the level of the ground to his first floor, can it be said that thereby he is carrying out manufacturing process? The water remains water in precisely the same condition and quality in which it was before it was pumped into the reservoir on the first floor. There is no change in the water itself. Except the process of taking it on a higher level, no other treatment is applied to the water. By being taken on the higher level with the aid of an electric motor that water does not add anything to itself which it did not contain and does not lose any ingredient or effect which it contained; it remains just the same water as it was in the well. In common parlance it would not be said that by pumping water from the ground level to the first floor for use, there is any manufacturing process carried out in respect of that water. The pumping of oil, water or sewage must, therefore, be such that mere act of pumping enables one to say that a manufacturing process as commonly understood, is carried out. Sub-clause (i) of Clause (k) refers to the 'use, sale, transport, delivery or disposal' of the article or substance in respect to which a manufacturing process is said to have been carried out. Under Sub-clause (i) of Clause (k) such process is manufacturing process which is made with a view to use, sale, transport, delivery or disposal of the article. In our opinion, Sub-clause (ii) of Clause (k) would apply when the pumping of oil, water or sewage is made so as to facilitate its use, sale, transport, delivery or disposal. Oil, which is underground at a great depth would be of no use unless it is pumped and brought out of the ground. So also water in a lake or river should be pumped upto a certain height so as to distribute the same by mains and water pipes with a view to its use by residents in a locality. In the same way sewage ought to be pumped and thus moved under pressure so that it can be disposed of away from the towns and cities. In our opinion Sub-clause (ii) would apply to such case where pumping of oil, water or sewage is necessary in order to enable its use, sale, transport, delivery or disposal. In the instant case, is it necessary to pump water from the well so as to enable its use for the purposes for which this water is used in the premises. Water could be drawn by manual labour from the well and used for the same purpose. The use of electrical motor is not necessary for making use of water. Even without electric motor, water from the well can be used; by installing a motor, human labour is saved. There is no other purpose to be achieved. Such pumping of water is not included in Section 2(k)(ii) of the Act.

11. We are supported in this view of ours by a decision of the Madras High Court in V. Md. Haneef and Co. v. E.S.I. Corporation : (1969)ILLJ586Mad . In that case the process of tanning of hides and skins was being carried on in a premises; and in order to carry on that process, water was required for the purpose of soaking hides and skins and washing them. This water was brought by a channel connected with a tub constructed near a well. The water was pumped by an electric motor from the well into the tub and from the tub it flowed through the channel by force of gravity. It was urged in that case that the mere act of pumping water from the well into the tub and carrying the water from the tub by channel to the premises was a manufacturing process carried on with the aid of power. Negativing this argument, Madras High Court held as follows:

The reference to pumping of oil, water or sewage under the definition of manufacturing process in Section 2(k)(ii) of the Factories Act is intended to deal only with pumping installations where the main process itself is pumping of oil, water or sewage. The sub-clause is not intended to cover pumping which is merely ancillary to some other manufacturing process.

In view of this construction of Section 2(k)(ii) of the Act, we do not accept the argument advanced on behalf of the appellants to the effect that mere pumping of water from the well to the reservoir on the terrace amounts to a manufacturing process with the aid of power.

12. The second contention does not seem to have any substance. It is true that water which is stored in the tank on the terrace is available to the workmen in the premises by means of pipes. The workmen take the water from the pipe in buckets and with that water the tables used for printing of saris and screen-designs are washed and cleansed. Such washing or cleansing of tables and screen-designs is not any part of the process of printing saris. This work may be preliminary to commencing the work of printing saris. By washing a table or by cleansing screen-designs, no manufacturing process is carried out. It is true that in order to carry out the manufacturing process of printing saris, a table must be washed and screen-designs must also be cleansed. Such cleansing of table and screen-designs is carried out by washing them with water. These are merely preliminaries to commencing the work of printing saris; it is not a part of printing process. In the Madras case to which reference is made just above, the use of water so pumped from the well was made in the actual process of tanning but the Court has come to the conclusion that it was merely incidental to the tanning process; and therefore, it held that the use of water so pumped from the well did not amount to manufacturing process, with the aid of power. In the instant case, the facts are stronger than those in the Madras Case. As we stated above, there is no use of water in any process which is a part of the printing process. The use of water is merely preliminary to the commencing of printing process or it may be subsequent to the completion of the work of printing of saris. In any case, the water is not used for any purpose in the printing process itself. Therefore, in our opinion, no manufacturing process with the aid of power is carried out in these premises. It is no doubt, true that more than ten workers were found working in the premises. But unless it is shown that a manufacturing process is carried on with the aid of power, the premises do not become a factory.

13. Mr. Vidyarthi referred to a decision in Moosa Kazimi v. K.M. Sheriff : (1959)IILLJ344Mad . In that case however, the business of hotel and bakery was being conducted in the premises and the water which was pumped by means of an electric motor was used in the business of bakery itself. The Court came to the conclusion that use of such water was integrally connected with the hotel and bakery business of the establishment in question.

