Prabhulal Dayalji and Another vs The State

Shah, C.J.—These two revision petition arise out of the prosecution of under the Indian Factories Act and as'' the questions involved in. the petitions are the, same, they are disposed of by this common judgment. In revision petition No. 24 of 1954 the Petitioner Prabhulal Dayalji, Manager of the Kishore Industries, Jamnagar, has been by the First: Glass Magistrate, jaimiagai, leave with wages to the workers of the factory u/s 79(1), Factories Act and sentenced to a line of Its. 51/-.

The learned ''Magistrate has also ordered the Petitioner u/s 102 of the act to pay was in lieu of file leave to certain workers sorted in the order. In Revision petition No. 25 of 1954 the Petitioner fethalal Vallabhdas is the Manager of the Parmar'' Industries, Jamnagar, and he bar-been convicted of the same offence and fined 51/-, and also for contravention of Rules 87 and 38 of the Factory Rules and sentenced to a fine o'' Rs. 15/- in respect of each offence.

An order has also been made by the Magistrate u/s 102 of the Act similar to the one made in the other case and these convictions and the order u/s 102 of the Act have been confirmed by the Sessions Judge on appeal.

The facts relating to petition No. 24 of 1954 are these. The Kishore Industries is a concern manufacturing handle, binges and other hardware articles and it is not disputed that it is inaction within the meaning of the Indian Factories Act. The Seeretar of the Kishore Industries Worker Union having complained to the Factory Inspector by his letter dated 7-11-1919 that none of late workers were given leave with wages and having asked that such leave may he given to them "for the years 1947, 1948 and 1949, tire Factory Inspector unquiet from the Petitioner what the facts were.

The Petitioner stated in his reply workers were paid on piecework, that I really not employees in the strict sense of the term and were not entitled to any leave with wages. Thereafter that Factory Inspector visited the on 10-.12-19-J9 and wrote to the factory on 15-12-1949 on the subject of leave with wages. The Petitioner replied on 2-1 2-19-19 denying ''he workers were "employed" by him within that meaning of the Factories Act and maintained that they were not entitled to any leave with of mlhei stated that the question of granting holidays with pay before tile hulustrhf Irlbnal and that the point raised man be postponed alter the decision of the Industrial Tribunal.

The Factory Inspector thereupon wrote to the Secretary of the Union enquiring whether it was true that the question had be referred to the industrial. Tribunal and it appears that since chore-'' is with pay pond-was a question regarding hold trig before the Industrial TV Inspector dropped the matter The Industrial Tribunal made it and closed the demand for the retrenched workers.

No action was taken there caf� but the PacifiCorp Inspector visit co run; the Factory or ''lie time being, a wade on 6-12-1950 holidays with some time, the . Inspector factory on 21-12-1950 and noticed extant deflects, ixia. of which was that the Factory had Jailed to leave with pay to the workers and had also do the necessary register and pass ink in respect of the same., and by his letter dated u I 19")I he called upon die Petitioner to make good these defects and arrange for leave with pay mimetically.

The Petitioner replied on 1-1-1951, and regarding with pay he suited that almost all the workers were new and had not earned leave will pay and the Indusial Tribunal too had refused his demand of the workers and the question of leave with pay therefore did not arise way longer. Thereafter the factory Inspector filed a complot one. 17-7-1951.

One of tapeline dm!" was I Factories Act, the it should have been made of the Factory Inspector having first come to know'' of the commission of the offence, when lie is it the laetory on .10-12-1019.

Now it is tree that the Factory Inspector had, visited the laetory on 10-12-19-19 and finding that'' the workers were not being given leave with pay,, he had written to the Petitioner about it on 15-12-MM-9 and the Petitioner had replied on 22-12-1949 saying that the workers were not entitled to Slier leave, At the same time the Petitioner had loom-.self stated that the question was pending before (he Industrial Tribunal and that consideration of the same should he postponed, and the question was postponed because it was considered by both sides that the matter should not be pursued till the decision of the Industrial Tribunal.

