# [1964] 7 S.C.R. 656

- **Citation:** [1964] 7 S.C.R. 656
- **Court:** Supreme Court of India
- **Decided:** 1962-06-21
- **Case number:** Criminal Appeal No. 5 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-7-s-c-r-656-3095
- **Pages:** 8

## Headnote

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 117System 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. contained 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 officers 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?ility 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

## Text

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 117System 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. contained 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 officers 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?ility 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 Prosecutor v. Vattem Venkatramayya, A.I.R. 1963. Andh. Pra. 106,
Provfncial Government C.l\ and Berar v. Seth Chapsi Dhan.ii
Oswal Bhate and Anr. IL.R. [1940] Nag. 257 and Superinten·
dent and Remembrancer of Legal Affairs, Bengal v. H. E.
Watsrii?. A.T.R. 1934 Cal.
730, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal 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.
by
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
HIDAYATULLAH, J.-On June 21, 1960 at 5-50 AM. the
Inspector of Factories, Bhavnagar, visited Saurashtra Metal
and Mechanical Works, Wadhwan City, which is a factory
within the meaning of s. 2(m)(i) of the Factories Act, 1948.
He found seven 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 s .. 63 of the
Factories Act. 1948 against the respondent Mr. Kansara
Manila! Bhikhalal as the occupier I manager of the factory,
after i>lming notice to him to show cause. He asked for en·
hanced penalty under s. 94 of the Factories Act because the
said Mr. Manila! 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
Hidayalullah, J.
1961
Slate of <Jujarr1t
v.
](an.sara Jfanilal
Bltil:lwTnl
Hida!Jalullali, .f.
658
SUPREME COURT REPORTS
[1964}
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 (Ext. I]) written on
the 2,0th about the change of
timing though the letter, unfortunately, did not reach the
ln:;pector till the 22nd. It was admitted that this change in
the hours of work was not notified and displayed as required
bys. 61(1). It was urged thats. 61(10) 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-s. (10) of s. 61. The contention on behalf of the respondent that this being the first change it was not neces.5ary to
wait for one week before making another change, was not
accepted because it was held that the factcry manager must
always wait for one week before introducing a change. The
respondent was, therefore, convicted under s. 63 of the Factories Act in respect of three offences and under s. 94, enhanced punishment wa:> imposed upon him by ordering him
to pay a fine of Rs. JOO 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 s. 61(10) applied to a case of
second or subsequent change and this being the fimt 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 Ses:<;ions Judge was also of
the opinion that s. 117 of the Factories Act 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 w•!h the
Sessions Judge in hi:; interpretation of s. 61 (10) and did not
express any opinion on s. 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 Factories Act bearing upon the pre·
sent matter may now be examined. It is convenient to do so
,_
'I S.C.R.
SUPREME COURT REPORTS
659
in the reverse orde!-.
Section 92 is a section providing generally for penalties and 6. 94 provides for enhanced penalty
;ifter previous conviction. These sections prescribe penalties
for contravention of any of the provisions of tlie Act or of
any rule made or of any order in writing given thereunder.
The breach here is stated to bt: of s. 63 of the Act which lays
down that the hours of work must correspond with notice
required to be displayed under s. 61 and the register directed
to be 1!1aintained under s. 62. It provides:
"S. 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
jn any f~1ctory' other\visc than in accordance with
the notice of period;; of work for adults displayed
in the faclorv and the entries made beforehand
~.gainst 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 di,·ided into 10 sub-sections of which sub-ss.
m. (2) and ()()1 alone are relevant here. They are as follows:-
"6 l. Notice of periods. of work for adult5.-
(l) 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
~very day
the periods during which adult workers may be required to work.
(21 The periods shown in the notice required by subsection <I) :;hall 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 workin!! in contravention
of any of the provisions of s~ctions Si, 52, 54,
55, 56 and 58 .
•
*
*·
•
•
(JO) Any proposed change m the system of work in
any factory which will necessitate a chan~e in
the notice referred to in sub-section (!) shail 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."
1961
Stat< of Gujaral
v.
.
J[ansara Manila.l
BhikhaJ.al
Ilidayafullak, J.
-.
1964
State of Gujarat
Yo
Kanaara .Manilal
Bhil:halal
660
SUPREME COURT REPORTS
[1964}
Section 62 next provides that a register of adult workers.
shall be maintained irr 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 groupworks on shifts, the relay to which he is allotted and (e) such
