Decided on January 19,1963



Chandra Sekhara Sastry, J. - (1.) In these three criminal revision cases and the writ petition, a common question arises for decision. The facts alleged in the affidavit filed in support of the writ petition are no admitted by the respondents. But in the criminal revision cases, evidence was taken and the facts are investigated and found by the trial Magistrate and by the Sessions Court, Srikakulam in revision it is stated by the learned Counsel appearing it the cases that the decision of the writ petition will be governed by the decision in the criminal revision cases. Therefore, I shall first deal with the criminal revision cases.
(2.) It is also stated by the learned Counsel appearing for the petitioners that the facts in all the three revision cases are similar. So I shall first consider the Criminal Revision Case No. 2347 61 which arises out of SC. No. 1 of 1959 on the file of the Additional District Munsif Magistrate, Sompeta. The accused, Sreeram Rattayya of Palasa is the occupier of Sri Jayasankara Cashew Manufacturing Co., Palasa. The complaint against him is under Section 92 of the Factories Act (63 of 1948) for having failed to construct the cashew-nut breaking shed in accordance with the approved plans and for having failed to frame and display notice of periods of work for adult workers in Form No. 11 and to send copies of the same to the Inspector of Factories and for failure to provide sufficient latrine accommodation separately for men and women workers. The accused admitted these contraventions; but he contended that he was not liable under the Act as his was not a factory. The petitioner purchases cashew-nuts in the local markets and gets them roasted by skilled roasters in their sheds. The roasted cashew-nuts would be broken and the cashew-nut kernel would be extracted in an unbroken condition. Each person that would be engaged for breaking the cashew-nuts and extracting the kernel would be paid remuneration at 3 annas per Kuncham. But no remuneration is paid for the quantity of the broken kernel. In this case, when P.W. 1, the Inspector of Factories inspected the premises, he found 23 women and 2 men working therein. The shed in which the cashew-nuts are broken and the kernel extracted was only 4 feet in minimum height and was straw-roofed, whereas according to the plan approved by the Chief Inspector of Factories, the shed should be of a minimum height of 14 feet with G. I. sheet roofing. Latrine accommodation was not provided and notice of periods of work in Form No. n was not displayed and the copy of the same was not sent to the Inspector of Factories. The main plea is that those working in this shed are not workers within the meaning of Factories Act and that, therefore, their sheds would not be factories within the meaning of that Act. It is claimed that the cashew breakers are not in any way bound to coma for work regularly or at any particular time. There is not any contract of service with them. They can come for work at any time they like and they can leave whenever they like. There is no manner of control or supervision over their work except to see that they do not pilfer the goods, and this supervision is done by women, who are employed to see that the sheds are kept clean. The cashew breakers would receive the remuneration every day when they leave the shed, though some of them may receive their remuneration once a week or in ten days. The trial Magistrate, on a consideration of the evidence in the case found that this is a clear case of contract of service and not a contract of work and that the company itself is a factory within the meaning of the Act. Therefore, he found the accused guilty and convicted him under Section 92 read with Section 6 and Rule 3 (3) and also under Section 92 read with Section 19 and Rule 40 as well as under Section 92 read with Section 61 and Rule 79 and sentenced to pay a fine of Rs. 30.00 under each count and in default to undergo imprisonment for one week under each count. In revision, the learned Sessions Judge, Srikakulam also was of the opinion that the persons working is the accused company are workers within the meaning of Section 2 (i) of the Act and that, as the workers employed in the accused company were more than twenty in number the petitioners company is a factory as defined by the Act and that, as the accused immediately contravened the rules framed under the Act, there is no reason to recommend to the High Court for interference with the conviction and sentence. Hence this criminal revision case was filed questioning the legality of the conviction and sentence, "Worker" is defined in Section 2, Clause (i) as follows: " "Worker" 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." "Factory" is defined in Clause (m) of the same section as follows: "(m) "factory" means any premises including the precincts thereof: (i) Whereon 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 preceding twelve months and in any part of which a manufacturing, process is being carried or without the aid of power, or is ordinarily so carried on,-- but does not include a mine subject to the operation of the Mines Act, 1952 (XXXV of 1952) or a railway running shed;" This case is concerned with Sub-clause (ii) of Clause (m) above quoted. Therefore, it has to be determined whether the persons engaged in breaking cashew-nuts and for extracting the kernel are "workers" within the meaning of Section 2, Clause (1). If it to be held that they are workers, then since admittedly more than twenty persons are working on any day in this company, this premises will be a factory within the meaning of Section 2, Clause (m), Sub-clause (ii). It is not denied that the petitioner is an occupier within the meaning of Section 2, Clause (n) of the Act.
(3.) Now, it is necessary to refer to the facto found by the tria Magistrate on a consideration of the evidence in the case. The company maintains muster-rolls marked as Exs. D-1 to D-3. The same workers had continuously been working on almost all the days in the week during the season. They were also working between fixed hours i.e., from about 7 A. M. till about 4.30 or 5 P.M. They were receiving wages once a week". The workers engaged to break the cashew-nuts have to wait till the evening before they could hand over the kernels to the clerk in charge. There is some sort of control and supervision by the management over the workers. It is in evidence that there are two women supervisors in each shed. Any worker indulging in breaking the cashew-nuts into pieces continuously is liable to be removed.;

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