Case: State of Kerala Vs. Patel (V. M.)

Hidayatullah, J.1. This appeal, with the special leave of this Court, is directed against an order of the High Court of Kerala dismissing a complaint filed under the Factories Act, 1948, against the respondent, who was sentenced to a fine of Rs. 5 by the Sessions Judge, Anjikaimal. The appellant is the State of Kerala.2. On 10 November 1953, an Inspector of Factories inspected the premises occupied by a firm known as the Gujarat Travancore Agency at Mattancherry. He found that 23 persons were employed in the process of garbling pepper and packing them in bags. They were working without the aid of power. The respondent, V. M. Patel, who is a partner in the said firm, was prosecuted as an occupier of the factory under S.92 of the Factories Act. He was charged with three offences under Ss. 6(1)(a), 6(1)(d) and 7 of the Factories Act read with the rules, for failure to apply for registration, to obtain the permission of the Chief Inspector of Factories before commencing the work, and for not sending a notice under S. 7 containing the information required under that section and rule 12. The prosecution examined four witnesses in support of the case, and produced some correspondence and the sanction to prosecute, obtained under S.105 of the Factories Act from the Chief Inspector of Factories and Boilers. It may be mentioned here that no notification was issued by the State Government under S.85 of the Factories Act declaring that the provisions of the Factories Act were to apply to this factory.3. Three questions arose at the trial, and they were whether the premises could be called a factory where manufacturing process was going on, whether manufacturing process could be said to be going on, and lastly, whether the persons garbling pepper could be said to come within the definition of "worker", so as to bring the respondent within the penalty of the law. The Magistrate, who tried the case, held on all the three points against the respondent and imposed a fine of Rs. 51. On appeal, the Sessions Judge upheld the conviction, but reduced the fine to Rs. 5. On revision by the High Court, the conviction was set aside, and the respondent was acquitted. It is, in these circumstances, that the present appeal with special leave has been filed by the State. The short question in this case is whether the definition of "worker" as given in the Factories Act can be said to apply to the persons who were working on the premises of the firm on 10 November, 1953. The work they were doing has been described by the witnesses in the case. It consisted of winnowing, cleaning, washing and drying pepper on concrete floor. A similar process was also being applied to ginger, which was dipped in lime and laid out to dry in a warehouse on the premises. The work also consisted in putting the product into bags and baskets. The contention of the respondent was that the persons working on his premises were not employed by him, and were thus not his workers, to make him liable. In this connexion, P.W. 3, the works supervisor, was examined by the prosecution. He stated that the labourers were not working for daily wages for the respondent and that he (P.W. 3) had provided these labourers and had undertaken a contract for cleaning pepper for which he was paid at the rate of Rs. 6 per candy. He, therefore, claimed to be what the respondent described as an "independent contractor" employing his own labour and executing work for payment, though on the premises of the respondent.4. In so far as the manufacturing process is concerned, we have no doubt that, in view of the width of the definition given in the Factories Act in S. 2(k), the work of garbling pepper or of curing ginger would come within that definition. The definition reads as follows :"manufacturing process means any process for -(i) . . . packing, . . . washing, cleaning, . . . or otherwise treating . . . any article or substance with a view to its use, sale, transport, delivery or disposal . .The treatment of pepper and ginger was thus a manufacturing process. This takes us to the definition of a "factory." That is contained in S. 2(m) and reads as follows :"factory means any premises including the precincts thereof -(i) * * *(ii) whereon twenty or more persons 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 onThe definition of "manufacturing process" read with the definition of "factory" is, in our opinion, sufficient to make the premises in question a factory, if twenty or more persons were employed.5. We have, however, to consider the definition of "worker" as it is on the interpretation of that word that the entire controversy in this case centres. A worker is defined in S. 2(l) as follows :"Worker means a person employed, directly or through any agency, whether for wages or not, in any manufacturing process . . . or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process; ".No doubt, the definition is very wide, and appears to take in any person employed in any manufacturing process, howsoever his services may have been obtained, and whether or not he is remunerated by wages. The respondent, however, relies upon a decision of this Court in Sri Chintaman Rao and another v. State of Madhya Pradesh [1958 - II L.L.J. 252] whether certain tests, for determining who is a worker within this definition, have been laid down. The appellant seeks to distinguish this case, and we have only to see whether it covers the present facts or not. Before we do so, we may state that the ruling made a distinction between workers employed by an owner and workers employed by an independent contractor. Emphasis was laid upon the word "employed" in the definition, and it was observed that unless the workers were employed "by the factory, " there would be no responsibility on the occupier or the manager, if the employment proceeded from some independent contractor. The ruling thus gave a restricted meaning to the words of the definition "employed in any manufacturing process, " and laid emphasis upon the word "employed" as denoting the relationship of master and servant, between the factory and the person employed in the manufacture.That case was concerned with the manufacture of bidis, and the accused was the manager of a bidi factory which employed independent contractors, who were known as sattedars, for the supply of bidis. The sattedars manufactured the bidis in their own factories by entrusting the work to persons to whom the price was paid by the main factory after delivery and approval. The Inspector of Factories, on inspection of the main factory, found that some sattedars and their coolies who had come to deliver bidis, were working on the bidis brought by them within the main factory. The manager was prosecuted for