other particulars as may be prescribed. Section 51 to which
reference is made in the second sub-section of s. 61, already
quoted, prescribes a 48 hours week; s. 52 refers to weekly
holidays; s. 54 generally fixes a maximum of 9 hours a day
for work; s. 55 fixes the interval for rest and prescribes that
working hours shall not exceed 5 hours at one stretch; s. 56
fixes generally that the period or work and rest should be
spread over IOt hours and s. 58 prohibits the overlapping of
shifts.
The Sessions Judge and the High Court concurred in
holding that the provisions of sub-s. (10) were complied with
and there was thus no offence under s. 63. They treated this
as a change in the system of work in the factory necessitating:
a change in the notice referred to in sulHi. (I) 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 res•
pect 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 word'S 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-s. (l)
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.
7 S.C.R.
SUPREME COURT REPORTS
661
The learned counsel ro\Jght to justify the action by
1964
referring to s. 59 which provides that extra wages for overstate of Guiarot
time shall be paid. No such claim was made earlier in this
v.
"fi
·
h
n] f
h
· ·
f Kamara Manilal
case and justJ cation was soug t o y rom t e prov1s1ons o
Bhiklialal
sub-s. (10) of s. 61 and s. 117 of the Act. Section 59 cannot
be considered in isolation: It has to be read with s. 64, where
Hidaya1,t11a1., J.
the State Government has been given the power to make ·
'exempting rules'. Under those rules a departure from the
provisions of ss. 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 ss. 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 .s. 61(2) 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 s. 61 (I) without any justification by reason of any exempting provisic·n. The respondent was not saved from the operation of s. 63, which is
peremptory, by reason of anything contained in sub<>. (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 occupier I manager of the factory and, in any event, s.
117 of the Act protected him because he was not present
there and his action was bonafide. As 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
s. 117 of the Act requires a more detailed consideration.
That section reads as follows:-
" 17. Protection to persons acting μnder 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."
lt is argued by Mr. M. V. Goswami on the authority of cases
abo_ut to be m~ntio~ed that this section gives protection
agamst prosecution m respect of anything which is done in
good faith under the Act. He referred us to two decisions of
Jf)1;.J
State of fluja.rut
v.
K11n-s(trr1 J[unilal
Bl!ild1nlal
Hiduya(ullal1, .].
662
SUPREME COURT REPORTS
[1964]
Thomas, C. J. in Ranjit Singh v. Emperor(') and Ranjit Singh
v. Emperor,(') in which the learned Chief Justice observes
that the language of s. 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 v.
Mangaldas · Thakker(i and In re. P. Lakshmaialz Naidu(')
in which the same view has been expressed. Mr. D. R. Prem
on behalf of the State of Gujarat relies on The Public Prosecutor v. V11tte111 Venkatramayya(") and Provincial Gm·emment, C.P. and Berar v. Seth Chapsi Dhanji Oswal Bhate
and A11r('). Reference was also made to Superintendent and
Remembrancer of Legal Affairs, Bengal v. H. E. Watson(').
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 hot 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
arc "any thing
* * • done or intended to be done"
1111der the Act. The protection conferred can only be claimed
by a person who can pl·ead 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 action~ 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 necesary 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 mentioned in s. 101. Where an occupier or a manager is charged
('I A.LR. (1943) Oudh 308.
('I A.I.R. (1943) Oudh 311.
(l A.LR. (1958) Andh. Pra. 79.
( 'J I.L.R. (1958) Andh. Pra. 925.
('I A.LR. (1963) Andh. Pra. 106).
(') I.L.R. (1940) Nag. 257=A.I.R. (1938) Nag. 408.
(') A.I.R. (1934) Cal. 730.
7 S.C.R.
SUPRE1\1E COURT REPORTS
663
with an offence he is entitled to make a complaint in his own
WG4
turn against any person who was the actual offender and on
S1·11< ·1· !:11jan1t
proof of the commi~~ion of the offence by such person the .
,..
.
.
l
.
b l . d f
)" b"l"
Tl .
Knn.~"r" 1J11?11!11l
occupier or t 1e manager 1s a so ve
rom
ia 1 1ty.
11s
m,;1.-1,,,,,, 1
shows that compliance with the peremptory provisions of the
Act is essential and unless the occupier or the manager brings
Il>"•10?1"'1111"i.. J.
the real offender to book he must bear the responsibility.
Such a provision largely excludes the operation of s. 117 in
respect of persons guilty of a breach of the provisions of the
Act. It is not necessary that mens 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 s. IOI analysed above
and the occupier and manager can save themselves if they
prove that they are not the real offenders but who, in fact. is.
No such defence was offered here.
For these reasonr, we are of the opinion that the res-"
pondent is not saved by s. 117. We, accordingly, set aside his
acquiital and convict him under s. 63 read with s. 94 of the
Factories Act. He is sentenced to pay a fine of Rs. 50 !- in
respect of each of the offences, or in default to undergo 15
days' simple imprisonment.
Appeal allowed.