# [1967] 2 S.C.R. 507

- **Citation:** [1967] 2 S.C.R. 507
- **Court:** Supreme Court of India
- **Decided:** 1967-01-30
- **Case number:** Criminal Appeals Nos. 135-138 of 1962
- **Bench:** M. Hidayatullah, S. M. Sjkri, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-2-s-c-r-507-4000
- **Pages:** 13

## Headnote

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Factories Act, (63 of 1948) s. 101-Mancgef or occupier-When can
be absolved from liability.
The appellant, who was the manager of a factory had i~ued notices
warning the heads of various departments in the factory to strictly comply
with the provisions o{ the Factories Act and also that there should be no
double employment. Certain workers were found
working in a
third
shift contrary to the notice of periods displayed in the factory. A com·
plaint was filed against the appellant for contravention of s. 63 of the Act.
On receiving the summons, he filed in his tum a complaint under s. 101,
impleading as accused the salesman and supervisor as actual offenders. The
evidence showed that the appellant was not present when the offence was
committed, that the salesman and oupervisor were incharge of the depart·
ment, that the appellant did not allow any worker to work in the third
shift, on the material date, that he did not re.:eive any information from
the salesman and the supervioor about their proposal to have a third shift
on that date, that he came to know about the occurrence the next day, and
that,
immediately thereafter,
he took action against the salesman and
supervisor. The salesman and the supervisor pleaded guilty to the charge
The trial Court held that the offence had taken place with the consent,
knowledge or connivance of the appellant, from the fact that the wages
were paid by the Mill to those workers, and convicted the appellant and
discharged the salesman and supervisor.
The High Court confirmed the
order of the trial Court.
Jn appeal to this Court :
HELD : The appellant
should be discharged and the salesman and
supervisor should be convicted.
Under s. 101, when the manager or occupier is charged \\'ith an offence~
he is entitled to make a complaint, in his own turn, to establish facts
mentioned in the said section, viz,., (i) that he bas uoed due diligence to
enforce the e<ecution of the Act, and (ii) that the alleged actual offenders
committed the offence in question without his consent, knowledge or connivance. If he is able to establish that it was such other person, who has
committed an offence, and satisfies the other requirements of the said
section, the manager or occupier is absolved from all liability. [516 F-H;
517 DJ
The facts clearly established that the salesman and supervisor pleaded
guilty to the oharge, that the appellant had used due diligence to enforce
the execution of the Act, and that the offence was committed by the salesman and supervisor without the connivance,. knowledge or consent of the
appellant.
State of Gujarat v. Koinsara Mani/al Bhik/wlal [1964] 7 S.C.R. 656,
followed.

## Text

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MANEKLAL JINABHAJ KOT
I'.
STATE OF GUJARAT & ORS.
January 30, 1967
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[M. HIDAYATULLAH, S. M. SJKRI AND C. A. VAIDIALINGAM, JJ.J
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Factories Act, (63 of 1948) s. 101-Mancgef or occupier-When can
be absolved from liability.
The appellant, who was the manager of a factory had i~ued notices
warning the heads of various departments in the factory to strictly comply
with the provisions o{ the Factories Act and also that there should be no
double employment. Certain workers were found
working in a
third
shift contrary to the notice of periods displayed in the factory. A com·
plaint was filed against the appellant for contravention of s. 63 of the Act.
On receiving the summons, he filed in his tum a complaint under s. 101,
impleading as accused the salesman and supervisor as actual offenders. The
evidence showed that the appellant was not present when the offence was
committed, that the salesman and oupervisor were incharge of the depart·
ment, that the appellant did not allow any worker to work in the third
shift, on the material date, that he did not re.:eive any information from
the salesman and the supervioor about their proposal to have a third shift
on that date, that he came to know about the occurrence the next day, and
that,
immediately thereafter,
he took action against the salesman and
supervisor. The salesman and the supervisor pleaded guilty to the charge
The trial Court held that the offence had taken place with the consent,
knowledge or connivance of the appellant, from the fact that the wages
were paid by the Mill to those workers, and convicted the appellant and
discharged the salesman and supervisor.
