iminal Appeal No 5 of 1963
Appeal by special leave from the judgment and order dated June 21 1962 of the Gujarat High Court in Criminal Appeal No 383 of 1961
D R Prem and B R G K Achar for the appellant
M V Goswami for the respondent
April 7 1962
The Judgment of the Court was delivered by HIDAYATULLAH J
On June 21 1960 at 5 50 AM the Hi Inspector of Factories Bhavnagar visited Saurashtra Metal and Mechanical Works Wadhwan City which is a factory within the meaning of section 2m1 of the 
He found even workmen working on a machine and on examining the notice of period of work for adult workers and the register of workers he found that three of the workmen belonged to a group which was expected to begin work from 7 AM He commenced proceedings under section 63 of the against the respondent Mr Kansara Manilal Bhikhalal as the occupiermanager of the factory after issuing notice to him to show cause
He asked for enhanced penalty under section 94 of the because the said Mr Manilal Bhikhalal was convicted on a previous occasion in three cases
As three workmen were concerned three separate complaints were filed in the Court of the Judicial Magistrate First Class Wadhwan City
The defence of the respondent was that he was not the occupier and manager of the factory
It may be pointed out that one Mr Dangi and the respondent are partners
They have another factory at Dharangadhra and the defence was that Mr Bhikhalal was manager at the Dharangadhra factory 658 and Mr Dangi was manager at Wadhwan
Another defence
was that a machine had gone out of order the previous day and after it was repaired work was started a little earlier the next day because production had suffered and goods were required
The Inspector it was stated was informed by a letter Ext11 written on the 20th about the change of timing though the letter unfortunately did not reach the Inspector till the 22nd
It was admitted that this change in the hours of work was not notified and displayed as required by section 611
It was urged that section 6110 permitted a change to be made in the system of work in a factory and as this provision was fully complied with there was no offence
The Judicial Magistrate did not accept these defences
According to him Mr Dangi s letter Ext 15 showed that the respondent was the occupier and the manager of the factory at Wadhwan
On the second defence the Magistrate was of the opinion that the hours of work could not be changed without the permission of the Inspector of Factories under sub section
10 of section 61
The contention on behalf of the respondent that this being the first change it was not necessary to wait for one week before making another change was not accepted because it was held that the factory manager must always wait for one week before introducing a change
The respondent was therefore convicted under section 63 of the in respect of three offences and under section 94 enhanced punishment was imposed upon him by ordering him to pay a fine of Rs 100 in respect of each offence
On appeal the Sessions Judge of Surendranagar ordered the acquittal of the respondent
The learned Sessions Judge held that the second part of section 6110 applied to a case of second or subsequent change and this being the first change it did not fall within the second part
According to the Sessions Judge it fell in the first part of the sub section and the change could not be said to have been effected in breach of that part since the Inspector of Factories was informed about the change
The learned Sessions Judge was also of the opinion that section 117 of the protected the action because it was bonafide
The conviction and sentence were accordingly set aside
The State of Gujarat appealed against the acquittal but was unsuccessful
A Division Bench of the High Court which heard the appeal agreed with the Sessions Judge in his interpretation of section 61 10 and did not express any opinion on section 117 of the Act
In this appeal filed by special leave of this Court these two points have again arisen for our consideration
The scheme of the bearing upon the present matter may now be examined
It is convenient to do so 659 in the reverse order
Section 92 is a section providing generally for penalties and section 94 provides for enhanced penalty after previous conviction
These sections prescribe penalties for contravention of any of the provisions of the Act or of any rule made or of any order in writing given thereunder
The breach here is stated to be of section 63 of the Act which lays down that the hours of work must correspond with notice required to be displayed under section 61 and the register directed to be maintained under section 62
It provides section 63
Hours of work to correspond with notice under section 61 and register under section 62 No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory
 Section 61 deals with the notice of periods of work for adults
It is divided into 10 sub sections of which sub sections
1 2 and 10 alone are relevant here
They are as fol lows 61
Notice of periods of work for adults 1 There shall be displayed and correctly maintained in every factory in accordance with the provisions of sub section 2 of section 108 a notice of periods of work for adults showing clearly for every day the periods during which adult workers may be required to work
2 The periods shown in the notice required by subsection 1 shall be fixed beforehand in accordance with the following provisions of this section and shall be such that workers working for those periods would not be working in contravention of any of the provisions of sections 51 52 54 55 56 and 58