If fact the Petitioner had asked that the matter should be deferred and it was at his request: that it was so del erred. The fact that leave with pay was not given to the workers was no doubt1 there but whether it amounted to art offence or riot was not clear to the Factory Inspector and, the matter had to be postponed because of. the pending dispute before the Industrial Tribunal, In the circumstances it could not be said that the factory Inspector had come to know at the latest on 22-12-1949 that an offence had been committed.

The dispute before the Industrial Tribunal in Adjudication No. 9 of 1949 was whether the retrenchment of certain workers was legal and proper and whether they should be reinstated, and one of the incidental questions was whether they were entitled to holidays with They and the Tribunal ruled that the demand for holidays with pay was not justifiable and can no be entertained in view'' of the terms'' of the employment of the workers.

The award therefore created the impression in the mind of both Factory Inspector as also the petitioner, that the laves with pay. However the Factory Inspector ''it nailed that the Tribunal''s refusal to give holdup with pay would iota affect the workers'' light under the Factories Act: itself, a right given In the statute, and he, therefore, revived the 1" four after his visit to the factor on 21-12-190 I id by his notice dated 9-1-1951 he ordered the Petitioner to make immediate arrangements to loomed the defect regarding the leave with, pay and also to remedy other defects.

The time lag has thus been sufficiently accounted for. It was urged by Mr. Shah that inasmuch as the Factor" Inspector had come to know of the offence on 10-12-19-19 and had failed to tile a complaint within three months thereof the present complaint cannot appertain to the period prior to 10-12-1949 and the Petitioner cannot he prosecuted for anything done prior to that dale.

The contention is untenable because, as I said the consideration of the. whole question was deferred view of the pending dispute before the Industrial Tribunal, and in -view of the same it coned not be said that the Factory Inspector had come to know that it was an offence, The latter part of the contention therefore, does not survive So far as the prosecution itself complaint was made by the of the therein is concerned, the Factory Inspect for the orientated not I lariednudi r within there normally and it is, Section 100, Factories Act

The prosecution having been launched for failing to comply with the said order the on of the Factory Inspector having come to know of the offence earlier namely, on his to the laetory on 2l-,2-J95() and the complaint being Inquired to be filed within three; mouths of the dab does not really arise, and Mr. Shah has also not pressed it on is ground. The complaint is filed for the disobedience of the order dated 9-1-1951 for which the limitation is six months and since it was filed within that period, it is perfectly within time. In this view it is unnecessary to consider the Question whether the offence was a continuous one and limitation was saved on that, ground,.

Turning to lily merits of the ease, it tiny be noticed that the Petitioner has been convicted for failure to give leave with wages to three workers, namely, layautilal Motichand, Viajlal Daya and Jauinshniikei'' Tmbhulal, who had pill'' in continuous service of twelve months in Samval Year 2004, and Anr. person Chuuilal Covindji who had put ii1 twelve months continuous serve in Sanivat Yea; 2000, and it is in respect of these persons that an order u/s 102 has been made by the learned Magistrate. The learned Sessions'' Judge has sot aside the order u/s 102 in respect of Chunilal Govindji.

Mr. Shali''s first contention is that looking to tiled method of work of the factory, the persons employed are not workers wither the meaning of Section 2(1), Factories Act. It is urged that they arc pieceworkers being paid op the basis of the output of their way�s, that they are not under the control or supervision of the factory and they can come and go at any time. It is argued that these persons cannot be said to be ploys" in the laetory inasmuch as there is n; contract: of service between them and the owner of the factory and therefore no relationship of master and servant between them and the owner.

Now it does appear thinks of the worker''s are paid on the basis of piecework, but: is not correct to say that there is no control or over them and that they are free to conic and at any time they like. Musical rolls are maintained log making the presence of the worked s and they are also given cards in respect of the same. There are fixed hours of work from 8 a.m. to 12 a.m. and 1.30 p.m. to 550 p.m., though it does appear that strict adherence is not insisted unpin ''nee most of the workers are paid at piece rates.