The High Court confirmed the
order of the trial Court.
Jn appeal to this Court :
HELD : The appellant
should be discharged and the salesman and
supervisor should be convicted.
Under s. 101, when the manager or occupier is charged \\'ith an offence~
he is entitled to make a complaint, in his own turn, to establish facts
mentioned in the said section, viz,., (i) that he bas uoed due diligence to
enforce the e<ecution of the Act, and (ii) that the alleged actual offenders
committed the offence in question without his consent, knowledge or connivance. If he is able to establish that it was such other person, who has
committed an offence, and satisfies the other requirements of the said
section, the manager or occupier is absolved from all liability. [516 F-H;
517 DJ
The facts clearly established that the salesman and supervisor pleaded
guilty to the oharge, that the appellant had used due diligence to enforce
the execution of the Act, and that the offence was committed by the salesman and supervisor without the connivance,. knowledge or consent of the
appellant.
State of Gujarat v. Koinsara Mani/al Bhik/wlal [1964] 7 S.C.R. 656,
followed.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
198-205 of 1964.
508
SUPREME COURT REPORTS
[1967] 2 s.c.R.
Appeals by special leave from the judgment and order dated
February 4, 1964, of the Gujarat High Court in Criminal Appeals
Nos. 135-138 of 1962 and Criminal Revision Applications 176-179
of 1963.
Purshottam Trlcwndas and R. Gopalakrishnan, for the appellant
(in all the appeals).
Y. L. Teneja, S. P. Nayyar and R. H. Dhebar, for respondent
No. I (in all the appeals).
The Judgment of the Court was delivered by
Vaidialingam, J. These appeals, by special leave, are directed
against the judgment of the Gujarat High Court, confirming the
conviction, by the City Magistrate, Ahmedabad, of the appellant of
an offence under s. 92 of the Factories Act, 1948 (Act 63 of 1948)
(hereinafter called the Act), for breach of s. 63 of the said Act, and
cancelling a rule issued by it to respondents 2 and 3, herein, to
show cause against the order of discharge passed by the trial Court.
The appellant was the Manager of the Saranpur Cotton Manufacturing Co. Ltd., Mill No. 2. The Inspector of Factories,
Ahmedabad, found, on a visit to the factory concerned, at 3 a.m.
on May 26, 1961, certain workers actually working in the stamping
department, at that time. According to the register of workers,
maintained by the factory, in the form of attendance register,
those workers belonged to Group II, Relay II.
According
to the notice of periods of work, displayed in the factory, the period
of work for Group II, Relay II, was from 4 p.m. to 8 p.m., and from
8.30 p.m. to 1.00. a.m. According to the Inspector, the workers
concerned were doing work at 3 a.m., on the said date, otherwise
than in accordance with the notice of periods of work displayed in
the factory and entries made in the register of adult workers and,
therefore, there has been a contravention of the provisions of s. 63
of the Act, punishable under s. 92 thereof. Inasmuch as several
workmen were concerned, the Inspector had filed a group of 4
complaints, against the appellant, on August 4, 1961, before the City
Magistrate, Ahmcdabad.
On receiving summons from the Magistrate's Court, the appellant, who was, admittedly, the Manager of the Mill concerned,
filed, on October 5, 1961, in his turn, a complaint before the Magistrate, under s. 92, read with s. IOI of the Act. To that complaint,
responden.ts 2 and 3 were impleaded as
accused.' According
to the appellant, about 2,400 workers are employed in the
Mill, of which he is the Manager; and the Mill consists of several
departments,
with competent heads,
having
been
put
in
charge of each department. The appellant stated that the management had instructed all the departmental heads to comply with the
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provisions of the Act. He referred to the fact that he had specifically warned the various heads of the departments against double
employment. He also averred that the second respondent was the
Salesman of the Mill, for about twelve years, and that he was in charge
of some departments of the Mill, including the stamping department. Tht third respondent was a Supervisor in the stamping
department and was in exclusive charge of the said department. The
appellant further averred that the stamping department of the Mill
was under the exclusive control of accused No. I, on May 26,
1961, and that it was in the sole charge of accused No. 2 at 3 a.m.,
onMay26, 1961. Therefore, he alleged, that respondents 2 and 3
were responsible for allowing the concerned workmen to
work at 3 a.m. in the stan)ping department of the Mills, on May
26, 1961, contrary to the notice of periods of work displayed
in the factory. Therefore, he averred that those two respondents
were the actual offenders who had violated s. 63 and thus committed
an offence under s. 92 of the Act, by so employing those workers,
referred to in the Factory Inspector's report. The appellant further
stated that he was not present in the Mills when the said offence
was committed by respondents 2 and 3, and that he had used due
diligence to enforce the execution of the Act; and that respondents
2 and 3, who were the accused in his cross-complaint, had committed the· offences in question, without his knowledge, consent or
connivance. Therefore he prayed for an inquiry into his allegations
and to hold respondent~ 2 and 3 guilty of the offence of violation of
the provisions of s. 63 of the Act.
