PETITIONER:
JOHN DOUGLAS KEITH BROWN
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT:
17/12/1964
BENCH:
MUDHOLKAR, J.R.
BENCH:
MUDHOLKAR, J.R.
DAYAL, RAGHUBAR
CITATION:
1965 AIR 1341 1965 SCR (2) 639
ACT:
Factories Act (63 of 1948), ss. 52 and 92-Scope of-Violation
by manager-If “occupier” liable.
HEADNOTE:
The appellant was an “occupier”, as defined in s. 20(n) of
the Factories Act, of certain mills. The manager of the
mills contravened the provisions of s. 52 of the Act under
which, whenever workers are required to work on a weekly
holiday, specific permission of the Chief Inspector of
Factories in respect of each and every worker who is
required to work on such a day should be obtained. though
the manager apprised the appellant of what he was proposing
to do, the appellant took no steps to restrain him from
putting into operation a new schedule of work which was in
violation of s. 52. The appellant was charged with an
offence under s. 92 read with s. 52 of the Act and
convicted. The conviction was confirmed by the Sessions
Court in appeal and by the High Court in Revision. In
appeal to the Supreme Court it was contended that under s.
52(i) (b) (i), the duty was cast upon the manager to give
notice to the appropriate authority, of a change in the
weekly holiday, and the omission of the manager to give such
notice would not render the occupier vicariously liable.
HELD : The opening words of the section indicate a
prohibition from requiring or permitting an adult worker to
work in a factory on the first day of the week. This
prohibition is general and is not confined to a manager Me
prohibition is lifted if steps are taken under cls. (a) and
(b). Under cl. (b) the manager could give and display a
notice only for the purpose of securing an exemption from
the prohibition and therefore it does not impose a positive
duty on the manager to do something. It follows that, where
something was done in breach of the prohibition enacted by
s. 52(1), both the manager and the “occupier” would be
liable. [641 E-G]
Moreover, what the manager did was done with the full
knowledge and possibly with the consent of the appellant.
The “occupier” having actual knowledge that the manager was
doing something which was not within the purview of s. 52(1)
cls. (a) and (b), he must be held guilty of the
contravention of the provisions of the sections. [644 E]
State Government of Madhya Pradesh v. Magan Bhai Desaibhai,
A.I.R. (1954) Nag. 41, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 66 of
1962.
Appeal from the judgment and order dated September 11, 1961
of the High Court of Calcutta in Criminal Revision No. 362
of 1961.
J. N. Ghosh, Nuthehari Mukherjee and Sukumar Ghose, for
the appellant.
K. B. Bagchi, B. N. Kirpal for P. K. Bose, for the
respondent.
640
The Judgment of the Court was delivered by
Mudholkar, J. The only point urged in this appeal from a
decision of the High Court at Calcutta is whether the
occupier of a factory is liable to penalty under s. 92 of
the Factories Act, 1948 (hereafter referred to as the Act)
for the contravention of the provisions of s. 52 of the Act.
The appellant is the Managing Director of Jardine Henderson
Ltd., Calcutta, who are the managing agents of the Howrah
Mills Co. Ltd., of Ramkristopur, District Howrah and as such
“occupiers” of the Mills within the definition of the term
contained in s. 2(n) of the Act. One J. P. Bell was the
Manager of the Mills in June, 1957. Both the appellant and
Bell were charged with an offence under s. 92 of the Act
read with s. 52. It would appear, however, that during the
pendency of the trial the Manager was permitted to proceed
to England and the prosecution continued against the
appellant alone. He was convicted of the offence and
sentenced to pay a fine of Rs. 400/- by the Sub-Divisional
Magistrate, Howrah. His appeal therefrom was dismissed by
the Sessions Judge, Howrah. Similarly, the revision
application preferred by him before the High Court was also
dismissed. However, the High Court granted him a
certificate to the effect that the case was fit for appeal
to this Court and that is how the matter has come up before
us.