All the same late attendance is noticed. The owner of the factory directs what work the workers are to do and how the work is to be done and he has the power, not only of directing but also of controlling tiled manner of dewing the work. The workers are not free to work in any manner they like and in fact they have got to turn out the work in accordance with the requirements of the owner.

They are not free to do work as and when lie-like because in that ease the " would be a 1981 dislodge of the there the they The 1 deafen may be victor for workers, have and in year made . Sessions 22 in resist looking n'' persons caning of the arc he output of control can come super come and re tarsi and same incited. The e workers i.e. and he also to the work-in like work in owner. when be a dislocation to the working of the various processes el the factory and that is no. permitted-Therefore there is a control over the workers in all the different processes of the manufacture and they cannot be treated as'' independent contractors. The fact that they are paid at piece rates makes no difference to the position.

In this connection Mr. Shah has relied on judgment: of Bavdekar J. of the Bombay High Court in ''Ramriatli v. State of Bombay 1953 Lab. LJ Bom. 329 (A). It was a case relating to persons working in bid making on a certain premises and rifer question- was whether they wore workers as defined in the Factories Act.

The learned Judge pointed out that the word ''employed" in the definition of "worker" in Section 21, of the Act was callable of two meanings, (1) in being engaged or occupied and (2) in a contract of service being established workers and the owner or occupier of aid in the learned judge''s opinion the in the latter sense only in the Faille sense of the scabies of between the factory, word was socries Act.

All that was hi; workers material these facts were Known paid home in the n .that case was that, the piecework and could or making the bid is, but learned judge''s opinion. eoisistcnt with there being no relationship of master and servant between the owner and the bid makers and the conviction was therefore set aside, hi a recent rase a Division Bench of the Bombay High Court has not approved of this view and lias he that the word "employed" used in Section 2(1) did not necessarily involve the'' relationship of niasreianri sonant.

It might be that if one was employed on the basis of wages, there might be a relationship to master and servant, but there were conceivable cases in which tannic might not be the relationship of master-and servant and yet such persons would ho workers''.

The word "employed" occurring in the definition of "workman'' in the Industrial Disputes Act lamps been considered by a Division Both of this Court in ''Dhrangadhra Chemical Works Ltd. v. State of Saurashtra AIR 1955 Sau 33 (B) and the Bench has held that the word "employed" is capable of two meanings namely, in the. sense of licit g engaged or occupied and in the tense of brig�s employed under a contract of .service, implying the relationship of master and sersant cloven the employer; rid the work and the latter sense 1ms been preferred, so that _whereas this decision is in accord wig it differs horn the view taken'' by the Division Bench of the Bombay High Court.

Besides, the case before this Court: was under '' the Industrial Disputes Act. Whatever that might; h having regard to the facts of this- case, it is not necessary, in my opinion; to consider which of in two views is correct. As I stated the facts here I''ll definitely indicate that (here is a control of the ovum over ''he workers of the factory and a compact of service therefore, exists between them and the owner, implying the relationship of master and strvant. They must accordingly be taken as being j ''employed'' within the meaning of Section 2(1), Factories Act

The next question is whether the Petitioner lias contraveneo Section 90(1) of the'' Act. Now the Saurashtra Factories Ordinance (No. 28)'' of 194S was enactment which made provision for labour in factories in Saurasfitra and it on P-M''S-KMS. Subsequent thereto Factories Act was made applicable to Nnmashtra on 1-4-1949.

The definition of "worker" in Section 2d'') of the Ordinance was in material respects Use same as the one contained in Section 2(1), Faetones Act. Chap IV-A of the Ordinance, provided for holidays wile pay, and Section 49-B which dealt with annual holidays says that every worker who has completed period of twelve months'' continuous .service in a factory shall be allowed, during the substvaen1 period of twelve months, holidays ,n the manner provided for in the Section.

