1. The very short but-interesting question which has emerged in this group of 18 appeals under Section 378 of the Code of Civil Procedure, 1973 is, whether the respondent-original accused Manager of the factory is liable for the offences punishable under Section 92 of the Factories Act, 1948 ('Act' for short for committing violation of the provisions of Section 62(1)(a) of Factories Act and also the provisions of Rules 95(1) and 110-A of the Gujarat Factories Rules, 1963 (Rules of 1963).
2. In this group of 18 acquittal appeals, the appellant State of Gujarat has questioned the legality and validity of a common acquittal judgment and order passed by the learned Judicial Magistrate, First Class, Wadhwan on December 29, 1992 in Criminal Case Nos. 208 to 225 of 1987, by invoking the aids of the provisions of Section 378 of the Code of Civil Procedure, 1973 (Code).
3. Since in this batch of 18 appeals, common questions are involved and arise out of a common judgment between common parties, all matters are being disposed of by this common judgment.
4. The respondent in all the appeals is original accused who was working at the relevant time, as a Manager of a factory run in the name of 'Shah Paper Bag Company' at Wadhwan. The respondent is hereinafter referred to as the accused for the sake of convenience and brevity. One Mr. G. A. Nasit was working as a Factory Inspector at Surendranagar, at the relevant time. He visited the factory of the accused on February 18, 1987, when the factory work was going on, the accused was the Manager. During the course of the visit, the Factory Inspector found that six workers were working in the factory along with other workers were not shown as workers in the muster roll and that they were not issued identity cards and also leave book as required under the law. Upon finding deficiencies and irregularities, the said workers were questioned by the Factory Inspector. Thereafter, he made remarks in the visit book accordingly and the reply was given by the accused admitting the deficiencies recorded by the Factory Inspector in the visit book.
5. In view of the aforesaid visit and the documents collected by the Factory Inspector, it was found by him that the accused had committed violations of the statutory provisions. According to the case of the complainant, the accused had committed violation of the provisions of Section 62(1)(a) of the Factories Act, 1948 and Rules 95(1) and 110-A of Gujarat Factories Rules, 1963. Therefore, he filed in all, 18 criminal complaints being Criminal Case Nos. 208 to 225 of 1987 in respect of the aforesaid six workers and breach of three provisions as aforesaid punishable under Section 92 of the Act. Thus, in all 18 criminal complaints came to be filed against the accused persons, on May 12, 1987, in relation to the alleged breaches committed by the accused in respect of the aforesaid six alleged workers.
6. The accused denied the charges against him and claimed to be tried in all the cases. During the course of proceedings before the Trial Court, the original complainant Factory Inspector submitted an application Exh. 5 for consolidation of all the 18 complaints and to decide by one and common judgment. The prosecution relied on seven prosecution witnesses and other documentary evidence to which reference may be made at an appropriate stage hereinafter. The complainant had also submitted written documents. After hearing the complainant and the Advocate of the accused and considering the facts and circumstances emerging from the evidence on record, the Trial Court arrived at a conclusion that the prosecution has not been able to prove the alleged criminality or culpability on the part of the accused who was the Manager at the relevant time. Therefore, the accused person came to be acquitted from all the charges in all the 18 criminal cases. The original complainant Factory Inspector through the State of Gujarat, therefore, has assailed the acquittal judgment and order recorded by the trial Court in all the aforesaid 18 criminal cases by filing 18 criminal appeals under Section 378 of the Code.
7. With a view to highlight the factual aspect, which would enable this Court to appreciate the merits of the appeals, further particulars and information arising from the record of the present case be stated as follows :
--------------------------------------------------------------------- Name of No. of Cri. case No. of Cri. case No. of Cri. case alleged worker for breach of for breach of for breach of provision of provision of Rule 95(1) Section 62(1)(A) Rule 110(A) --------------------------------------------------------------------- Ramnik Ukabhai 220 218 212 Dhirubhai Jivabhai 219 217 211 Ramesh Amrutlal 223 216 225 Mahesh Vyas 224 215 210 Ranjit Kanjibhai 222 214 209 Batuk Thakersibhai 221 213 208 --------------------------------------------------------------------
8. Learned Additional Public Prosecutor during the course of marathon arguments has taken this Court through the relevant evidence relied on by the prosecution to prove the guilt of the accused of the said offences. He has also strongly relied on the evidence of the complainant and has contended that the prosecution has established that the accused had committed breaches of the provisions of Section 62(1)(a) of the Act and Rules 95(1) and 110-A of the Rules of 1963 which are punishable under Section 92 of the Factories Act.
