EKAMBARANATHA CHETTIAR S Vs. INSPECTOR OF FACTORIES

JUDGEMENT

(1.) THIS revision petition has been filed against the order of the Subdivisional Magistrate, Tirunelveli, convicting the petitioner, under Section 92 of the Factories Act, for violation of the provisions of the Act and sentencing him to pay a fine of Rs. 50. According to the prosecution, he was the occupier and manager of a factory in door No. 16-A, Emperor Street, Tuticorin, and he failed to submit the annual returns in form 21 as per Rule 100 for the period ending 31 December 1963. P. W. 1, Inspector of Factories, on receipt of an anonymous complaint that the accused was running a factory, in violation of the provisions of the Act, inspected the premises on 5 September 1963, at 10-30 a. m. and found 27 persons working. They were stitching old gunny bags and making them fit for use. The accused was present. P. W. 3 was one of the workers. He has also given evidence about the nature of the work and that will be discussed later.

(2.) IT is not disputed by the accused now that 27 persons were working then. But he contends that the premises would not satisfy the definition of "factory" in the Act. This again is based on the subsidiary contentions that the person who were working there would not come under the definition of " worker " in the Act, because they could not be said to have been employed by the accused and they were really contractors who were not amenable to control by the accused as servants, and that further the process of stitching gunnies could not be called a manufacturing process within the definition of the Act. To decide the contentions, it is necessary to quote the relevant definitions in the Act: 2 (1)' 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 or the subject of the manufacturing process. 2 (m)'factory' means any premises including the precincts thereof. . . (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 but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a railway shed. 2 (k) ' manufacturing process? means any process for? (i) 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. . .

(3.) THE first question which will have to be considered is whether each of the 27 persons could be called a worker within the meaning of the Act, assuming for the purpose that the process in which they were engaged was a manufacturing process, and the second question will be whether the process they were engaged in was a manufacturing process. We shall confine ourselves to the first question to start with. Under the relevant portion of the definition, " worker " means a person employed directly or through any agency, whether for wages or not, in any manufacturing process. The controversy turns on the scope of the word " employed. " Sri M. R. Narayanaswami, learned Counsel for the petitioner, has cited a number of decisions showing that the word " employed " has been uniformly construed to denote the relationship of master and servant as distinguished from a contractor for doing a piece of work, and he contends that in this case the relationship was not that of master and servant, and that each of the 27 persons was only an independent contractor doing his portion of the work. The decision which he cited are chronologically: Smith v. General Motor Cab Co. Ltd. 1911 A. C. 188; Annamalai Mudaliar and Bros. v. Regional Provident Fund Commissioner, Madras 1955?i L. L. J. 674; A. M. Chinniah, In re 1957?i L. L. J. 280, Dhrangadhra Chemical Works, Ltd. v. State of Saurashtra 1957?i L. L. J. 477; Modern Match Industries, Gudiyattam v. Labour Appellate Tribunal of India 1957 F. J. R. 202; Chintaman Rao and Anr. v. State of Madhya Pradesh (1957) 19 F. J. R. 103; Ratnaswami Mudaliar, In re 1959?i L. L. J. 631; Public Prosecutor v. Neelamegam Pillai 1964?i L. L. J. 275; and D. C. Dewan Mohideen Sahib and Sons v. United Bidi Workers' Union, Salem 1964?ii L. L. J. 633. He also cited Para. 959 at p. 498 in Halsbury's Laws of England, Vol. 25, Simonds Edition, to the effect that to distinguish between an independent contractor and a servant, the test is whether or not the employer retains the power, not only of directing what work is to be done, but also of controlling the manner of doing the work.