Chapter VIII, Indian Factories Act deals with the same- subject, but the Chapter is headed as leave with wages, and Section 79 is similar to Section 49(B) of the Ordinance. It will be recalled that die Petitioner has been convicted in respite of Samvai Year 2004 and since the Ordinance came interfere in about the middle of Jeth Samvai J00.1, the conviction is portly for a period antecedent to the date of the coming into force of .the Ordinance. So far as the conviction in respect of Samvat 2004 is concerned, the provisions of Section 49(B) of the Ordinance ate relevant because the Factories Act came to be applied to Saurashtra in Chain of Samvat 2005.

But, as I said, the material provisions of Section 49(B) to the Ordinance and Section 79, Factories Act are similar. The provisions are that a worker becomes entitled to the leave which called annual holidays with pay, provided lie has coin plated a period, of twelve months" con tit nouns service, and these holidays are to be given subsequent period of twelve months.

The question that arises is whether the conviction in so far as it related to the period antecedent to the coming into force of the Ordinance is j legal. Now three was no factory law in Saul ash-1 tray prior to the Ordinance and evidently therefore the workers did not earn any holiday; with pay prior to the Ordinance; and there was no liability on the employer to give .such holidays. Ties Ordinance had no retrospective operation.

And inasmuch as it affected the substantial tights of persons and did not affect a mere matter to procedure, and inasmuch as it imposed new liability and a penalty for breach of the same, it cannot be given retrospective operation. Mr. Josh I laid stress oh the words has completed" in Section 49-1 B of the Ordinance (and in Section 79(1) of the Act)'' and submitted that these words would mean that] it Wits enough ill the twelve months were completed since the coming into force of the Ordinance.

But in my judgment the words cannot bear that meaning because construe them that way would moan giving retrospective op jupon to the Ordinance. If the Ordinance gives a right to lilt-clays with pay for the first time then it is only just that the holidays should boo earned by putting in twelve months after the. Law the requisite service of came into force.

Therefore the worker in the present case would earn leave prescribed u/s 49(B) only by putting in twelve ninths continuous service after the date of the Ordinance and his previous sere will not count in calculating the said, twelve months'' period. He will get the leave under'' the Section for twelve months'' continuous service, which in the cir . Instances won�t be partly in Samvat 2004 - and partly in Sati 2005, and that leave will he available in the twelve locksmiths'' period subsequent thereto.

Now the complaint here has not been flats on the basis of the business year of die factory which is the Samvat Year, Nor again is it Sled on the basis of the calendar year. The complaint itself states that the twelve months'' period to correspond to the coining into face of the Ordinance, nut it socks So commence the year from 21-0-1947; but that, as I said, is not permissible.

So far as the evidence adduced in the case is concerned it does not show whether the three workers Jayuntilal Motiohand, Vrajlal Daya and Janmashankcr Erabhulal had put in a continuous service of twelve months from the date of the coining into force of the Ordinance, namely, from 24-0-14148, There was some controversy in the lower Courts us lo whether the year should be the calendar year or the Samvat Year, but that has reality no relevance because the period during which the holidays with pay or the leave with wages are to be earned is a twelve months'' period.

Evidently this period is to be calculated in reference to each individual worker. The date of the application of the Ordinance becomes material in this case because there was no factory law previously and therefore the workers did not tarn any holidays with pay, otherwise the twelve months'' period would count from the date a particular worker joined the service of the factory.

Section 79(1) has recently been amended by the Factories (Amendment) Act 25 of 1954 and the amended Section says that every worker who has worked for a period of twelve months or more in a factory during a calendar year shall be allowed leave during the subsequent calendar year in accordance: with the provisions of the Section. The fact that the words "calendar year" are now used indicates that prior to the amendment the calculation for the purpose of holidays with pay or leave with wages was on basis of twelve months'' service, and not on the basis low a year, quite apart from the fact that the year was to be the calendar year or the business year of the factory.

The Petitioner''s conviction, on the basis low the Samvat Year is, therefore clearly wrong and it is even contrary to the prosecution''s own case. So far as the conviction relates to Jayantilal, Radial and Janmshanker, the evidence in the case does. not show that they had put in continuous service of twelve months from 24-6-1948 to 24-6-1949 and there is, therefore, no scope for a conviction on that basis even, apart from certain other considerations urged by Mr. Shah.

