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Judgment
Somasundaram, J.—The Petitioner in Crl.R.C. Nos. 867, 871 and 872 of 1969, is the Manager of the Indian National Fire Works situated in Inam Gangarakottai village in Ramanathapuram Dt. The Petitioner in the other two Crl,R. Cs. Nos. 868 and 869 of 1969 is the proprietor.
Sub-section (1) of Section 61 of the Factories Act states that in every factory notice showing the periods of work for adults, etc., should be displayed in accordance with the provisions of Sub-section (2) of Section 108. Sub-section (9) requires that a copy of this notice should sent in duplicate to the inspector. This notice should be in form No. 11 as prescribed by Rule 79. Clause (a) of Section 68 prohibits the employment of a child below 14 or an adolescent for work without a certificate of fitness and this certificate should be in the custody of the manager of the factory. Rule 87 states that the manager should keep a register called the "Leave with wages Register". There should also be a master roll showing all the workers in the factory. Rule 5 framed under the Madras Payment of Wages Rules, 1937 states that a register of wages should be maintained by every pay master and the non-maintenance will be a contravention punishable under Rule 23.
P.W. 1, Thiru Rajeswaran, Inspector of Factories, who visited this concern on 9th December, 1968 at 11-50 a.m. detected these contraventions and launched prosecutions against the Manager and the Proprietor for the aforesaid offences. The defence of the Petitioners was that theirs was not a factory within the meaning of the Factories Act so as to attract the several provisions in respect of which contraventions are complained of. The learned Magistrate has negatived their contentions and sentenced them to pay a fine of Rs. 50 for each contravention. The Petitioners now contend that these convictions are not correct.
u/s 2, Clause (m) of the Factories Act, factory "means" "any premises including precincts thereof-(i) where on ten or more workers are working, or were working on any day of the preceding twelve 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 twenty or more workers are working, or were working on any day of the preceding twelve 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. "Under Clause (L) of this section ''workers'' 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."
D.W. 1, the proprietor of the concern, has disposed that only three persons, are employed in the premises on monthly salary and that the other persons do work in the huts and that they are paid on the basis of the quantity of work turned out by them. He has also deposed that they do not work during specified hours, that Karuppayan, a minor was not employed but had come to the factory bringing meals to ether persons who were employed there on and that as such he cannot be found guilty of contravention of any of the provision of the Act.
P.W. 1, the Inspector of Factories has sworn that different kinds of crackers are manufactured is this factory, that the workers are engaged in chemical mixing, chemical filling, fuse making, label pasting, packeting and ether similar items of work. He has further stated that at every stage there is control and supervision of the work of a foreman and on the day he inspected there were 37 men and 21 women workers. One child worker was also seen by him. Ex. P-2 is his inspection report. He further ascertained from the workers that they were paid on piece rate basis, that is, according to the work turned eat by them. He has also said that chemical mixing and filling could be done only under supervision. D.W. 1 has also admitted in cross-examination that the manager of this factory is also the foreman and that he supervises the work done by others. Later he has qualified it by saying that this supervision is made since no one should smoke inside the factory. His previous answer admits of no ambiguity because he has clearly said that this foreman supervises the work about 100 workers in this factory. These are the facts which emerge in the evidence adduced in the case.
The question as to whether there is the relationship of master and servant between the two parties is a question of fact and as pointed out in Short v. J.W. Henderson Ltd, 1946 S.C.H.L. 24 at 33-34 by Lord Thankerton (1) the master''s powers of selection of his servant; (2) the payment of wages or other remuneration; (3) the master''s right to control the method of doing the work; and (4) the master''s right of suspension or dismissal, are the indicia of a contract of service. The master''s right of superintendence and control of the method of doing the work is the critical test as held in Dharangadhara Chemical Works Ltd. Vs. State of Saurashtra, . In V. P. Gopala Rao Vs. Public Prosecutor, Andhra Pradesh, . the workers were engaged in the stripping stalks from the tobacco leaves. This was done under the supervision of the management''s clerk. It was held that they were ''workers'' within the meaning of the Factories Act.
Now coming to the facts of the case, this Petitioners de not dispute that mere than twenty persons worked in their factory. P.W. 1 has sworn that the work is done in this factory under the supervision of the foreman. D.W. 1 also admits it. Therefore, there can be no doubt on the question that this concern is a ''factory'' within the meaning of the Factories Act and as such they have to adhere to the provisions of the Factories Act relating to the maintenance of registers, submission of reports, employment of workers, etc.
The learned Magistrate in S.T.C. 94 to 96 of 1969 has convicted the revision Petitioner who is common in all these cases on five counts and sentenced him to pay a fine of Rs. 50 under each count. Similarly in S.T.C. 97 and 98 of 1969, he has convicted and sentenced, the revision Petitioner on three counts to pay a fine of Rs. 50 under each count. The convictions are confirmed, but considering the circumstances, the fine is reduced to one of Rs. 10 under such count in default to suffer simple imprisonment for ten days under cash count. With this reduction in sentence the revision petitions are dismissed.