Before we go into the further proceedings that took place before
the Magistrate, it is desirable to refer to some of the material provisions of the Act, viz., ss. 63, 92 and IOI. Those sections are as
follows :
"63. No adult worker shall be required or allowed to
work in any factory otherwise than in accordance with the
notice of periods of work for adults displayed in the factory
and the entries made beforehand against his name in the
register of adult workers of the factory.
92. Save as is otherwise expressly provided in this Act
and subject to the provisions of section 93, if in, or in
respect of, any factory there is any contravention of any of
the provisions of this Act or of any rule made thereunder
or of any order in writing given thereunder, the occupier
and manager of the factory shall each be guilty of an offence
and punishable with imprisonment for a term which may
extend to three months or with fine which may extend to
five hundred rupees or with both, and if the contravention
is continued after conviction, with a further fine which may
extend to seventy-five rupees for each day on which the
contravention is so continued.
510
SUPREME COURT REPORTS
[1967] 2 s.c.it.
10 I. Where the occupier or manager of a factory is
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charged with an offence punishable under this Act, he shall
be entitled. upon complaint duly made by him and on giving
to the prosecutor not less than three clear days' notice
in writing of his intention so to do, to have any other
person whom he charges as the actual offender brought
before the Court at the time appointed for hearing the
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charge; and if, after the commission of the offence has
been proved, the occupier or manager of the factory, as
the case may be, proves to the satisfaction of the Court.
(a) that he has used due diligence to enforce the
execution of this Act, and
(b) that the said other person committed the offence
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in question without his knowledge, consent or connivance.-
that other person shall
be convicted of the offence
and shall be liable to the like punishment as if he were the
occupier or manager, of the factory, and the occupier or
manager, as the case may be, shall be' discharged from
any liability under this Act in respect of such offence;
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Provided that in seeking to prove as aforesaid, the
occupier or manager of the factory, as the case may be.
may be examined on oath, and his evidence and that of
any witness whom he calls in his support shall be subject
to cross-examination on behalf of the person he charges as
the actual offender and by the prosecutor.
"
There is no controversy. in this case, that the appellant is the
Manager of the factory concerned and he is the person who has been
charged with having committed an offence punishableunderthe Act.
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It was, when such a complaint was made against him that he, in
turn, filed on October 5, 1961, the cross-complaint against resII
pondents 2 and 3, which has been referred to earlier. There is also
no controversy that he ha~ complied with the requirement regarding
the giving of notice, as contemplated under s. IOI.
In this case, it has also been admitted that the workers, refer·
red to in the complaint filed by the Factory Inspector, have been
employed at 3 a.m., on May 26, 1961, in the stamping department
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of this factory, contrary .to the provisions of s. 63 of the Act, and,
therefore, the commission of the offence with which the appellant
was charged, has also been proved. Under those 'circumstances,
it is open to the Manager of the factory, in this case the appellant
to have recourse to the provisions of s. IOI of the Act, by complaining against persons who, according to him are the actual offenH
ders and bring them before the Court. But, before a conviction of
those persons, so brought before the Court, can be made for the
offences concerned, the appellant will have to prove to the satisf
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MANBKLAL v. GUJARAT (Vaitfr'alingam, !.)
