John Douglas Keith Brown Vs. State of
West Bengal  INSC 297 (17 December 1964)
17/12/1964 MUDHOLKAR, J.R.
CITATION: 1965 AIR 1341 1965 SCR (2) 639
Factories Act (63 of 1948), ss. 52 and
92-Scope of-Violation by manager-If "occupier" liable.
The appellant was an "occupier", as
defined in s. 20(n) of the Factories Act, of certain mills. The manager of the
mills contravened the provisions of s. 52 of the Act under which, whenever
workers are required to work on a weekly holiday, specific permission of the
Chief Inspector of Factories in respect of each and every worker who is
required to work on such a day should be obtained. though the manager apprised
the appellant of what he was proposing to do, the appellant took no steps to
restrain him from putting into operation a new schedule of work which was in
violation of s. 52. The appellant was charged with an offence under s. 92 read
with s. 52 of the Act and convicted. The conviction was confirmed by the
Sessions Court in appeal and by the High Court in Revision. In appeal to the
Supreme Court it was contended that under s.
52(i) (b) (i), the duty was cast upon the
manager to give notice to the appropriate authority, of a change in the weekly
holiday, and the omission of the manager to give such notice would not render
the occupier vicariously liable.
HELD : The opening words of the section
indicate a prohibition from requiring or permitting an adult worker to work in
a factory on the first day of the week. This prohibition is general and is not
confined to a manager Me prohibition is lifted if steps are taken under cls.
(a) and (b). Under cl. (b) the manager could give and display a notice only for
the purpose of securing an exemption from the prohibition and therefore it does
not impose a positive duty on the manager to do something. It follows that,
where something was done in breach of the prohibition enacted by s. 52(1), both
the manager and the "occupier" would be liable. [641 E-G] Moreover,
what the manager did was done with the full knowledge and possibly with the
consent of the appellant.
The "occupier" having actual
knowledge that the manager was doing something which was not within the purview
of s. 52(1) cls. (a) and (b), he must be held guilty of the contravention of
the provisions of the sections. [644 E] State Government of Madhya Pradesh v.
Magan Bhai Desaibhai, A.I.R. (1954) Nag. 41, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 66 of 1962.
Appeal from the judgment and order dated
September 11, 1961 of the High Court of Calcutta in Criminal Revision No. 362
J. N. Ghosh, Nuthehari Mukherjee and Sukumar
Ghose, for the appellant.
K. B. Bagchi, B. N. Kirpal for P. K. Bose,
for the respondent.
640 The Judgment of the Court was delivered
by Mudholkar, J. The only point urged in this appeal from a decision of the
High Court at Calcutta is whether the occupier of a factory is liable to
penalty under s. 92 of the Factories Act, 1948 (hereafter referred to as the Act)
for the contravention of the provisions of s. 52 of the Act.
The appellant is the Managing Director of
Jardine Henderson Ltd., Calcutta, who are the managing agents of the Howrah
Mills Co. Ltd., of Ramkristopur, District Howrah and as such
"occupiers" of the Mills within the definition of the term contained
in s. 2(n) of the Act. One J. P. Bell was the Manager of the Mills in June,
1957. Both the appellant and Bell were charged with an offence under s. 92 of
the Act read with s. 52. It would appear, however, that during the pendency of
the trial the Manager was permitted to proceed to England and the prosecution
continued against the appellant alone. He was convicted of the offence and
sentenced to pay a fine of Rs. 400/- by the Sub-Divisional Magistrate, Howrah.
His appeal there from was dismissed by the Sessions Judge, Howrah. Similarly,
the revision application preferred by him before the High Court was also
dismissed. However, the High Court granted him a certificate to the effect that
the case was fit for appeal to this Court and that is how the matter has come
up before us.
Reliance was placed before us on behalf of
the appellant upon the decision in State Government of Madhya Pradesh v. Maganbhai
Desaibhai(1) to which I was a party in support of the contention that where a
duty is cast upon a Manager of a factory to perform a particular act his
omission to do so will not render the occupier. According to learned counsel
the omission of the appellant is that under cl. (b) of sub- s. (1) of s. 52 of
the Act a duty is cast upon the manager of the factory to give a notice to the
appropriate authority of a change in the weekly holiday from the first day of
the week to any other day and not upon the occupier. According to learned
counsel the omission of the manager to give such notice would not render the
occupier liable in any way unless it is shown that there was any connivance on
his part of a breach of duty by the manager. This, it is contended, must
necessarily imply that unless the occupier had the mens rea to contravene the
provisions of s. 52(1) of the Act he would not be liable for the contravention.
In the absence of any evidence to the effect that the appellant knew of the
omission and (1) A.I.R. 1954 Nag. 41.
641 yet connived at it his conviction and
sentence ought, therefore, to be quashed.
