ORDER
Sankaran, J.
1. This revision petition is directed against the conviction of the petitioner for offences under Clauses (a) and (b) of Sub-section (1) of Section 6 and also under Section 7 road with Section 92 of the Factories Act (Act LXIII of 1948). (The petitioner is the managing partner of a firm known by the name 'Gujarat Travancoro Agency' doing business at Mattancherry. This firm is dealing in pepper, and in that connection the process of drying, garbling and packing of pepper is being carried on in the premises of the firm at Mattancherry.
According to the prosecution the work thus carried on by this firm amounts to a manufacturing process as contemplated by the Factories Act and more than 20 persons are being regularly engaged by the petitioner to have this work' done. On this basis it is contended that the petitioner has been running a factory as defined in the Factories Act and the petitioner's position is that of the, occupier of the factory.
2. On 10-11-1953 Pw 1 who is the Inspector of Factories, Northern Division, Alwaye, inspected the premises and on conducting the necessary inquiries, he was satisfied that the petitioner was running the factory without complying with the requirements of the Factories Act and has thus committed certain offences made punishable under Section 92 of the Factories Act.
Section 112 of the Act empowered the State government to make 'rules providing for any matter which, under any of the provisions of the Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of this Act'. In exercise of this power, a set of rules were made and published by the State Government in the gazette dated 15-7-1952.
These rules include rules contemplated by Clauses (a) and (d) of Section 6(1) of the Factories Act. This section deals with the approval, licensing and registration of factories and Clause (a) states that the State government may make rules requiring the previous permission in writing of the State Government or of the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction or extension of any factory or class or description of factories.
Similarly Clause (d) of the Section provides for making rules requiring the registration and licensing of factories or any class or description of factories, and prescribing the fees payable for such registration and licensing and for the removal of licences. Rules 3 and 4 of the rules already referred to are the relevant rules as contemplated by Clauses (a) and (d) of Section 6(1) of the Act.
The petitioner has been conducting the pepper business in the premises of his firm, without applying for and obtaining the permission of the State Government or of the Chief Inspector for conducting the business at the particular site and also without obtaining the necessary registration and the license, and thus he is alleged to have contravened Clauses (a) and(d) of Section 6(1) and Rules 3 and 4 of the rules made under the Act.
Sub-section (1) of Section 7 of the Act requires the occupier to give a written notice to the Chief Inspector at least 15 days before ho begins to occupy or use any premises as a factory, containing the several particulars as enumerated in the sub-section. Rule 12 also deals with the same matter. No such notice was given by the petitioner.
Contravention of these requirements of the Act and rules made under it, is made punishable by Section 92 of the Act. That section stated that the occupier and manager of the factory, on conviction of such an offence, shall be punishable with imprisonment for a term which may extend to three months or a fine which may extend to Rs. 500, or with both.
3. P. W. 1 prosecuted the petitioner for the offences already mentioned, by preferring a complaint after obtaining the sanction contemplated by Section 105 of the Act. The main defence of the petitioner is that he is not running a factory as defined in the Factories Act and that therefore he is not bound to comply with the requirements of Sections 6 and 7 of the Factories Act or of Rules 3, 4 and 12 of the rules made under the Act.
The Sub-Divisional Magistrate repelled this plea and found that the petitioner has been running a factory and that by contravening the requirements of the sections and rules already referred to, he has committed an offence punishable under Section 92 of the Factories Act.
Accordingly, the petitioner was convicted under Clauses (a) and (d) of Sub-section (1) of Section 6 and under Section 7, read with Section 92 of the Factories Act, and was sentenced to pay a fine of Rs. 51 and in default to undergo simple imprisonment for a period of 2 weeks. Against such conviction and sentence the petitioner preferred Criminal Appeal No. 32 of 1956 before the Sessions Court at Anjikaimal. The learned Sessions Judge confirmed the conviction but reduced the fine to Rs. 5. The accused-petitioner has come up in revision challenging the legality of the conviction entered against him by the lower court.
4. If the evidence on record is sufficient to make out that the petitioner is running a factory as defined in the Factories Act, the conviction entered against him by the lower courts has only to be confirmed in view of his admission that he has not complied with the requirements of Sections 6 and 7 of the Act.
The question therefore is whether it is established by such evidence that the petitioner is running a factory as defined in the Factories Act. The definition is contained in Clause (m) of Section 2 and it is as follows:
' 'Factory' means any premises including the precincts thereof:
(i) whereon 10 or more workers are working, or were working on any day of the preceding 12 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 20 or more workers are working, or were working on any day of the preceding 12 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 (XXXV of 1952), or a railway running shed.'