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faction of the Court (i) that he has used due diligence to enforce
the execution of the provisions of the Act; and, (ii) that such other
person committed the offence in question, without his knowledge,
consent or connivance. It must also be noted that the appellant,
in seeking to prove these circumstances, can be examined on oath
and that he and any other witness, whom he places before the Court
in his support, shall be subject to cross-examination, on behalf of
the person he charges as the actual offender, and also by the Public
Prosecutor. We are specially referring to this aspect because, we may
have to consider the question as to whether, either respondents
2 and 3, whom the appellant charges as being the actual offenders.
or, the prosecutor in this case,
l'iz., the
Factory Inspector
has
established,
by
cross-examination
of
the appellant
that he has not proved the two essential conditions mentioned in
clauses (a) and (b) of s. IOI.
Reverting to tne further proceedings before the Magistrate,
summons were issued to respondents 2 and 3, on the cross-complaint
filed by the appellant on October 5, 1961. On December, l, 1961,
the appellant pleaded not guilty to the charge levelled against him by
the Factory Inspector. He stated that he had not committed any
breach of s. 63 of the Act, and he specifically requested that the complaint filed by him against respondents 2 and 3 herein, who are the
Salesman and Supervisor, respectively, be enquired into by the
Court.
The second respondent, Bachubhai, on the same day, in answer
to the charge levelled against him, by the appellant, that he and the
third respondent were liable for the breach of provisions of s. 63
of the Act for permitting the concerned workers to work at 3 a.m,
on May 26; 1961, pleaded guilty before the Magistrate. On the
same day, he had filed a written statement, pleading guilty to the allegations made against him in the cross-complaint, and expressing
regret for having committed a breach of the Act. He also admitted
that he was in exclusive charge of the stamping department, on May
26, 1961. He further averred that the 3rd respondent approached
him, on May 25, 1961, and represented that it was quite necessary
to work a third shift in the stamping department from 1 a.m., on
May 26, 1961, in view of heavy accumulation of work. He further stated that he allowed the third respondent to work a third shift
but by employing new workers, and that it was only on May 27,
1961, that he came to know that the third respondent had employed
the same workers in the third shift also and that he took him to task.
He categorically stated that he had not informed the appellant about
the proposed working of the third shift on May 26, and that it was
without the knowledge, consent or connivance of the appellant,
that this breach was committed. He
admits that the appellant
had specifically warned him against double employment.
Ultimately, he pleaded, for being let off, with a nominal fine.
512
SUPREME COURT REPORTS
[1967] 2 S.C.R.
Similarly, the third respondent, who apeared before the Court
on the same day, in answer to the same charge, pleaded guilty; and
he also filed a written statement. In the written statement,
he
stated that he was the Stamping Supervisor of the Mill, on the relevant
date and that due to accumulation of work in the stamping department, it was found necessary by him, to have a third
shift on the morning of May 26, 1961.
He states that the 2nd
respondent permitted him to start a third shift after engaging new
workers.
But, as new workers were not available on that date, the
workers in the second shift were engaged by him; and he accepts
that, by doing so, he has committed an offence, by mistake. He
also categorically admits that he has not taken the pennission of the
appellant, for starting "ne said third shift and that it was done
without tl}e knowledge of the appellant. He also, ultimately, pleaded
for being penalised, by imposing a small amount of fine.
On the same date, the Factory Inspector, has given evidence
as P.W. I. He has spoken to the fact that at the time of his visit at
3 a.m., on May 26, 1961, he found, in the stamping department of
the Mill, of which the appellant was the Manager, the concerned
adult workmen working and that their employment was contrary
to the hours of work prescribed for them in the notice put up in the
factory.
He has further stated that the appellant was not present
in the Mill at the time of his inspection and that, on the other hand
respondent No. 3, the Supervisor, was there.
In cross-examination, he has referred to the fact that the Mill
employs about 2,400 workers and that there are several departments
in the Mill and that heads are appointed for each department.
Though he has stated that he does not know if the Manager has
given
instructions
to
the
heads
of the departments
to
comply with the provisions of the Act, when the notices, Exhibits
9 to 12, were shown to him. he accepted that those notices had been
given by the appellant.