Reliance was placed before us on behalf of the appellant
upon the decision in State Government of Madhya Pradesh v.
Maganbhai Desaibhai(1) to which I was a party in support of
the contention that where a duty is cast upon a Manager of a
factory to perform a particular act his omission to do so
will not render the occupier. According to learned counsel
the omission of the appellant is that under cl. (b) of sub-
s. (1) of s. 52 of the Act a duty is cast upon the manager
of the factory to give a notice to the appropriate authority
of a change in the weekly holiday from the first day of the
week to any other day and not upon the occupier. According
to learned counsel the omission of the manager to give such
notice would not render the occupier liable in any way
unless it is shown that there was any connivance on his part
of a breach of duty by the manager. This, it is contended,
must necessarily imply that unless the occupier had the mens
rea to contravene the provisions of s. 52(1) of the Act he
would not be liable for the contravention. In the absence
of any evidence to the effect that the appellant knew of the
omission and
(1) A.I.R. 1954 Nag. 41.
641
yet connived at it his conviction and sentence ought,
therefore, to be quashed.
Sub-section (1) of S. 52 reads thus:
“No adult worker shall be required or allowed
to work in a factory on the first day of the
week (hereinafter referred to as the said
day), unless-
(a) he has or will have a holiday for a
whole day on one of the three days immediately
before or after the said day, and
(b) the manager of the factory has, before
the said day or the substituted day under
clause (a) whichever is earlier,-
(i) delivered a notice at the office of the
Inspector of his intention to require the
worker to work on the .said day and of the day
which is to be substituted, and
(ii) displayed a notice to that effect in the
factory
Provided that no substitution shall be made
which will result in any worker working for
more than ten days consecutively without a
holiday for a whole day.”
The opening words of this sub-section indicate a prohibition
from requiring or permitting an adult worker to work in a
factory on the first day of the week. The prohibition is,
however, lifted if steps are taken under cls. (a) and (b) of
that section. A perusal of cl. (b) makes it abundantly
clear that what is required to be done thereunder, that is
to say, to give and display a notice is only for the purpose
of securing an exemption from the prohibition contained in
the opening part of s. 52 of the Act. Clause (b) cannot,
therefore, be likened to some other provisions of the Act
which impose a positive duty upon the Manager to do
something. The prohibition contained in the opening words
of this subsection is general and is not confined to the
Manager. It would, therefore, follow that where something
is done in breach of the prohibition enacted by sub-s. (1)
of s. 52 both the Manager as well as the occupier will be
liable to the penalties prescribed in that section.
We may also point out that exemption from compliance with
the provisions of s. 52 was refused by the Chief Inspector
of Factories as would be clear from the second para of his
reply dated April 8, 1957 to the Manager. It runs thus:
“It is, however, pointed out that instead of
employing workers of C Shift from Sunday
evenings, it
642
would be advisable to employ them on Saturday
evenings. The work done by these workers
after midnight on Saturdays which would be
continued up to the following morning will be
considered towards the work done on Saturdays.
In that case submission of notice under
section 52 of the Act would not be necessary.”
That being the position, we would have had an occasion to
consider Maganbhai’s case() if it were the appellant’s case
that the weekly holiday had been altered without his
knowledge or consent. But that is not so. Moreover, there
is ample material to show that what the manager did was
within the full knowledge of the appellant and, presumably,
was also with his consent. In this connection we may point
out that on January 18, 1957 the Manager of the Mills sent a
letter to the Chief Inspector of Factories which runs thus:
“HOWRAH MILLS COMPANY LTD.
Howrah, West Bengal,
18th January, 1957.
Ref. No. G.12/4968
The Chief Inspector of Factories,
New Secretariat Building, Calcutta.
Dear Sir,
We request you,, Permission to operate the batching ‘Lo
winding departments in No. 1 Mill, as shown on the attached
sheet with effect from Sunday the 27th January, 1957.