The prosecution has no case that at the premises of the Gujarat Travancore Agency any manufacturing processs is being carried on with the aid of power and hence the first part of the definition does not come in for consideration in the present case. To attract the second part of the definition, it must be shown that 20 or more workers are working or were working on any day of the preceding 12 months on the premises of the Gujrat Travancore Agency and that a manufacturing process is being carried on without the aid of power in any part of such premises.
It is obvious that the expressions 'manufacturing process' and 'workers' have been used in Clause (m) of Section 2 in the sense in which these expressions have been defined in Clauses (k) and (1) of the same section. The definition of ''manufacturing process' is contained in Clause (k) and it is as follows :
'manufacturing process' means any process for:--
(i) making, altering, repairing or 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 letter press, lithography, photogravure or other similar process or book binding or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels.'
It appears that the Legislature has made a deliberate attempt to make the definition all-comprehensive so as to bring within it all conceivable activities in the course of commerce and industry. The process of garbling of pepper carried on at the premises of the Gujarat Travancore Agency cannot come under parts 2 to 5 of the definition. But on the question whether that process would come within the first part of the definition, there is little scope for doubt.
What is meant by the process of garbling has been explained by P. W. 3. According to him the process consists of washing, drying and winnowing with a view to cleaning it by removing all dust and dirt. After this process of garbling, the garbled pepper is packed in gunny bags and is thus made ready for sale. When Pw. 1 inspected the premises of the Gujrat Travancore agency on 10-11-1953, he found 9 persons engaged in washing and drying pepper and 14 others engaged in winnowing dried pepper. Pw. 3 has also stated that such a process was going on when P. W. 1 visited the premises.It is conceded by the accused-petitioner also that the pepper stocked by his firm is sold only after it is garbled. This is made clear in Ext. D the letter sent by him to P. W. 1 by way of reply to the notice Ext. I issued by P. W. 1. The process of washing and cleaning pepper in the course of garbling and the subsequent packing of the same with a view to its sale, transport, delivery or disposal, clearly amounts to 'a manufacturing process' as defined in the first part of the definition of that expression. (5) It has next to be seen whether the 23 persons who were seen engaged in the process of garbling pepper when Pw. 1 visited the premises of the Gujrat Travancore Agency on 10-11-1953 were workers as defined in the Factories Act.
The definition is given in Clause (1) of Section 2, and it runs 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.'
It has already been found that the aforesaid persons were engaged in a manufacturing process. But it is urged on behalf of the accused-petitioner that they were not persons employed by him and that unless that condition is also satisfied these persons cannot be said to be workers within the meaning of the above definition.
The prosecution, on the other hand, contends that to attract the definition of the word 'worker' it is enough if the person concerned is shown to be engaged in any of the items of! work specified in the definition, and it is not necessary further to show that he is doing so under an employer. The decision in The State v. All Saheb, AIR 1955 Bombay 209 (A) was also cited in support of that position.
Even though the definition of the word 'worker' in Clause (1) of Section 2 of the Factories Act arose for consideration in that case, the main question that arose for decision was whether the expression 'employed' as used in the definition necessarily involves the relationship of master and servant as between the employer and the employee. This question was answered in the negative and it was pointed out that if one is employed upon the basis of wages, then there may be a relationship of master and servant.
But there may be other cases in which there may not be any relationship of master and servant, and yet the person employed may be a worker coming within the definition in Clause (1) of Section 2. To the same effect is the decision in In re K. V. V. Sarma, AIR 1953 Mad 269 (B). In both these decisions particular emphasis was laid on the expression a person employed whether for wages or not' as occurring in Clause (1) of Section 2 as indicating the comprehensive nature of the definition.
A person who receives wages as remuneration for his services, a person who receives remuneration on a piece-work basis, a person who may be working merely as an apprentice, and a person who is an honorary worker --all come within the definition of the word 'worker' in Clause (1) of Section 2. Such being the comprehensive nature of the definition, it will not be correct to say that a relationship of master and servant must necessarily exist between the employer and the employee so as to bring the employee within the definition of the word 'worker.'
Petitioner's learned Counsel was prepared to concede this position. But he maintained that it does not affect his contention that the definition cannot take in persons other than those employed by the owner or manager of the business or concern in which they arc working.