He has also stated that, generally, t~
Salesman is the head of the Cloth department, including the Stamping Department. Pausing here for a minute, we may state that
this answer of the witness will show that the second respondent,
who was the Salesman, is the head of the Cloth Department, including the Stamping departmeut and that the statement of the appellant, in that regard, stands corroborated.
The appellant has given evidence, on December 6, 1961. In
his evidence, he has referred to the fact that he attends to his duties
from 11.30 a.m. to 6.30 p.m., and that there are about 2,400 workers
employed in the Mill, which consists of several departments and for
each of which a head had heen appointed, by the Management.
He has 1eferred to the fact that provision is made in the terms and
conditions of appointment that the heads of departments are to
abide by the provisions of the Act. He speaks to the fact that he has
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given instructions to the heads of departments, from time to time,
to follow the provisions of the Act and, in particular, he refers to
Exhibits 9 to 12, beginning from January 30, 1957 and ending with
November 30, 1960, insisting upon the heads of departments to
comply strictly with the provisions of the Act and warning against
double employment. He has deposed that the second respondent
was in charge of the Cloth Department, of which the Stamping Department formed part. The third respondent, according to him,
is the Supervisor of the Stamping Department; and that when he
came to know about the breach alleged against him, on May 27,
1961, he enquired into the matter and suspended the third respon
dent for 4 days and severely· warned the second responder.t
after receiving his explanation. He has also stated that he did not
receive any information from either the 2nd respondent or the 3rd
respondent, that there was to be a third shift on the morning of
May 26, 1961, and that he had not allowed any worker to work in the
third shift after they had worked in the second shift.
He has also
stated that he did not give any consent to the working of those
workers and he had no knowledge at all about it. In crossexamination he has stated that he goes round the entire mill,
sometimes daily, and on some occasions, on the second or third day.
He has denied a suggestion that he was aware that the second
respondent had asked the third respondent to make the same
workers work during the third shift.
The point to be noted, in the evidence of the Factory Inspector,
and of the appellant, is that the Inspector admits that the appellant
was not present at the time of his inspection and that the third
respondent was present and that the 2nd respondent is the Salesman
and the 3rd, the Supervisor. He accepts that particular persons have
been appointed in the Mill as heads of the various departments
and that the Salesman is generally the head of the Cloth Department, including the Stamping Department. He also admits that the
appellant has issued notices, exhibits 9 to 12, warning the. heads of
departments to strictly comply with the provisions of the Act and
also stating that there should be no double employment. The
appellant's evidence, that the second respondent was incharge of the
Cloth Department, at the material time, and that
he has been
warned against double employment on several occasions, and that
he was not aware of the employment of the workers concerned, in
the third shift, on the morning of May 26, 1961, have not been challenged. The answers given by the appellant that he did not give his
consent to the working of those concerned workers and that he
has no knowledge about their having worked at the material time
is not also seriously challenged. More than that, there is absolutely
no suggestion made to the appellant that there is any sort of collusion
between him and resportdents 2 and 3, and that the latter are merely
admitting the offence'in the cross-complaint filed by the appellant,
'514
SUPREME COURT REPORTS
(1967] 2 S.C.R.
to oblige him. Respondent 2 and 3 have categorically admitted the
offence mentioned against them in the cross-complaint; and the
appellant has not heen cross-examined by them, as they are entitled
to under the first proviso to s. 101.
We arc particularly referring
to ~vme of these aspects, bccau~e. in our opinion, those arc all
matters which should have been properly taken into account, by
the Magistrate and the High Court, for considering the question as
to whether the appellant has proved, to the satisfaction of the Court
the two essential matters dealt with by clauses (a) and (b) of s. 101
of the Act.
On this state of evidence, the learned Magistrate held that the
appellant cannot be considered to have established either that he
has used due diligence to enforce the execution of the Act as required
under cl. (a) of s. 101, or that respondents 2 and 3 committed
the offence, in
question, without his knowledge, consent
or
connivance.