failure to maintain the register of these workers and for allowing them to work in the factory without proper entries being made in the attendance register. It was held that the sattedars and the coolies employed by them were not "workers" within the definition, and that no offence was, therefore, established. It was observed that, to determine whether a person was a "worker, " the proper test was to see whether or not the "employer" had control and supervision over the manner in which the work was to be done. The distinction between an independent contractor and a servant was adverted to. That distinction is well-known. An independent contractor is charged with a work, and has to produce a particular result; but the manner in which the result is to be achieved is left to him. A servant, on the other hand, may also be charged with a work and asked to produce a particular result, but is subject to the directions of the master as to the manner in which the result is to be achieved. This distinction was utilized to determine whether the sattedars and his coolies were workers of the main factory or not, and it being found that the occupier and manager of the main factory had no control over them, it was held that they were not the workers of the main factory.Though the earlier case of this Court is somewhat different on facts, the principle of it is equally applicable here. The "Moopan" or the works supervisor was like an independent contractor, because he was the sole judge of the number of the persons required to be employed, their hours of work, their remuneration and the manner in which they were to execute the work. The High Court of Kerala has adverted to this fact though it had not the advantage of seeing the decision of this Court, and, in our opinion, the conclusion reached by it cannot now be challenged because it has considerable support from the decision of this Court referred to above. It was contended by the State that the words "employed in" in the definition did not necessarily bring in the element of relationship of master and servant, and anyone working on the premises in a manufacturing process would answer the definition. It is possible to take such a view, but the matter is no longer open after the decision of this Court, and the restricted meaning given in the ruling must be applied. Following, therefore, the decision of this Court, we hold that the order of the High Court is right in all the circumstances of this case.6.

Decision:
0[ds]No doubt, the definition is very wide, and appears to take in any person employed in any manufacturing process, howsoever his services may have been obtained, and whether or not he is remunerated by, however, relies upon a decision of this Court in Sri Chintaman Rao and another v. State of Madhya Pradesh [1958II L.L.J. 252] whether certain tests, for determining who is a worker within this definition, have been laiddown. The appellant seeks to distinguish this case, and we have only to see whether it covers the present facts or not. Before we do so, we may state that the ruling made a distinction between workers employed by an owner and workers employed by an independent contractor. Emphasis was laid upon the word "employed" in the definition, and it was observed that unless the workers were employed "by the factory, " there would be no responsibility on the occupier or the manager, if the employment proceeded from some independent contractor. The ruling thus gave a restricted meaning to the words of the definition "employed in any manufacturing process, " and laid emphasis upon the word "employed" as denoting the relationship of master and servant, between the factory and the person employed in the manufacture.That case was concerned with the manufacture of bidis, and the accused was the manager of a bidi factory which employed independent contractors, who were known as sattedars, for the supply of bidis. The sattedars manufactured the bidis in their own factories by entrusting the work to persons to whom the price was paid by the main factory after delivery and approval. The Inspector of Factories, on inspection of the main factory, found that some sattedars and their coolies who had come to deliver bidis, were working on the bidis brought by them within the main factory. The manager was prosecuted for failure to maintain the register of these workers and for allowing them to work in the factory without proper entries being made in the attendance register. It was held that the sattedars and the coolies employed by them were not "workers" within the definition, and that no offence was, therefore, established. It was observed that, to determine whether a person was a "worker, " the proper test was to see whether or not the "employer" had control and supervision over the manner in which the work was to be done. The distinction between an independent contractor and a servant was adverted to. That distinction isAn independent contractor is charged with a work, and has to produce a particular result; but the manner in which the result is to be achieved is left to him. A servant, on the other hand, may also be charged with a work and asked to produce a particular result, but is subject to the directions of the master as to the manner in which the result is to be achieved. This distinction was utilized to determine whether the sattedars and his coolies were workers of the main factory or not, and it being found that the occupier and manager of the main factory had no control over them, it was held that they were not the workers of the main factory.Though the earlier case of this Court is somewhat different on facts, the principle of it is equally applicable here. The "Moopan" or the works supervisor was like an independent contractor, because he was the sole judge of the number of the persons required to be employed, their hours of work, their remuneration and the manner in which they were to execute the work. The High Court of Kerala has adverted to this fact though it had not the advantage of seeing the decision of this Court, and, in our opinion, the conclusion reached by it cannot now be challenged because it has considerable support from the decision of this Court referred to above.It was contended by the State that the words "employed in" in the definition did not necessarily bring in the element of relationship of master and servant, and anyone working on the premises in a manufacturing process would answer the definition.It is possible to take such a view, but the matter is no longer open after the decision of this Court, and the restricted meaning given in the ruling must be applied. Following, therefore, the decision of this Court, we hold that the order of the High Court is right in all the circumstances of this case.