1. Crl. Ap. No. 661 of 1957: This is an appeal by the State against the acquittal of the respondent by the Sub-Divisional Magistrate, Erode, in C. C. No. 185 of 1957.
2. The respondent, was prosecuted for an offence under Section 6 of the Factories Act read with Section 92 and Rule 5 (3) of the Madras Factories Rules, 1950. The case is that the respondent, who is the proprietor of a rice mill, was carrying on the business of the rice mill, viz., the manufacturing process of boiling, drying and hulling of paddy in the premises without a licence granted by the Chief Inspector of Factories, Madras, as required by the rules. A rice mill becomes a factory within the definition of that expression in the Act if he employes 10 or more persons for working on any day.
It is alleged that on 20-3-1957 the Additional Inspector of Factories, Erode 1 Circle, inspected the factory and fund 17 workers engaged in the business of manufacturing process of boiling, drying and hulling of paddy. The Additional Inspector of Factories, who is examined as P.W. 1, speaks to the fact that he saw 10 men and 7 women working in the mill. He says he noted down the names of 17 workers and ascertained from the workers that they were being paid wages. He also appears to have ascertained the type of work, which these men and women were doing at that time.
3. The respondent denied that he employed these 17 men and women and he denied the offence. He examined four defence witnesses on his side to show that he did not employ these 17 persons in his mill on the day when the Inspector came to inspect the factory. The case of the respondent is that excepting two or three, whom he has employed, the rest of them were all persons who brought paddy for the purpo.se of being hulled in the rice mill, and that, therefore, they could not be called workers within the meaning of the expression in the Act.
4. There is no doubt that on the date of inspection by P.W. 1, he did see 17 persons, i.e., 10 men and 7 women, working there. There can be no doubt also that he ascertained their names and the type of work they were doing, because in the memo he sent he gives the nature of work they were doing. For instance, the first three persons in the list were said to be boiling paddy, the next two persons were said to be hullers, the sixth person was doing what is called kalas work and the rest were all said to be drying paddy.
If all these persons were employed by the milt owner, the respondent undoubtedly it will be a factory within the meaning of that expression in the Act. and he should take out a licence. The question is whether it is established beyond all reasonable doubt that all these 17 persons were workers under the proprietor and in the rice mill receiving wages from the respondent. The term 'worker' is defined in Section 2(1) of the Act.
It is as follows : ' 'Worker' means a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process. 'Manufacturing process' is defined in Clause (k) of Section 2 of the Act as follows: 'Manufacturing process' means any process for (i) making, altering, repairing, ornamenting, finishing, 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 power, or (iv) composing types for printing, printing by letterpress, lithography, photogravure, or other similar process or book binding, or (v) constructing, reconstructing, repairing refitting, finishing, or breaking up ships or vessels.'
It may be said that the expression 'or otherwise treating or adapting any article or substance with a view to its use may include the boiling and drying of paddy for the purpose of hulling it, and in that sense it may probably come within the expression of 'manufacturing process.' But then a worker that is a person, who is engaged in the process, must he employed directly or through any agency, whether for wages or not.
The question is, what is the meaning of the expression 'employed directly or through any agency.' Does it mean that, when a customer goes with the paddy for the purpose of getting it hulled and if the paddy is wet and if he is asked to dry the paddy in the mill itself before it goes into the process of hulling and if he himself dries it up, he is a worker within the meaning of this expression? The contention of the learned Public Prosecutor is that so long as a person is employed in the mill he will be a worker within the meaning of this expression and though he may be employed by a customer such as a person sending is paddy through his servant, he will be a worker within the meaning of this expression. In supportof his contention that in such circumstances also the servant will come within the meaning of 'worker' reliance is placed on the decision in State v. Alli Sahib Kashim Tamboli, : (1955)IILLJ182Bom where at p. 642 (of ILR Bom) : (at p. 218 of AIR) it is stated as follows :
'The definition of a worker in Clause (1) is clearly enacted in terms of a person who is 'employed in' and not in terms of a person who is employed by. Under the definition, it is immaterial how or by whom he is employed' so long as he is actually employed in (underlining (here in ' ') is mine) a manufacturing process. His being engaged in a manufacturing process may not be directly at the instance of the manager or any of his agents. It may be through any agency.'
