EMPEROR Vs. NARAYAN VITHOBA KALAR

JUDGEMENT

(1.) 1. This case arises on a report made by the Sessions Judge, Amraoti, under Section 438, Criminal P. C. On 21st January 1932 the Inspector of Factories, at a surprise visit to the Jairamdas Bhagchand Ginning and Pressing Factory, found that the shift of eight women workers which was to be changed at 12-30 p. m. was kept working till 1-15 p. m.--which was in contravention of Section 26, Factories Act. The manager of the factory known as "Jairamdas Bhagchand Ginning and Pressing Factory, Dhamangaon," and the mukaddam were tried jointly for an offence punishable under Section 41(a), Factories Act, and sentenced to pay fines of Rs. 40 and Rs. 20 respectively. They moved the Sessions Judge in revision and he made the report recommending that the convictions and sentences, being illegal, be quashed. The question for determination in this case is whether the conviction of the two accused, namely, the manager and the mukaddam, under Section 41(a), Factories Act, is consonant with law. The relevant portion of Section 41 is as follows : If in any factory--(a) any person is employed or allowed to work contrary to any of the provisions of this Act, the occupier and manager shall be jointly and severally liable to a fine which may extend to five hundred rupees.

(2.) THIS section has to be read in conjunction with Section 42, which runs as follows: Where the occupier or manager of a factory is charged with an offence against this Act, he shall be entitled upon complaint duly made by him to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier or manager of the factory proves to the satisfaction of the Court--

(3.) THE determination of the case rests on the definition of the word ' occupier." It has been defined in the Factories Act, 1911, as including a managing agent or other person authorized to represent the occupier. The definition of the word "occupier" is not an exhaustive one. It was held to imply a person who is in actual possession and control of the factory : see Gamadia v. Emperor AIR 1926 Bom 57. In Niranjan Lal v. Emperor (1918) 13 PR 1918 Cr an occupier" of a factory was regarded as the person entitled to the possession or use of the factory. He is the controller, for the time being, of the factory, the person entitled to use the factory for his own or another's profit. He may be the owner, or may be only a lessee or a mortgagee with possession, but it is he who decides whether the factory is to work or to close down. The manager merely carries out the occupier's orders to work the factory and if the occupier designates no manager, the occupier himself shall be deemed to be the manager for the purposes of the Act. In English law the word "occupier" is defined as a person who controls the factory or the workshop and the work that is done there : see 14 Halsbury's Laws of England 447. Lord M'Laren in Ramsay v. Mackie (1904) 7 F 106 described the occupier as: a person who runs the factory, who regulates and controls the work that is" done there, and who is responsible for the fulfilment of the provisions of the Factory Act within it.