We think that this contention is well founded and has to prevail. It is obvious from the definition that the word 'employed' is used with reference to the person employed and also to the person by whom the employment was made. The word has been used as a transitive verb. The different meanings given to the word 'employ' in Black's Law Dictionary (Second Edition) are the following :
'To engage in one's service; to use as an agent or substitute in transacting business; to commission and intrust with the management of one's affairs; and, when used in respect to a servant or hired labourer, the term is equivalent to hiring which implies a request and a contract for a compensation .........'
These different meanings clearly indicate that the word 'employ' is generally used as a transitive verb and it carries with it the idea or the concept of an employer and an employee forming its subject and object. In the definition in Section 2(1) the object of the verb is expressly mentioned as the person employed. Even though the subject is not similarly expressed in the definition, the existence of the subject is implied in the definition and is clearly and definitely indicated by the expressions which qualify the word 'employed.'
These expressions are 'directly or through any agency' and 'whether for wages or not.' For making an employment directly or through an, agency, there must necessarily be an employer. Similarly, for settling the terms of the employment also, whether it is for wages or not, there should be an employer. These qualifying expressions would not have found a place in the definition if the word 'worker' was intended to mean any person actually engaged in work, whether under an employer or otherwise.
In defining the word 'worker' the word 'employed'' appears to have been deliberately used in its full legal import as carrying with it the idea of having been engaged by the employer. Even though the 'employer' contemplated by the definition is not specified therein, it is obvious from the context in which the definition occurs that the employer contemplated is the person who has the ultimate authority over the business carried on in the premises where the workers are employed.
This is made clear by the definition of the words 'factory' and 'occupier'' which come immediately after the word 'worker' in Section 2 Clause (1). Clause (m) contains the definition of the word' 'factory' and, as already pointed out, it means any premises including the precincts thereof whereon 10 or more workers are working in a manufacturing process carried on with the aid of power or whereon 20 or more persons are working in a manufacturing process carried on without the aid of power. In Clause (n) the word 'occupier' as used with reference to the factory, is defined as follows :
'Occupier' of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory.'
These definitions as also the other relevant provisions in the Factories Act where the word 'employed' has been used, have to be kept in view while attempting to understand the true meaning and significance of the same word 'employed' used in the definition of the word 'worker.'
It is a safe rule of construction to presume that the same technical expression occurring in different parts of the same statute must have been used by the legislature in the same sense, unless it is otherwise indicated by the particular context in emphasising this rule, Du Parcq. L. J., observed as follows in Butcher v. Poole Corporation, 1942-2 All ER 572 (C) at p. 579 :
'It is, of course, impossible to construe particular words in an Act of Parliament without re-ference to their context and to the whole tenor of the Act.'
In the Factories Act, the word 'employ' has been used not only in the definition of the word 'worker' but also in several other sections. Section 27 states that 'no woman or child shall be employed in any part of a factory for pressing cotton in which a cotton opener is at work.' Section 34 stated that 'no person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him injury.' Section 45 requires that 'first-aid boxes or cupboards equipped with the prescribed contents should be maintained in every factory where 150 or more workers are ordinarily employed.' Section 47 requires that 'in every factory where 150 or more workers are ordinarily employed, adequate and suitable shelters or rest rooms and a suitable lunch room, with provision for drinking water, shall be provided and maintained for the use of the workers.' Section 48 directs that ''in every factory wherein more than 50 women workers are ordinarily employed, there shall be provided and maintained' a suitable room or rooms for the use of children under the age of 6 years of such women.' What is significant to note is that these sections do not specify the person who is to comply with the directions contained therein. All the same, it is abundantly clear that the obligations under these sections are cast on the occupier of the factory concerned. That it is so, is clear from Sections 46 and 49 wherein also similar directions are given.
Section 46 states that 'in any factory where more than 250 workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers.' Similarly, Section 49 requires that 'in every factory wherein 500 or more workers are ordinarily employed, the occupier shall employ such number of welfare officers as may be prescribed.'
Contravention of any of the provisions of the Act or any of the rules made thereunder, is made punishable under Section 92 of the Act which states that for such contravention the occupier and manager of the factory shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to Rs. 500, or with both.
It is with reference to the person having the ultimate control) of the affairs of the business concern that the word 'employed' has been used in the aforesaid sections to indicate the persons engaged by him for work under him. That word occurring in the definition of 'worker' in Section 2 Clause (1) has also to be understood in the same sense, particularly when there is nothing in the definition to indicate that the word as used therein cannot sustain such a construction.