9. After having examined the facts and circumstances and on the correct assessment and appraisal of the testimony and the documentary evidence, this Court is unable to agree with the learned Additional Public Prosecutor. The findings upon which the acquittal is based and the ultimate conclusion arrived at, by the Trial Court, could not be said to be unreasonable. In order to establish the culpability or the criminality for the offences punishable under Section 92 of the Act, the prosecution is obliged to prove its case without any reasonable doubt.
10. The first allegation of the prosecution is that the accused Manager of the said factory has committed breach of the provisions of Section 62(1)(a) of the Act. Section 62 pertains to the maintenance of the register of adult workers. Section 62 of the Act reads as under :-
62. Register of adult workers :- (I) 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 the group works on shifts, the relay to which he is allotted; and
(e) such other particulars as may be prescribed :
Provided that, if the Inspector is of the opinion that any muster roll or register maintained as part of the routine of a factory gives in respect of any or all the workers in the factory the particulars required under this section, he may, by order in writing, direct that such muster roll or register shall to the corresponding extent be maintained in place of, and be treated as, the register of adult workers in the factory.
(1-A) No adult workers shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of adult workers.
(2) The State Government may prescribe the form of the register of adult workers, the manner in which it shall be maintained and the period for which it shall be preserved'.
The Manager of every factory is statutorily obliged to maintain a register of adult workers and it should be made available to the Factory Inspector at all times during the working hours or when the work is being carried out in the factory. If the register of adult workers does not show the particulars relating to the workers, clause (a) of Sub-Section (1) of Section 62 provides that such register must show the name of each adult worker working in the factory. The power to require the register to be made available for inspection by the Factory Inspector is contained in Section 83 of the Act. Under Section 83 of the Factories Act, the State Government is empowered to make rules directing the Manger of the factory to keep register containing such particulars which may be prescribed and requiring register to be made available for examination by the Inspector. There is no dispute about the fact that the provision is made in the Rules by the State of Gujarat in this behalf in the Rules of 1963. Thus, the manner in which register has to be kept necessarily is prescribed and provided in Rules.
11. The second contention of the prosecution is that there was a contravention of the provision of sub-rule (1) of Rule 95 of the Rules of 1963. In Rule 95 in Chapter 8 of the Rules of 1963, specific provision is made with regard to maintenance of leave book. It will be profitable to refer the provisions of Rule 95. Rule 95 reads as under :
'95. Leave Book :- (1) The Manager shall provide each worker with a book in Form No. 19 (hereinafter called the Leave Book). The Leave Book shall be the property of the worker and the Manager or his agent shall not demand it except to make relevant entries therein and shall not keep it for more than a week at a time.
(2) If a worker loses his Leave Book, the Manager shall provide him with another copy on the payment of anna one within fifteen days, and shall complete it from his record.'
It is very clear from the aforesaid provision of Rule 95(1) that the Manager of the factory is also statutorily bound to provide each worker with a statutory book in Form No. 19 which is known as Leave Book. Not only that, the Leave Book will be the property of the worker and the Manager will not be entitled to demand except to make relevant entries therein. There is further provision in Rule 95 that such Leave Book shall not be kept by the Manager or his agent for more than a week at a time. The allegation of the prosecution is that the respondent-accused who was a Manager has violated the provisions of Rule 95(1) of the Rules. This allegation is not upheld by the Trial Court.
12. The third charge, according to the prosecution against the accused is that he violated the provisions of Rule 110-A of the Rules. It relates to the maintenance of identity cards to the workers. There is a purpose and policy behind making such a provision in Rule 110-A. It is a very important provision. It would be therefore, necessary, to refer the said provision. Rule 110-A reads as under :
110-A. Identity Cards : (1) The Manager of every factory shall provide to each worker an identity card with photographs, free of cost, in Form No. 36 and shall enter the serial number of such card against the name of such worker in the register of adult workers maintained by him under Section 62 read with Rule 88 or the register of child workers under Section 73 read with rule 93, as the case may be :
Provided that it shall not be necessary to furnish such identity card to any worker to whom an identity card containing similar particulars and information is furnished under any other law applicable to him.
(2) No worker shall be allowed or required to work in a factory unless he carries while he is at work an identity card, provided under sub-rule (1).
(3) Every worker shall, on demand by an Inspector appointed for the purposes of the Act, produce the identity card provided to him under sub-rule (1).
(4) If any worker loses his identity card, a duplicate card shall be furnished to him by the Manager immediately on production of a recent passport size photograph by the worker for affixing on it, free of charge'.
