R E DSOUZA Vs. KRISHNAN NAIR
LAWS(KER)-1968-2-12
HIGH COURT OF KERALA
Decided on February 21,1968

R. E. DSOUZA Appellant
VERSUS
KRISHNAN NAIR Respondents

JUDGEMENT

- (1.) THE petitioner in these cases is the same; and the result of the second case will follow the result of the first case.
(2.) THE petitioner has been convicted under S. 92 of the factories Act for using a building as a factory without obtaining the previous permission in writing of the Chief Inspector of Factories, for failing to apply for registration and grant of licence for the factory and also for failing to maintain a muster roll of the workers employed in the factory in one case, and for failing to give attendance cards to every person employed in the factory in the other case. He has been sentenced to pay a fine of Rs. 20/-in each case. He has also been directed under S. 102 of the Factories Act to rectify the defects within a specified period. In revision, the counsel of the petitioner has contended that no manufacturing process is being carried on in the premisses; and that the persons working there are not workers under the Factories Act. The work done in the premises is the peeling, washing, cleaning, etc. of prawns brought there in lorries. The modus operandi of the work and the type and nature of the workers doing the work are given in Ex P-4, a letter sent by the petitioner to the Inspector of Factories. This document has been marked at the instance of the prosecution; and it is admitted that this contains -the nature, manner, etc of the work that is being done and the type of the workers working there, their remuneration, etc. This document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the night; that the women and girls of the locality, who form a "casual, heterogeneous, miscellaneous and irregular group", come at their convenience and do the peeling, washing, etc. at piece-rates; and that there are no specified hours of work, nor is there any control by the petitioner over their regularity and attendance or of the nature, manner or quantum of their work. The same workers, after finishing the work in the premises of the petitioner, go to other similar premises in the locality, where other lorry loads of prawns are taken. In other words, if more prawns are caught at a particular time, they are brought and distributed among several premises like the petitioner's, and the local women and girls collect at the several premises and do the work at piece-rates. The same workers do not go to the same premises on different occasions; and the owners of the several premises do not have any control over the manner or quantum of work these women and girls do. The rates of remuneration naturally depend upon the quantity of prawns available, the number of women and girls that come to do the work, the hour of the day or the night when the catches arrive etc. Sometimes, for days no work is done in the premises.
(3.) THE first question for consideration is whether the work done in the premises of the petitioner, viz. , peeling, washing, cleaning, etc. of the prawns, is a "manufacturing process" coming within S. 2 (k) of the Factories Act. Under S. 2 (k) "manufacturing process" is defined, inter alia, as "any process for making, altering, repairing, 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. " THE counsel of the petitioner argues that the peeling, washing, etc. of prawns done at the premises is not with a view that the prawns might be used, sold, transported, delivered or disposed of. He argues that the purpose of the work is only to send the prawns to the cold storage plant nearby owned by another person. I do not think this contention has any force. THE prawns are intended for use or sale or other disposal after they are peeled, washed, etc. and preserved at the cold storage plant. It may be that the petitioner is doing only a part of the process, which ultimately ends in the sale or use or disposal of the prawns. But, that does not mean that the work he is doing is not with a view to the sale or use or disposal of the prawns. THErefore, the work done in the premises of the petitioner is certainly a "manufacturing process". The more important question is the next one, viz. , whether the women and girls who assemble at the premises and do the peeling, washing, cleaning, etc. are "workers" coming within S. 2 (1) of the factories Act. "worker" is defined by S. 2 (1) as "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. " The plea of the counsel of the petitioner is that the women and girls who do the work are not "workers" coming within the aforesaid definition, but are "independent contractors". In support of this plea he has cited a few decisions.;


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