The question in the Bombay case was whether beedi workers working on piece work basis come within the definition of 'workers.' Some of the workers were working on piece work basis. This decision no doubt supports the contention of the learned Public Prosecutor. According to this decision so long as any person is found working inside the premises of the mill, whether he comes as a customer or as a servant of some other person, who sends his paddy for the purpose of getting it hulled by the particular mill in question he will fall within the definition of 'worker' in the Act.
But in State v. Sri Krishnapal, : (1954)ILLJ273All , it has been held that only such persons can be called workers on whom the particular employer has control, not only in the matter of taking work from them, but also in the matter of their employment, leave, holidays etc. Neither of these decisions referred to the provisions of Section 62 of the Act. According to the provisions of Section 62, the manager of every factory shall maintain a register of adult workers, to be available to the Inspector at all times during working hours, or when any work is being carried on in the factory, showing (a) the name of each adult worker in the factory,(b) the nature of his work, (c) the group, if any, in which he is included, (d) where his group works on shifts, the relay to which he is allotted; (e) such other particulars as may be prescribed.
Now, if these persons, who are sent by customers with paddy to get it hulled in the rice mill are to be classified within the term of 'workers' in the Act, then under Section 62 of the Act an obligation is cast upon the manager of every factory to keep a register of adult workers for these persons also. It may be that in. all the 365 days in the year 365 and more customers may be sending different kinds of servants from their own house-hold for the purpose of getting their paddy hulled in the rice mill.
Is it the intention of the Legislature that the manager of a factory should keep a register for these household servants or other servants of the customers who may come in there only for a day in a year or perhaps twice or thrice as it suits the customers merely for the purpose of getting their paddy hulled? It cannot be said that the legislature intended Or contemplated that the manager of every factory should maintain a register for these servants, who, though they may assist in either boiling or hulling or drying of the paddy for their own purposes, never work in the factory nor receive wages from the manager of the factory, but are surely under the employment of their masters on whose behalf they bring the paddy into the rice mill.
It seems to me that this is a criterion to find out whether the persons who were working therewere all persons who could be called workers. If it is not established that the 17 persons, who were found on that day were the servants of the proprietor of the mill employed either directly or through agency but that they came in for the purpose of getting their paddy hulled, then they will not be workers within the meaning of the expression in the Act.
The prosecution must satisfactorily and beyond all reasonable doubt establish that none of these workers or at any rate the workers numbering to ten and more, were persons who were employed by outside masters and who had come there or brought the paddy on behalf of their masters 'to have it hulled or boiled. If all the persons employed inside the premises are persons employed by the manager -- it may be directly by himself or through any other agency -- and their wages are paid either by the manager directly or through another agent through whom he engages these persons then they will he workers within the meaning of the expression in the Act and not otherwise.
5. Applying that test to this case, what is established is that 17 persons were found. It has not been established beyond all reasonable doubt that all these 17 persons received their wages from the manager of the factory or the proprietor of the mill. It is true that the Inspector merely says that he ascertained from the workers that they were being paid wages. So, this is a case not of working for no wages. The question therefore of working for no wages does not arise in this case the definite case of the prosecution being that all the 17 persons were working for wages. But the Additional Inspector of Factories had not cared to ascertain whether all of them were receiving their wages from the proprietor of the mill or some of them were receiving their wages from the persons on whose behalf they brought the paddy for the' purpose of hulling.
It is possible that some of them might have said that they were all working for wages; but that by itself would not carry the case to the extent. that all of them were working for wages from the employer. It seems to me that in order to bring this case within the definition of factory it must bo clearly established that at least ten workers or more were working in the rice mill receiving wages from the manager.
If that is not clearly established, it cannot be said that this is a factory within the meaning of the expression in the Act. On the evidence I have come to the conclusion that the case that this is a factory within the meaning of the expression in the Act is not established beyond all reasonable doubt. If it is not proved to be a factory there is no obligation to take out a licence. In this view, I have to hold that the case has not been made out by the prosecution and the acquittal is justified. The appeal is, therefore, dismissed.
6. Crl. Ap. No. 662 of 1957: Dismissed. For reasons vide judgment in Crl. Ap. No. 661 of 1957.