The literal meaning of the word as also the qualifying expressions contained in the definition are all quite in harmony with the above construction. We are, therefore, clearly of the view that one of the essential conditions to be satisfied to bring a person within the definition of 'worker' in Section 2 Clause (1) of the Factories Act, is that he must be a person employed directly or through any agency, whether for wages or not, by the person having the ultimate control of the affairs of the concern in which such person is engaged.
6. The above conclusion gets considerable support from the special provision contained in Section 85 of the Factories Act. That section empowers the State Government to publish a notification in the official gazette declaring that allor any of the provisions of the Act shall apply to any place where manufacturing process is carried on with or without the aid of power or is so ordinarily carried on even though the other conditions necessary to bring the place within the definition of 'factory' are not satisfied.
The first part of that section states that such; a notification may be issued in spite of the fact that 'the number of persons employed therein is less than 10 if working with the aid of power, and less than 20 if working without the aid of power.' The second part of the section states that such a notification may be issued notwithstanding the fact that 'the persons working therein are not employed by the owner thereof, but are working with the permission of, or under agreement with, such owner; provided that the manufacturing process is not being carried on by the owner only with the aid of his family.''
In this part of the section the employer is referred to as the owner of the place where manufacturing process is carried on and not as the occupier thereof, for the obvious reason that until the issue of the notification contemplated by the section the place cannot be deemed to be a factory for the purposes of the Act and there can be no 'occupier' as contemplated by Section 2(n) before the place is declared to be a factory. This position is made clear by Sub-section (2) of Section 85 which runs as follows :
'After a place is so declared, it shall be deemed to be a factory for the purpose of this Act and the owner shall be deemed to be the occupier and any person working therein a worker:--
Explanation : For the purposes of this section owner shall include a lessee or mortgagee with possession of the premises.'
The second part of sub-section (1) of Section 85 would have been unnecessary if the persons working at a place where manufacturing process is carried on would be workers as defined in Section 2(1) even though such persons are not employed by the owner of the place.
If they could come within the definition of 'workers' the place where they are engaged in a manufacturing process would be a factory and the owner of the place will be the occupier as defined in the Act, and even without the issue of the notification contemplated by Section 85, the provisions of the Factories Act, would have applied to such a place.
But the legislature appears to have been clearly of the view that unless the persons engaged in a manufacturing process are persons employed by the person having the ultimate control over the business concern, they will not be workers as defined in the Act.
That is the reason why the second part of Sub-section (1) of Section 85 was enacted empowering the State Government to issue a notification declaring that the provisions of the Factories Act would apply to any particular place wherein manufacturing process is carried on and the persons engaged therein are not persons employed by the owner of the concern, but are only persons working with the permission of or under agreement with such owner. It is obvious therefore that in respect of such a place the provisions of the Factories Act can have no application unless and until the notification comtemplated by Section 85 is issued.
7. The evidence in this case has to be examined in the light of the principles already explained. The plea of the accused-petitioner is that he has not employed any person in anymanufacturing process carried on at the premises of the Gujrat Travancore Agency. Even though the work of garbling of pepper carried on at such premises amounts to a 'manufacturing process,' his contention is that the persons engaged in that process were not persons employed by him.
The prosecution has not adduced any evidence to show that these persons were really employees under the petitioner. On the other hand, the evidence on record is such as to lead to a contrary conclusion. Pw. 3 is the only witness who has given evidence as to the circumstances under which 23 persons were found to be engaged in the process of garbling pepper when Pw. 1 visited the premises of the Gujrat Travancore Agency on 10-11-1953.
This witness has admitted that these 23 employees were brought there by himself and that the petitioner-accused had no sort of control over them. The work of garbling pepper had been given by the petitioner to P. W. 3 under a contract. For garbling one candy of pepper, P. W. 3 was to get Rs. 6. It was for P. W. 3 to decide how and where the garbling had to be done.
So far as the petitioner-accused is concerned, he Wag bound to pay at the agreed rate of Rs. 6 per candy when garbled pepper was supplied to him by Pw. 3. It was the sole responsibility of Pw. 3 to see that the garbling was properly done by engaging the required number of employees on terms to be settled by him. In fact it is clearly admitted by him that the required number of persons were employed by him on his own responsibility and that their wages were paid by himself.
The position would have been different if his contract with the petitioner was to supply the required number of labourers to the Gujrat Travancore Agency for attending to the process of garbling pepper stocked by the firm. In that, case such labourers could be deemed to be persons employed by the petitioner, though not directly, but through the agency of Pw. 3. Even if the labourers had been so engaged, they would undoubtedly have been workers as defined in the Factories Act.
