Hill and Stevens, JJ.
1. This was a prosecution under Clause (g), Sub-section (1) of Section 15 of the Factories Act (XV of 1881), as amended by Section 14, Act XI of 1891.
2. It appears that on the 20th of July last the Civil Medical Officer of Serampore, who is a Joint Inspector of Factories, inspected the Hastings Mill between the hours of 9 and 11 A.M. and found the latrines used by the operatives in a filthy state, the cause of that condition of things being that the pipe between the inner and the main outer cesspools bad become blocked with solid nightsoil, jute and other things.
3. In the first place a prosecution was instituted against the manager of the mill, but the prosecution failed.
4. The present case was then instituted.
5. The sanction required by proviso (1) to Section 15, Act XV of 1881, as amended by Section 14, Act XI of 1891, was accorded to the prosecution of the Municipal Commissioners of Serampore. Process was at first issued against the Chairman of the Municipality. An order was afterwards passed for the issue of summons to all the Municipal Commissioners, but it was eventually revoked, and the case proceeded against the Chairman, who is described in the summary-trial record made by the Sub-divisional Magistrate by whom the case was tried as 'representing the Municipal Commissioners of Serampore.' In that capacity the Chairman was convicted of 'neglecting to keep a factory free from effluvia arising from a privy' and under the provisions of Clause (g), Sub-section (1) of Act XV of 1881 read with Section 17 of the same Act and Section 320 of Bengal Act III of 1884 he was sentenced to pay a fine of Rs. 200, which the Magistrate directed to be paid out of the Municipal fund.
6. The ground on which the Municipality has been found to be liable is that under Section 320 of Bengal Act III of 1884, it has undertaken to maintain an establishment for the cleansing of public and private latrines within its limits, that it levies a fee from the Hastings Mill accordingly under the provisions of Section 321, and that it is therefore bound under Section 320 to 'make suitable provision' for the cleansing of the latrines of the mill. The criminal liability under Section 15 of Act XV of 1881 is held by the Magistrate to attach to the Municipality by the operation of the latter part of Section 17 of the Act as amended by Act XI of 1891. That section runs as follows:
Every occupier of a factory shall be deemed primarily liable for any breach therein of this Act or of any order or rule made thereunder; but he may discharge himself from such liability by proof that such breach was committed by some other person without his knowledge or consent, and in that case the person committing such breach shall be liable therefore.
7. We are now asked to set aside the conviction on several grounds, of which the principal are that the proceedings are informal, because the person prosecuted was the Chairman of the Municipality, whereas the sanction accorded was for the prosecution of the Municipal Commissioners; that Sections 15 and 17 of the Factories Act refer only to persons immediately connected with a factory; that there is nothing to show that the Municipal Act is to be read with the Factories Act; that there is no provision of law authorising the prosecution of Municipal authorities, and that in any case neither the Municipality nor the Chairman can be held liable under the provisions of Section 17 of the Factories Act on the Magistrate's own finding, that the manager of the factory and the Municipality were jointly responsible for the obstruction which was the primary cause of the nuisance.
8. We may remark in passing that we are not prepared to say that the sanction did not sufficiently comply with the provisions of Section 15 of the Factories Act and even assuming it to be otherwise, the defect would, we think, be cured by the provisions of Section 537 of the Code of Criminal Procedure. It does not seem to us necessary to enter at length into a consideration of all the questions which have been raised before us, because we are clearly of opinion that assuming that the Municipal Committee or their Chairman could at all be made criminally liable under the provisions of Section 17 of the Factories Act, the conviction is unsustainable on the findings of the Magistrate.
9. It has been found that a special establishment of sweepers is maintained by the Municipality for the cleansing of the latrines of the mill, but that they receive an extra allowance from the mill for night work, and are required to report themselves during the night to the mill officers. The Magistrate has held accordingly that the Municipality has undertaken the responsibility of keeping the latrine clean by day, and the mill that of keeping it clean by night. It has not been found that the establishment of sweepers provided by the Municipality is insufficient; but it has been found that neglect on the part of the sweepers brought about the direct cause of the nuisance, namely, the obstruction of the pipe between the cesspools, and that for that obstruction the mill and the Municipality are jointly responsible. The Magistrate has, however, here drawn a subtle distinction in which we are unable to follow him. He says that, although the mill and the Municipality are jointly responsible for that which caused the effluvia to arise, the Municipality must be held responsible for the arising of the effluvia, because the discovery of the effluvia by the inspecting officer took place in the day time, when it was the turn of the Municipality to keep the latrine clean. He goes on to deal with the question whether the occupier of the mill had knowledge of the existence of the nuisance, and he concludes with the proposition that though it is possible that the occupier was aware of it, the burden of proving this lay upon the Municipality,---a proposition which seems to us clearly erroneous.
10. The provision of Section 17 of the Factories Act, by virtue of which this conviction has been had against the Chairman of the Municipality, is of a highly penal character and must be construed strictly in favour of the accused. We think that in order to fix liability on any person other than the occupier of a factory it is incumbent upon the latter to give the strictest proof of circumstances exonerating himself, and it is plain on the face of the section that the burden of proving absence of knowledge or consent on his part lies entirely upon him.
11. In the present case on the Magistrate's finding of joint responsibility the occupier is not discharged from his liability under Section 15 of the Factories Act and therefore the liability cannot be fixed on any other person. The conviction is for this reason unsustainable.
12. We accordingly set it aside, and direct that the tine, if realised, or so much thereof as may have been realised, be refunded.