LexSTATE OF GUJARAT versus KANSARA MANILAL BHIKHALAL
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1964 .April 7 • 656 - -- --- ----~-----~-~ '; '' SUPREl\IE COURT REPORTS STATE OF GUJARAT .. ;; . \ , v . . ' . \ ~. KANSARA MANILAL BHIKHALAL [1964] [M. HIDAYATULLAH AND N. RA.JAGOPALA AYYANGAR, JI.] · Factories Act, 1948 (Act 63 of 1948, ss. 61, 63, 101 and 117- System of. work-Hours changed-Failure to notify-Applicabi. lity of s. '61(10)-Protective clause-Scope Responsibility of offence-Mens Rea, if necessary to establish. On. insp.;ction ·three of the worlanen 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 v.;ork -\vas not notified and displayed as required by s. 61(1) of the· Factories Act. The Tespondent as the occupied/manager of the factory Was ·convicted. under s. 63 ·of the Act. On appeal, the Sessions .Judge acquitted the respondent holding that the second :Part of s. 61(10) 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 s. ·61(10), and further s. 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 inter· pretation of s. 61(10) but expressed no opinion on s. 117 of the · Act and it dis!Ilissed .the .appeal. On appeal by spec!al leave: Held:· (i) The respondent, was not saved from the operac ti on of s. 63 which is peremptory,· by reason of· anything. con- tained in S. 61,(10) and the sending of the letter to the Inspector of Factories v.1aS -therefore misconceived. The :words "change in· the system of work in any factory which. will necessitate a change in the notice" in s. 61(10) 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 t e required to work" and these words are descriptive 0f the scheme of employment <>f 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 whilch 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 lnip!ies 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. (iti) The language of s. 117 of the Act is not limited to offi- cers but is made wide to include "any person". The protection conferred can onlv 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. 7 S.C.R. SUPRE)IE COURT REPOHTS 657 1964 (iii) The occupier and. mana~er,' are exempted from lia?i- lity in certain cases ment1oned in s. 101. ~her~ an occupier State of Guja.ral. <>r a manager is charged with an ?ffence he is entitled to make v. a complaint in his own turn against any person who \vas the J[ansara Manila! actual offender and on such proof the occupier or th_e rnana~er Bhil.:!1alal is atsolved 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 rnens rea must always be established. The responsibility exists without a guilty mind. Ranjit Singh v. Emperor, Al.R. (1943) Oudh 308, Ranjit Singh v. Emperor, A.LR. (1943) Oudh 311, Public Prosecutor v. Mangaldas Thakkar, A'.I.R. [1958] Andh. Pra. 79, In re P. Lakshmaiah Naidu. I.L.R. [1958] Andh. Pra. 925, Public Prose- cutor v. Vattem Venkatramayya, A.I.R. 1963. Andh. Pra. 106, Provfncial Govern
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