According to the trial Court, from the mere
fact that respondents 2 and 3 have pleaded guilty, it cannot be
said that thay have committed the breach without the connirnnce
of the appellant. The Magistrate, while realising that there was no
direct evidence of consent or knowledge on the part of the appellant,
yet, from the fact that the wages were paid by the Mill to those
workers, held that it could be safely inferred that the offence must
have taken place on the material date with the consent, knowledge or
connivance of the accused. On these
findings, the Magistrate
discharged respondents 2 and 3 and found the appellant guilty of
having violated the provisions of s. 63 of the Act, and as such. convicted him under s. 92, and ordered him to pay a fine of Rs. 400/-
or, in default, suffer simple imprisonment for 3 weeks.
Tb appellant filed appeals before the Gujar:.t High Court
against the judgment of the Magistrate, challenging his conviction.
It is seen that the High Court issued notices to the 2nd and 3rd respondents, to show cause why the order of discharge passed by the
Magistrate, for offences under ss. 63. 92 and 101 of the Act,
should not be set aside; and those references have been numbered.
in the High Court, as Criminal Revision Applications Nos. 176 to
179 of 1963.
All the matters were heard together and disposed of
by a common judgment by the High Court. The learned Judges
of the High Court have upheld the judgment of the Magistrate,
holding
the
appellant
guilty.
In
view
of this direction.
the High Court discharged the rule issued to respondents 2 and 3.
The learned Judges arc also of the view that the appellant cannot be considered to have established that he had used due diligence
to enforce the e~ecution of the Act. The relianc.c which has been
placed by the appellant regarding the circulars issued
by
him, e,·idcnced
~Y Exhibits 9 to 12,
has
not
impressed
the learned
Judges. Though there
is
no
separate
and
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independent discussion as to whether the appellant has been able
to establish that respondents 2 and 3
have committed the
offences, without his knowledge, consent or connivance, there is a
general finding by the learned Judges that the fact that the appellant
had specifically mentioned, in his circulars issued, about double
employment and the fact that the wages for the workers concerned
have been met by the factory, will lead to the inference that the
employment of the workers, which is the subject of the charge, could
not have been made without the knowledge, consent or, in any
case, the co:mivance of the accused. There is, again, no separate
consideration, by the learned Judges, about the plea of guilt made
by respondents 2 and 3. Ultimately, holding that the appellant
had not proved that he has used due diligence to enforce the execution
of the Act and that respondents 2 and 3 have committed the offence
without his knowledge, consent or connivance, the learned Judges
dismi~sed the appeals filed by the appellant against his conviction
and also cancelled the rule issued to respondents 2 and 3. This
comprehensive order, passed by the High Court, confirming the
order of the Magistrate convicting the appellant, and dischargi:--g the
rule issued to respondents 2 and 3 in the criminal revisions and
dismissing the said revisons, is the subject of attack in these proceedings.
Mr. Purshottam Tricumdas, learned counsel for the appellant,
has urged that the entire approach made by both the Magistrate
and the learned Judges of the High Court, for holding the appellant
guilty of the offence, with which he was charged, is erroneous in law.
Counsel also urged, that, in this case, the appellant has Jet in unchallenged and uncontroverted evidence to establish the two essential matters referrred in els. (a) and (b) of s. IOI of the Act and
these aspects have not been properly considered in Jaw. Counsel
also pointed out that, without adverting to the material evidence
on record,
the inference drawn by
the
Court that
the
appellant has not proved those matte•-s,
is totally opposed to
the evidence adduced in the case. In fact,
counsel pointed
out, that the evidence adduced by the appellant to establish
that he has used due diligence to enforce the execution of the Act
and that respondents 2 and 3 committed the offence in question without his knowledge, ~nsent or connivance, apart from not being
challenged in cross-examination, has really been supported by the
evidence given by the Factory Inspector, as P.W. I, and the written
statements filed by respondents 2 and 3.
In short, according to
the counsel, s. IOI of the Act has not been properly applied.
On the other hand, Mr. Taneja, counsel for the State of Gujarat,
has pointed out that the findings arrived at by both the Magistrate
and the learned Judges of the High Court are, on facts, as against
the appellant, which findings have been arrived at, after an appreciation of the material evidence adduced in the case.