10 Any proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub section 1 shall be notified to the Inspector in duplicate before the change is made and except with the previous sanction of the Inspector no such change shall be made until one week has elapsed since the last change 660 Section 62 next provides that a register of adult workers shall be maintained in which will be shown a name of each adult workers in the factory b the nature of his work c the group if any in which he is included d where his group works on shifts the relay to which he is allotted and e such be prescribed
Section 51 to which second sub section of section 61 already hours week section 52 refers to weekly fixes a maximum of 9 hours a day interval for rest and prescribes that exceed 5 hours at one stretch section 56 fixes generally that the period of work and rest should be spread over 10 12 hours and section 58 prohibits the overlapping of shifts
The Sessions Judge and the High Court concurred in holding that the provisions of sub section
10 were complied with and there was thus no offence under section 63
They treated this as a change in the system of work in the factory necessitating a change in the notice referred to in sub G 1 and held that as the change was notified to the Inspector before it was made there was nothing illegal in employing the three workers before their shift commenced
They also held that as this was the first change there was no need to wait for a week or to obtain the previous sanction of the Inspector as required by the latter part of the tenth sub section
With due respect to the High Court we do not agree that this sort of case is contemplated by the tenth sub section
That sub section speaks of change in the system of work in any factory which will necessitate a change in the notice and these words refer not to a departure from the notice but to a change in the system a change which would require the notice to be recast
The notice shows the periods during which adult workers may be required to work and these words are descriptive of the scheme of the employment of labour in the factory but are not apt to contemplate the time of employment for each individual worker
That can only be found by referring to the register which goes with the notice
Sub section
1 makes no mention of the change in the register but of the change in the notice and thereby indicates that the change which is contemplated is an overall change affecting a whole group and not an individual worker
The latter part of the sub section also points in the same direction because it implies that such changes should not be frequent and if the change is for the second time it should not be made until one week has elapsed since the last change
This cannot possibly refer to a casual change in the hours of work of an individual worker
661 The learned counsel sought to justify the action by referring to section 59 which provides that extra wages for over time shall be paid
No such claim was made earlier in this case and justification was sought only from the provisions of sub section
10 of section 61 and section 117 of the Act
Section 59 cannot be considered in isolation It has to be read with section 64 where the State Government has been given the power to make exempting rules 
Under those rules a departure from the provisions of sections 51 52 55 and 56 can be made but only in accordance with the rules so framed as for example overtime work may be taken from workers engaged on urgent repairs in spite of the provisions of sections 51 54 55 and 56 but must be in accordance with rule 91 and the urgency which is referred to in this section and the rule is an urgency relating to the factory and not an urgency felt by the constituents of the factory 
A departure from the hours of work as laid down in section 612 can only be made in those cases in which the exempting provisions of the rules cover the case and not otherwise
It would therefore appear that the offence which was committed in the case was the employment of workers contrary to the notice displayed under section 611 without any justi fication by reason of any exempting provision
The respon dent was not saved from the operation of section 63 which is peremptory by reason of anything contained in sub section
10 and the sending of the letter to the Inspector of Factories was therefore mis conceived
It was contended before us that the respondent was not the occupiermanager of the factory and in any event section 117 of the Act protected him because he was not present there and his action was bonafide
A  to the first part of this argument it is sufficient to say that the Magistrate found that he was the occupier and manager
The letter of Mr Dangi Ext 15 quite clearly establishes this
The argument under section 117 of the Act requires a more detailed consideration
That section reads as follows 17
Protection to persons acting under this Act
No suit prosecution or other legal proceeding
shall lie against any person for anything which is in good faith done or intended to be done under this Act
 It is argued by Mr M V Goswami on the authority of cases about to be mentioned that this section gives protection against prosecution in respect of anything which is done in good faith under the Act
He referred us to two decisions of 662 Thomas C J in Ranjit Singh vs Emperor1 and Ranjit Singh vs Emperor2 in which the learned Chief Justice observes that the language of section 117 is not limited to the inspecting staff but is wide enough to include occupiers managers foremen workers etc
Mr Goswami also refers to two decisions of the Andhra Pradesh High Court in Public Prosecutor vs Mangaldas Thakker3 and In re
P Lakshmaiah Naidu1 in which the same view has been expressed
Mr D R Prem on behalf of the State of Gujarat relies on The Public Prosecutor vs Vattem Venkatramayya5 and Provincial Government CP and Berar vs Seth Chapsi Dhanji Oswal Bhate and Anr6
Reference was also made to Superinte dent and Remembrancer of Legal Affairs Bengal vs H E Watson7
It is not necessary to refer to the lines of reasoning adopted in these cases
The language of this protecting clause is not limited to officers but is made wide to include any person