But in view of the clear admission of P. W. 3 that he was under no obligation to supply labour to the petitioner's firm, that his only contract was to see that pepper was garbled at the fixed rate of Rs. 6/- per candy and that he had himself to engage the required number of labourers for the execution of his contract, it is impossible to hold that the 23 persons mentioned in the mahazar Ext. A and the list Ext. B were persons employed by the petitioner.
It follows, therefore, that these 23 persons were not 'workers' under the Gujrat Travancore Agency and that the firm could not be deemed to be a 'factory' as defined in the Factories Act. The presumption under Section 103 of the Act could not also come to the aid of the prosecution in this case. That Section states that 'if a person is found in a factory at any time except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall, until the contrary is proved, be deemed for the purpose of this Act and the rules made thereunder, to have been at that time employed in the factory'.
In order that the presumption under this section may be drawn, it must first be shown that the premises in question is a 'factory' as denned in the Act. It is only then that a person found at such premises at the time specified can be presumed to be a person employed in the factory.
But there can be no presumption in respect of any premises that it is a factory. All the dements required by the definition of the word 'factory' must be clearly proved and established in respect of the premises in question before it can be deemed to be a 'factory'. There is no such proof in this case.
8. The utmost that can be said in favour of the prosecution evidence is that the 23 persons employed by Pw. 3 for garbling pepper were working at the premises of the Gujrat Travancore Agency with the permission of the petitioner. Even if it were so the provisions of the Factories Act could be made applicable to such premises only after the issue of a notification as contentplated by Section 85 of the Act.
The prosecution has no case that any such notification has been published in respect of the Gujrat Travancore Agency. Thus, as matters stood at the relevant period, the Factories Act was not applicable to the petitioner's firm so ad to make it obligatory on the part of the petitioner to comply with the requirements of the several provisions of the Act.
It follows, therefore, that the petitioner's failure to comply with the requirements of Sections 6 and 7 of the Act or of Rules 3, 4 and 12 off the Rules framed thereunder, cannot amount to the commission of any offence punishable under Section 92 of the Act. A similar question arose for consideration in State v. Shri Krishna Pd., AIR 1954 All 44 (D). In that case the Allahabad Law Journal Company had engaged a contractor to do the work of binding their printed volumes.
This work was not connected with the manufacturing process carried on by the company in connection with the printing of those volumes, but had to be done by the contractor outside the premises of the company. Without the knowledge of the manager of the company, the contractor brought some workers on the company's premises on a holiday and engaged them in the work of binding the printed volumes.
On finding these persons working at the company's premises, the Factory Inspector prosecuted the company's manager for having committed a breach of Section 52 of the Factories Act, which states that no adult worker shall be required or allowed to work in a factory on the first day of the week except under the circumstances specified in the section. While examining the question whether the company manager had contravened the provisions of Section 52, the court observed as follows :
'It is clear that only such persons can be classified as workers of the factory who are either directly or indirectly or through some agency, employed for doing the work of any manufacturing process or cleaning etc., with which the factory is concerned.
It does not contemplate the case of a person who comes, and that too without the knowledge of the factory owner or without his intervention, either directly or indirectly and does some work on the premises of the factory.' It was also pointed out that the Allahabad Law Journal Company could not possibly control the leave of the persons who were employed by the contractor Abdul Rahim to do a particular job for the company. In dealing with the scope of Section 52 it was observed as follows : 'The scope of Section 52, Factories Act, makes it clear to us that only such workers alone are contemplated by the section over whom the particular employer had control, not only in the matterof taking work from them, but also in the matter of their employment, leave, holidays, etc., for if that had been not so, the legislature could not have made an employer responsible in the event of there being a breach in regard to lack of substitution of a holiday for a Sunday in the event of the worker being made to work on a Sunday. It is inconceivable that a person should be held responsible for something which he had no control over.'
The position of the persons which Pw. 3 had, engaged in the present case in connection with the execution of his contract for garbling pepper, was similar to that of the workers whom the contractor in the above case had employed to attend to the work of binding of the printed volumes of the Allahabad Law Journal Company. These persons could in no sense be deemed to have been persons employed by the petitioner. His prosecution under the provisions of the Factories Act must, therefore, fail.
9. In the result, this revision petition is accepted and the conviction entered against the accused-petitioner and the sentence awarded to him by the lower court, are set aside and he is acquitted of the offences charged against him in this case. The amount of fine, if realised, will be refunded.