By virtue of the aforesaid provisions, the Manager of every factory is statutorily bound to supply the identity card with photograph free of cost in a prescribed Form No. 36 i with the name of the worker on the identity card. The serial number of such an identity card is also required to be maintained by him under Section 62 read with Rule 88 in case of adult workers. Whereas, in case of child workers, the Manager is obliged to enter serial number of such a card in a register maintained under Section 73 read with Rule 93. No worker could be allowed or required to work in a factory premises unless he holds such an identity card as provided in Rule 110-A (1). Such identity card could be demanded by the Factory Inspector. The charge that there was violation of the provisions of these Rules is also not upheld by the Trial Court.
13. It is true that infraction or violation of the provisions incorporated in Section 62(1)(a) of the Act and provisions of Rules 95(1) and 110-A of Rules of 1963 are made punishable under Section 92 of the Act. In case if the prosecution, successfully, establishes any one of the aforesaid breaches or violations, the accused could be punished under Section 92 of the Act. Section 92 prescribed general penalty for offences. Whosoever is found guilty for violations of the aforesaid provisions could be sentenced for a term which may extend to two years or with fine which may extend to Rs. 1 lakh or with both. Not only that, if the contravention continues even after the conviction, the accused could be further held liable for fine which may extend to Rs. 1,000/- for each day on which contravention is so continued. Thus, in cases of violation of the provisions under the Factories Act or even in case of non-compliance of the order of the Factory Inspector for removal of deficiencies, the penalty could be imposed as per the provisions of Section 92 of the Act.
14. Even liability of the owner of the premises in certain circumstances is prescribed and provided in Section 93 of the Factories Act. The enhanced penalty after previous conviction could be awarded under Section 94 of the Act. Section 105 of the Act provides the offence as cognizable. Therefore, no Court could take cognizance of any offence under the Factories Act except on complaint by or with the previous sanction in writing of an Inspector. Not only that, no Court below that of the Presidency Magistrate or a Magistrate of a First Class could try such an offence under this Act.
15. It could very well be seen from the aforesaid scheme of the provisions of the Factories Act and Rules thereunder that the Manager or the occupier is statutorily obliged to follow the provisions failing which criminal prosecution could be launched by the Factory Inspector. However, it is also very important to note that in order to succeed in a criminal case, the complainant is bound to establish the guilt of the accused beyond reasonable doubt. It cannot be contended that the principle applicable to every criminal case, should not be extended to cases under Factories Act. The guilt of the accused ought to be established beyond any reasonable doubt. In the light of the facts and circumstances of the case, the Trial Court recorded the conclusion in all the aforesaid 18 criminal cases that the alleged offences against the accused had not been established beyond reasonable doubt.
16. The ultimate conclusion arrived at by the Trial Court appears to be reasonable and just. The aforesaid alleged workers were examined except one before the Trial Court as the prosecution witnesses and they have not supported the prosecution version. Reliance on the complainant's evidence is rightly not placed by the Trial Court. He has also not been able to produce the relevant original record. Exh. 34 on which reliance came to be placed is a Xerox copy of one of the carbon copies of the original register. How could it now contended in an Appellate Court that the Trial Court has seriously erred in not placing reliance on the copy of one of the carbon copies of one of the documents. If this document which cannot be relied on and the evidence of five witnesses who are alleged to be workers in the factory at the relevant time when the Inspector visited the factory, is excluded from the consideration, then nothing remains on record. Admittedly, all the witnesses who are alleged to be workers, have not supported the prosecution case. They have clearly stated that they were not workers at the relevant time.
17. The definition of the worker is provided in clause (1) of Section 2 of the Act. It reads as under :-
'2(1).'Worker' means a person (employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration 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, (but does not include any member of the armed forces of Union'.
Considering the above definition of the worker and the evidence on record, it could safely be concluded that the finding of the Trial Court that the said persons are not proved to be workers in the factory premises of the accused, as defined under Section 2(1) of the Act is quite weighty and justified.
18. Thus, the culpability of the accused for the violation of the provisions of Section 62(1)(a) of the Factories Act and also the provisions of Rule 95(1) and 110-A of Rules of 1963 has not been established beyond reasonable doubt. This Court is satisfied that the ultimate conclusion arrived at by the Trial Court in acquitting the accused from the said charges against him in all the 18 matters is justified and therefore, it requires to be confirmed while dismissing all these appeals under Section 378 of the Code. Accordingly, all these appeals are dismissed.