IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 Crl.Rev.Pet.No. 1213 of 2003 ----------------------------------------------- CRA.195/2001 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.45/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: T.A.TONY, MANAGING DIRECTOR CUM CHAIRMAN, DEFENDER ELECTRONICS (PVT) LTD, 6/127 EDATHURUTHY KODUNGALLOOR, TRICHUR. BY ADV. SRI.JOSE KUTTIYANY SRI.V.C.JAMES SRI.PIOUS MATHEW SRI.ANTONY JOSEPH V. SRI.PAUL JOSE RESPONDENT/RESPONDENT/COMPLAINANT: STATE, REPRESENTED BY THE ADDITIONAL INSPECTOR OF FACTORIES, IRINJALAKUDA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL. 4818/2003 IN CRRP 1213/2003 DISMISSED 6.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1213 of 2003 -------------------------- ORDER Petitioner, the Managing Director and Manager of Defender Electronics (P) Ltd., was convicted under Section 92 of Factories Act for violation of Rules 115(3), 130 and 132 of Kerala Factories Rules, 1957 and sentenced to a fine of Rs.2,000/- for each of the violations. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.No.195/2001. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Revision petitioner would contend that courts below did not properly appreciate the evidence and it should have been found that the premises in question is not a factory as defined under the Factories Act, but a godown and though reliance was placed on Exhibit P5 notification, it CRRP 1213/03 2 is ultravires of the provisions of Factories Act and therefore, based on Exhibit P5 notification, it should not have been found that the premises is a factory. It is also contended that Factories Act and the Rules framed thereunder are not applicable to the institution in question, as there is no three phase connection and only a single phase connection is available and therefore, it cannot be a factory. Without prejudice to the contentions, it is contended that the sentence awarded is excessive. 3. The Additional Inspector of Factories, Irinjalakkuda, examined as PW1, lodged the complaint alleging that petitioner violated the provisions of Rules 115(3), 130 and 132 of Kerala Factories Rules, 1957 and hence, petitioner is liable to be convicted as provided under Section 92 of Factories Act. 4. Learned Magistrate took cognizance of the offences and petitioner pleaded not guilty. CRRP 1213/03 3 Prosecution examined PWs 1 to 3 and marked Exhibits P1 to P14. On the side of the petitioner, DW1, the Secretary of the Grama Panchayat, was examined and Exhibit D1, the copy of the assessment register, was marked. 5. Based on the evidence, learned Magistrate found the petitioner guilty and convicted and sentenced him. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed that findings. The contention of the petitioner is that the premises is not a factory as defined under Factories Act. The contention is based on the ground that even, according to PW1, at the time of his inspection, there were only seven employees and no manufacturing work with the aid of power is being carried out and therefore, it is not a factory. 6. Factory has been defined under Section 2(m) of Factories Act as any premises including the precincts thereof (i) whereon ten or more workers CRRP 1213/03 4 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 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 or a mobile unit belonging to the armed forces of the Union, railway running shed or a hotel, restaurant or eating place. Explanation (I) provides that for computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account. Explanation (II) provides that for the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof shall not be construed CRRP 1213/03 5 to make it a factory if no manufacturing process is being carried on in such premises or part thereof. 7. Therefore, as per the definition, if the premises is employing ten or more workers with the aid of power or twenty or more workers without the aid of power, it would come within the definition of a factory. It is for this reason, petitioner would contend that as the number of employees is less than ten, Factories Act is not applicable. 8. Courts below, relying on the evidence of PW1 and Exhibit P5 notification, found that it is a factory. Exhibit P5 notification, G.O.(Rt)No. 2674/93/LBR & REH dated 18.10.1993, was issued for the Governor by the Commissioner and Secretary to Government, in exercise of the powers conferred by sub-section (1) of Section 85 of Factories Act, in supersession of the earlier notifications declaring that provisions of Factories Act shall apply to any place in the State of Kerala wherein, any manufacturing process specified in Column (2) of CRRP 1213/03 6 the Schedule and described in Column (3) thereof is carried on, notwithstanding that the number of persons employed is less than ten, if working with the aid of power and less than twenty, if working without the aid of power or the persons working therein are not employed by the owner, but are working with the permission of or under agreement with such owner. Under Item No.35 of the Schedule, manufacturing and repairing of electrical goods is included within the ambit of a factory, if three or more persons are employed, when power is used and five or more persons are employed when power is not used. I cannot agree with the submission that Exhibit P5 notification is ultravires. Evidence of PWs 1 and 2 establish that the premises is used for repairing stabilizers and electrical goods by use of power. Hence, when the total number of employees is seven, it would definitely be a factory, as defined under Factories Act with Exhibit P5 notification. The fact that petitioner is not CRRP 1213/03 7 maintaining the muster roll as provided under Rule 130 and also not maintaining a bound inspection book containing the particulars as provided under Rule 132 and failed to provide free of cost an attendance card in form No.28 to every employee in his factory as provided under Rule 115(3) of Kerala Factories Rules, 1957 was not disputed. The only contention raised was that provisions of Factories Act and the Rules framed thereunder are not applicable to this case. As it is found that it is a factory and Factories Act and the Rules apply, it is established that petitioner contravened the provisions of Rules 115(3), 130 and 132 of Kerala Factories Rules, 1957. In such circumstances, conviction of the petitioner as provided under Section 92 of Factories Act is perfectly legal. 9. Then the only question is regarding the sentence. Section 92 of Factories Act provides a punishment of imprisonment for a term, which may extend to two years or fine, which may extend to CRRP 1213/03 8 one lakh rupees or both. Learned Magistrate awarded only a fine of Rs.2,000/- for each of the violations of Rules 115(3), 130 and 132 of Kerala factories Rules, 1957. The total fine amount would come only to Rs.6,000/-. In such circumstances, I find no reason to interfere with the fine or the default sentence. Revision fails and it is dismissed. Judicial First Class Magistrate, Kodungallur is directed to execute the sentence. 6th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1213/03 9 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1213 of 2003 -------------------------- ORDER 6th July, 2010