14. In M.S. Abdulla Basha and Co. v. Regional Director E.S.I. Corporation I.L.R. (1965) 1 Madras 293, the case related to tannery and water was pumped from a well and thereafter taken to the tannery through a channel. The tannery process was being carried on by manual labour only; and the question arose whether it was a manufacturing process with the aid of power, inasmuch as the water used in tanning process was obtained by lifting the same by an electric pump. The provisions of Sub-clause (ii) of Clause (k) were relied upon to show that it was a manufacturing process. Dealing with this argument, the Court observed as follows:

This sub-clause was not to my mind intended to take in an ancillary operation of pumping water as in the present case and to postulate the use of that power as covering use of power in aid of the manufacturing process itself. It is not the case of the department that water is required in a particular flow or force to serve the purpose of any of the manufacturing process involved. Water in fact is required in a static condition as it were for the purpose of soaking the raw hides and skins to make them plain and to facilitate the cleaning of the skins. Had it been a case where water could be achieved only with the aid of power, and that this kind of flow was necessary for the purpose of cleaning or any of the associated processes of manufacture, then undeniably power could be said to be used in the process of manufacture. But where water is pumped for the purpose of securing its supply and nothing more and power is not used in the process of manufacture itself, it seems difficult to hold that this part of the definition would at all be attracted.

Mr. Vidyarthi, the learned Assistant Government Pleader relied upon a decision in M.H. Ismail Sahib and Co. v. Regional Director E.S.I. Corporation : (1960)IILLJ428Mad in support of his argument that where water is pumped into a tank, it amounts to a manufacturing process with the aid of power. This decision of a Single Judge was considered by a Division Bench of the Madras High Court in V. Md. Haneef and Co. v. E.S.I. Corporation : AIR1959Mad155 (supra). In that earlier decision of the Single Judge of the Madras High Court, the Court held, as follows:

Water is required for the manufacturing process presumably, at a particular spot and in particular flow of force. This is not merely a case of a small quantity of water being utilised in the ordinary way, for, in that event, the employer would not take the trouble to use electrical energy to pump and store water in large quantities, and at a height. But, since, the use of the electrical energy enables the employer to utilise the water in such manner as is required in the manufacturing process itself, in effect he is using power for conducting a part of that process.

It is apparent that even in that earlier Madras case, the Court held that the water which was stored at a particular height by pumping was used in the manufacturing process itself at a particular force and with a particular flow of force. The Court came to the express finding that the use of electrical energy enabled the employer to utilise the water in such a manner as is required in the manufacturing process itself, That case, therefore can be distinguished from the instant case, because in the instant case the water is not used in any part of the manufacturing process of printing saris. That is one of the reasons why that case does not apply to the facts of this case. Mr. Vidyarthi relied upon the observations in that case to the effect that mere pumping and storage of water for the establishment amounted by itself to a manufacturing process as defined in the Act. Dealing with these observations of the Court in the earlier Madras case, the Division Bench in : (1969)ILLJ586Mad case over-rules that part of the decision of the Single Judge in that case.

15. Mr. Vidyarthi then referred to a decision in Laxmibai v. Chairman & Trustees Bombay Port Trust : (1954)ILLJ614Bom . In that case the question arose whether a watchman employed on night duty by the Port Trust at its Pumping Station was a 'workman' within the meaning of Workmen's Compensation Act, 1923. There the establishment concerned was the Pumping Station and in that pumping Station a process was employed for the purpose of pumping water. There was no dispute whether the pumping station was a factory or not. The dispute was whether the deceased night watchman who had no part to play in the process of pumping water was a 'workman' for the purpose of Workmen's Compensation Act. Obviously' this case deals with a pumping station and not with merely pumping of water for domestic purposes.

16. Mr. Vidyarthi further referred to a decision in Ardeshir v. Bombay State (now Maharashtra) : (1961)IILLJ77SC . That decision deals with the manufacturing process of salt from sea water which is pumped into salt pans. Two questions arose in that case; whether the open land in which salt pans were being worked as included in the term 'premises' and whether the process of converting sea-water into salt amounts to a manufacturing process. The question which arises for decision in the instant case, did not arise for decision before the Court in that case. This decision, therefore, does not afford any help to Mr. Vidyarthi in this argument.

17. During the course of arguments a reference was also made on behalf of the respondent to a decision in Usha Prints India P. Ltd. v. E.S.I. Corporation : (1963)IILLJ544Bom . In that case however, it was held that steam was generated by a boiler and transmitted along the pipes at a certain pressure so that the heat, which is a form of energy, was carried by steam and utilised in the manufacturing process of saris at the state of drying them. That case, therefore, does not afford any help to us.

18. Having considered the arguments on behalf of both the sides, we have come to the conclusion that there is no manufacturing process carried on with the aid of power in the premises of Ramesh Textiles and therefore, those premises do not constitute a factory. It was, therefore, not necessary for the respondent to apply for the renewal of the licence, because the provisions of the Act and the Rules there under do not apply to the premises of the respondent.

The result, therefore, is that the order of acquittal passed by the learned Sessions Judge is confirmed. Appeal is dismissed.


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