An early reply would be appreciated.
It will be noted that all shifts will then work 48 hours per
week.
Yours faithfully,
Sd/- J. P. Bell
Mill Manager.”
A copy of this letter was sent to M/s. Jardine Henderson
Ltd., Calcutta of which the appellant is admittedly the
Managing Director. From the letter of the same date
addressed to the Manager by the General Secretary of Howrah
Jute Mills Karmachari Sangha it would appear that the
workers categorically refused to work according to the
schedule proposed by the Mill
(1) A.I.R. 1954 Nag. 41.
643
Manager. The Sangh, however, proposed alternative working
hours for the “C” shift and there it is suggested that the
workers would work on Sunday from 8.30 P.m. to 6.00 A.m.
This schedule was also accepted by the National Union of
Jute Workers to which some of the workmen in the Mills
belong. This would appear from the letter of its Joint
Secretary, dated January 21, 1957. On February 5, 1957 the
Mill Manager wrote another letter to the Chief Inspector of
Factories requesting for approval of the new Schedule of
working hours. It may be mentioned that oven in the
original schedule of working hours which is appended to the
letter of January 18, 1957 by the Mill Manager the starting
time of the first shift was also 8.30 P.M. on Sunday. On
February 9, 1957 the Chief Inspector of Factories asked the
Mill Manager to forward the resolution of the Works
Committee of the Factory or other documents to show that the
workers had agreed to work in the factory at 8.30 P.m. on
Sundays. The Manager’s reply to it was as follows :-
“Dear sir,
Re: Treble shift working in No.,1
Mill
With reference to your letter No. 818 dated
9th February 1957 we forward herewith as
desired by you two original letters with one
true copy of each from the General Secretary
of Howrah (Jute) Mills Karmachari Sangha and
Joint Secretary of National Union of Jute
Workers requesting the management to adopt the
existing working hours of the “C” shift in No.
1 Mill.
We trust this will be found to be in order and
would request you to kindly return the
original letters after your perusal.
Yours faithfully,
J. P. Bell
Mill Manager”
A copy of this letter was also sent to M/s. Jardine
Henderson Ltd. The fact that copies of letters of January
18, 1957 and February 18, 1957 were sent to Jardine
Henderson Ltd., would fix the occupier i.e., the appellant
before us, with the knowledge of what the Manager had
proposed to do. Therefore, quite apart from the fact that
as the Managing Director of Jardine Henderson
644
Ltd. who were themselves the Managing Agents of the Howrah
Mills, the appellant must be deemed to have known what was
being done by the Manager of the Mills. We have positive
evidence of the fact that the Manager had apprised him of
what he was proposing to do. The appellant took no steps to
restrain the Manager from putting the new schedule in
operation which was in itself in violation of the opening
words of s. 52. We may further point out that what the
provisions of s. 52(1) (a) and (b) permit is to grant
exemptions to specified workmen from the operation of the
prohibition enacted in s. 52 from working in factories on
weekly holidays. No general permission can be granted under
cls. (a) and (b) of sub-s. (1) of s. 52 for altering the day
of the weekly holiday so as to cover all the workmen.
Therefore, -upon the proper construction of the provisions
it is clear that whenever workers are required (or are
permitted) to work on a weekly holiday the specific
permission of the Chief Inspector of Factories in respect of
each and every worker who is required to work on such a day
should be obtained. That being the provision of law the
occupier must be deemed to have known it. Being duly
apprised of the fact that the Mill Manager was seeking to
start the ‘C’ shift from 8.30 P.M. on Sunday without
specifically mentioning the names of -those workmen who had
to work in that shift he was doing something which was not
within the purview of cls. (a) and (b) of sub-s. (1) of s.
52. of this fact the occupier had actual knowledge and,
therefore, he must be held guilty of the contravention of
the provisions of s. 52 of the Act.
The appeal is, therefore, dismissed.
Appeal dismissed.
645