So far as Conical is concerned, the conviction in respect of him is for the leave earned by him during the twelve months'' period of Samvat 2007 which commenced on 22-10-1919 and ended on 9-11-1.950. The twelve months'' period in his ease too is calculated with reference to the Samvat Year and it does not correspond to the true calculation according to Section 79(1). It Is not shown that Chnnilal has put in a continuous farley of twelve rots period from June 1919 to June 1950, and there is no scope for a conviction in respect of him too.

No doubt the Petitioner has not given any leave with wages to any of the workers which in the view f am taking the workers were entitled u/s 79(1) of the Act and u/s 49-1 the Ordinance). The difficulty has arisen because he has not maintained any leave registers as acquired by Rule 87, nor any leave book under Rule 88, uncle there is thus no material to verify whether a particular worker has earned leave by twelve mouths continuous service or otherwise.

If the Petitioner has been prosecuted for a contravention of these Rules then the prosecution would have had a valid case. But if he is to be convicted for contravening Section 79(1), then the con. eviction can be rested only on the ground that ho. has failed to give leave with wages for twelve'' months'' continuous service calculated from the date of die application of the Ordinance in aspect low all old workers; and in respect of new workers who joined the factory alter that date horn the date of their entering .service and this position should have been specifically put to the accused and the evidence too should have been adduced on that basis.

it is true the prosecution works under a very great handicap in tins case since the employee us of the factory who are examined have the ton legion to favor the accused, bit that cannot allott the merits of the case. In the circumstances it will not be possible to uphold die conviction.

It was submitted by Mr. Shall that; the workers are also not entitled to any leave wait wages .in view of the, decision of the Industrial Tribunal in Abdication No. 9 of 1948, but this Contention is untenable .for several reason5. The first reason Is that the decision of the adjudicator is not in any way conclusive in a persecution under the Factories Act; and the second reason is that the finding cannot run counter to the salutatory provisions of an Act, and if statutory provisions allow the workers leave with wages, as Section 79 (1), Factories Act does here, then such leave is admissible, whether the adjudicator allows it or not.

Moreover the question before the adjudications in Adjudication No. 9 of 1.94.9 was holidays with pay (which is the'' same as leave with wages in respect of the retrenched workers and not of the workers as a whole. The demand has been rejected .summarily by the learned Adjudicator without assigning any reasons, and there Is no redolence to the provisions of the Indian Factories Act.

Such a decision is altogether valueless, and it) cannot affect, the statutory provisions of Section 79, Factories Act. The plea of the factory that because the adjudicator has refused holidays with pay or leave with wages to the workers, the factory is net liable to give them is therefore altogether unsustainable and the owners of the factory will do well to take note of this fact.

However as the conviction is not warranted for the ether reasons stated above, I allow Revision Application No. 24 of 1954, set aside the conviction and the sentence of the Petitioner Denali and order that the fine, if paid, be refunded. The learned Magistrate''s order rude Section 102, Factories Act is also set aside.

In Revision Application No. 25 of 1954 the Petitioner has been convicted for breach of Section 79(1), Factories Act inasmuch as he failed to give leave: with wages to certain workers, namely the acts of that case are similar to those of the other ease, and since the reasons for the conviction are the same in both the cases, it is unnecessary to examine the evidence separately.

In the view I am taking the grounds of the conviction are unsustainable and the conviction of the Petitioner Jethalal Vallabhdas in respect of Section 79(1) must therefore be sot aside. Accordingly I allow Revision Application No. 25 of 1954 in pint and set aside the conviction in respect of Section 79(1), Factories Act, as also the sentence and order tint the fine, if paid, be refunded. Mr. Shah has not disputed the conviction in respect of Rules 87 and 88, Factories Act and on the merits too that part of the conviction is quite proper. It will, therefore, stand and the application in so far as it latt�s to it will be dismissed.