It thus gives protection not only to an officer doing or intending to do something in pursuance or execution of this Act but also to any person
But the critical words are any thing    done or intended to be done under the Act
The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions
It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it
Even assuming that an act includes an omission as stated in the General Clauses Act the omission also must be one which is enjoined by the Act
It is not sufficient to say that the act was honest
That would bring it only within the words good faith
It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done
There must be a compliance or an intended compliance with a provision of the Act before the protection can be claimed
The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise
In this connection it is necessary to point out as was done in the Nagpur case above referred to that the occupier and manager are exempted from liability in certain cases men tioned in section 101
Where an occupier or a manager is charged 1 AIR 1943 Oudh 308
2 AIR 1943 Oudh 311
3 AIR 1958 Andh
Pra 79
4 ILR 5 AIR 1963 Andh
Pra 106
6 ILR 1938 Nag 408
7 663 with an offence he is entitled to make a complaint in his own turn against any person who was the actual offender and on proof of the commission of the offence by such person the occupier or the manager is absolved from liability
This shows that compliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility
Such a provision largely excludes the operation of section 117 in respect of persons guilty of a breach of the provisions of the Act
It is not necessary that means rea must always be established as has been said in some of the cases above referred to
The responsibility exists without a guilty mind
An adequate safeguard however exists in section 101 analysed above and the occupier and manager can save themselves if they prove that they are not the real offenders but who in fact No such defence was offered here
For these reasons we are of the opinion that the respondent is not saved by section 117
We accordingly set aside his acquittal and convict him under section 63 read with section 94 of the 
He is sentenced to pay a fine of Rs 501 in respect of each of the offences or in default to undergo 15 days  simple imprisonment


Summary:
On inspection three of the workmen were found working in a factory before their shift commenced
It was stated that the Inspector of Factories was informed by a letter written a day prior to this inspection about the change of the timing though the letter did not reach the Inspector till the day after the inspection
This change in the hours of work was not notified and displayed as required by section 611 of the 
The respondent as the occupiedmanager of the factory was convicted under section 63 of the Act
On appeal the Sessions Judge acquitted the respondent holding that the second part of section 6110 of the Act applied to a case of second or subsequent change in the system of work in a factory and this being the first change there was no need to wait for a week or to obtain the previous sanction of the Inspector as required by the later part of section 61101 and further section 117 of the Act protected the action because it was bonafide
The State appealed to the High Court which agreed with the Sessions Judge in his interpretation of section 6110 but expressed no opinion on section 117 of the Act and it dismissed the appeal
On appeal by special leave Held i The respondent was not saved from the opera tion of section 63 which is peremptory by reason of anything contained in section 6110 and the sending of the letter to the Inspector of Factories was therefore misconceived
The words change in the system of work in any factory which will necessitate a change in the notice in section 6110 refer not to departure from the notice but to a change in the system a change which would require the notice to be recast
The notice shows the period during which adult workers may be required to work and these words are descriptive of the scheme of employment of labour in the factory but are not apt to contemplate the time of employment for each individual worker
That can only be found by referring to the register which goes with the notice
Sub section 1 makes no mention of the change in the register but of the change in the notice and thereby indicates that the change which is contemplated is an over all change affective to a whole group and not an individual worker
The latter part of the sub section also points in the same direction because it implies that such changes should not be frequent and if the change is for the second time it should not be made until one week has
elapsed since the last change
ii The language of section 117 of the Act is not limited to officers but is made wide to include any person
The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions
It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it
657 iii The occupier and manager are exempted from liabi lity in certain cases mentioned in section 101
Where an occupier or a manager is charged with an offence he is entitled to make a complaint in his own turn against any person who was the actual offender and on such proof the occupier or the manager is a solved from liability
This shows that compliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility
It is not necessary that means rea must always be established
The responsibility exists without a guilty mind
Ranjit Singh vs Emperor AIR 1943 Oudh 308 Ranjit Singh vs Emperor AIR 1943 Oudh 311 Public Prosecutor vs Mangaldas Thakkar AIR  In re P Lakshmaiah Naidu ILR  Public Prosecutor vs Vattem Venkatramayya AIR 1963
Pra 106 Provincial Government CP and Berar vs Seth Chapsi Dhanji Oswal Bhate and Anr
ILR and Superintendent and Remembrancer of Legal Affairs Bengal vs H E Watson  referred to