Sub-section (1) of S. 52 reads thus:
"No adult worker shall be required or
allowed to work in a factory on the first day of the week (hereinafter referred
to as the said day), unless- (a) he has or will have a holiday for a whole day
on one of the three days immediately before or after the said day, and (b) the
manager of the factory has, before the said day or the substituted day under
clause (a) whichever is earlier,- (i) delivered a notice at the office of the
Inspector of his intention to require the worker to work on the .said day and
of the day which is to be substituted, and (ii) displayed a notice to that
effect in the factory Provided that no substitution shall be made which will
result in any worker working for more than ten days consecutively without a
holiday for a whole day." The opening words of this sub-section indicate a
prohibition from requiring or permitting an adult worker to work in a factory
on the first day of the week. The prohibition is, however, lifted if steps are
taken under cls. (a) and (b) of that section. A perusal of cl. (b) makes it
abundantly clear that what is required to be done there under, that is to say,
to give and display a notice is only for the purpose of securing an exemption
from the prohibition contained in the opening part of s. 52 of the Act. Clause
(b) cannot, therefore, be likened to some other provisions of the Act which
impose a positive duty upon the Manager to do something. The prohibition
contained in the opening words of this subsection is general and is not
confined to the Manager. It would, therefore, follow that where something is
done in breach of the prohibition enacted by sub-s. (1) of s. 52 both the
Manager as well as the occupier will be liable to the penalties prescribed in
We may also point out that exemption from
compliance with the provisions of s. 52 was refused by the Chief Inspector of
Factories as would be clear from the second para of his reply dated April 8,
1957 to the Manager. It runs thus:
"It is, however, pointed out that
instead of employing workers of C Shift from Sunday evenings, it 642 would be
advisable to employ them on Saturday evenings. The work done by these workers
after midnight on Saturdays which would be continued up to the following
morning will be considered towards the work done on Saturdays.
In that case submission of notice under
section 52 of the Act would not be necessary." That being the position, we
would have had an occasion to consider Maganbhai's case() if it were the
appellant's case that the weekly holiday had been altered without his knowledge
or consent. But that is not so. Moreover, there is ample material to show that
what the manager did was within the full knowledge of the appellant and, presumably,
was also with his consent. In this connection we may point out that on January
18, 1957 the Manager of the Mills sent a letter to the Chief Inspector of
Factories which runs thus:
"HOWRAH MILLS COMPANY LTD.
Howrah, West Bengal, 18th January, 1957.
Ref. No. G.12/4968 The Chief Inspector of
Factories, New Secretariat Building, Calcutta.
Dear Sir, We request you,, Permission to
operate the batching 'Lo winding departments in No. 1 Mill, as shown on the
attached sheet with effect from Sunday the 27th January, 1957.
An early reply would be appreciated.
It will be noted that all shifts will then
work 48 hours per week.
Yours faithfully, Sd/- J. P. Bell Mill
Manager." A copy of this letter was sent to M/s. Jardine Henderson Ltd.,
Calcutta of which the appellant is admittedly the Managing Director. From the
letter of the same date addressed to the Manager by the General Secretary of
Howrah Jute Mills Karmachari Sangha it would appear that the workers
categorically refused to work according to the schedule proposed by the Mill
(1) A.I.R. 1954 Nag. 41.
643 Manager. The Sangh, however, proposed
alternative working hours for the "C" shift and there it is suggested
that the workers would work on Sunday from 8.30 P.m. to 6.00 A.m.
This schedule was also accepted by the
National Union of Jute Workers to which some of the workmen in the Mills
belong. This would appear from the letter of its Joint Secretary, dated January
21, 1957. On February 5, 1957 the Mill Manager wrote another letter to the
Chief Inspector of Factories requesting for approval of the new Schedule of
working hours. It may be mentioned that oven in the original schedule of
working hours which is appended to the letter of January 18, 1957 by the Mill
Manager the starting time of the first shift was also 8.30 P.M. on Sunday. On
February 9, 1957 the Chief Inspector of Factories asked the Mill Manager to
forward the resolution of the Works Committee of the Factory or other documents
to show that the workers had agreed to work in the factory at 8.30 P.m. on
Sundays. The Manager's reply to it was as follows :- "Dear sir, Re: Treble
shift working in No.,1 Mill With reference to your letter No. 818 dated 9th
February 1957 we forward herewith as desired by you two original letters with
one true copy of each from the General Secretary of Howrah (Jute) Mills
Karmachari Sangha and Joint Secretary of National Union of Jute Workers
requesting the management to adopt the existing working hours of the
"C" shift in No. 1 Mill.
We trust this will be found to be in order
and would request you to kindly return the original letters after your perusal.
Yours faithfully, J. P. Bell Mill
Manager" A copy of this letter was also sent to M/s. Jardine Henderson
Ltd. The fact that copies of letters of January 18, 1957 and February 18, 1957
were sent to Jardine Henderson Ltd., would fix the occupier i.e., the appellant
before us, with the knowledge of what the Manager had proposed to do.
Therefore, quite apart from the fact that as the Managing Director of Jardine
Henderson 644 Ltd. who were themselves the Managing Agents of the Howrah Mills,
the appellant must be deemed to have known what was being done by the Manager
of the Mills. We have positive evidence of the fact that the Manager had
apprised him of what he was proposing to do. The appellant took no steps to
restrain the Manager from putting the new schedule in operation which was in
itself in violation of the opening words of s. 52. We may further point out
that what the provisions of s. 52(1) (a) and (b) permit is to grant exemptions
to specified workmen from the operation of the prohibition enacted in s. 52
from working in factories on weekly holidays. No general permission can be
granted under cls. (a) and (b) of sub-s. (1) of s. 52 for altering the day of
the weekly holiday so as to cover all the workmen.
Therefore, -upon the proper construction of
the provisions it is clear that whenever workers are required (or are
permitted) to work on a weekly holiday the specific permission of the Chief
Inspector of Factories in respect of each and every worker who is required to
work on such a day should be obtained. That being the provision of law the
occupier must be deemed to have known it. Being duly apprised of the fact that
the Mill Manager was seeking to start the 'C' shift from 8.30 P.M. on Sunday
without specifically mentioning the names of -those workmen who had to work in
that shift he was doing something which was not within the purview of cls. (a)
and (b) of sub-s. (1) of s. 52. of this fact the occupier had actual knowledge
and, therefore, he must be held guilty of the contravention of the provisions
of s. 52 of the Act.
The appeal is, therefore, dismissed.