M2Sup. CI/67-4
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(1967) 2 S.C.R.
We are not satisfied that there has been a correct legal approach
made either by the Magistrate or the High Court, to a decision on
the pica recorded by the appellant,
especially with regard to matters refe1 red to in s. IOI of the Act. It is not necessary for us, in this
case, to consider, in any great detail, the ingredients of an offence
under s. 63 of the Act, because a violation of the said provision 1s
admitted by the appellant, as well as by respondents 2 and 3. The
appellant has invoked s. IOI.
In considering this provision, it is
necessary to refer to the observations made, by this Court, in State
of Gujarat v. Kansara Manila/ Blzikhala/(1) regarding the scope of
s. IOI of the Act. In that case, the manager of a factory was
charged with the violation of s. 63 of the Act. He raised several
pleas in answer to that charge, but he Qid not have recourse to s.
IOI of the Act.
Ultimately, the manager was convicted,
under
s. 63 of the Act, read with s. 94. Hidayatullah, J., observed, with
reference to s. IOI, as follows at page 662.
"Where an occupier or a manager is charged with an
offence he is entitled to make a complaint in his own tum
against any person who was the actual offender and
on proof of the commission of the offence by such person
the occupier or the manager is absolved from liability. This
shows that compliance with the peremptory provisions of
the Act is essential and unless the occupier or manager
brings the real offender to book, he must bear the responsibility ...... 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 cxi5ts ins. 101
analysed above and the occupier and manager can save
themselves 1f they prove that they are not the real offenders but who, in fact, is. No such defence was offered here."
From the observations quoted above, it is clear that there is a duty
cast, under the Act, upon the occupier or manager, to comply with
the peremptory provisions of the Act: but, under s. IOI, when the
manager or occupier is charged with an offence, he is entitled to
make a complaint, in his own tum, to establish facts mentfonc<f in
the said section; and, if he is able to establish that it was such other
person, who has committed an offence, and satisfies the other requirements of the said section, the manager or occupier is absolved
from all liability. It is also emphasized that an adequate safeguard
has been provided, under s. IOI, under wliich, in circwilstances
mentioned therein, the occupier or manager can save himself, if
he proves that he is not the real offender, but some other person,
charged by him, is.
(I\ (!96417 S. C.R. 65'.
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MANEKLAL v. GUJARAT (Vaidlalingam, I.)
517
Applying the principles referred to above, the approach made
by the trial Court, and by the High Court, in this case, in our
opinion, is erroneous. We have already indicated that the employment of the workmen concerned, referred to in the complaint filed
by ihe Factory Inspector, in the factory, and at the material time, is
established; and that clearly shows that the commission of the
offence, with which the appellant has been charged, has been proved.
Without anything else, the appellant will have to be found guilty.
But the only question is, whether 1:te has been able to save himself,
by.establishing that he is not the real offender, and that respondents
2 and 3 have committed the offence. Even here, we have already
indicated, with reference to the pleas raised by respondents 2 and 3,
before the Magistrate, in answer to the cross-complaint against
them and the written statements filed by them, that ihey have plead.ed guilty to the charge, Therefore, in our opinion, the appellant
can also be considered to have established that the offence was
committed by respondents 2 and 3. But, it is further necessary
for the appellant to establish the two essential facts mentioned in s.
IOI of the Act, viz., (i) that he has used due diligence to enforce the
execution of the Act and (ii) that ~espondents 2 and 3 committed the
offence in question without his consent, knowledge or connivance.
With regard to the first, the question is as to whether the appellant has establishea that he has used due diligence to enforce the
execution of the Act. The appellant has stated, in his evidence, that
each department in tbe Mill has got a head appointed by the Manage1nent and each department has sections and there are heads
for those sections also, and tliat they have been required to comply
with the provisions of the Act. He has also stated that, on the
material date, the 2nd respondent was a salesman, in-charge of the
Stamping Department, which was part of t,he Cloth Department
and that he had been directed to guard against double employment
in the Mill. He has spoken to the fact that the third respondent
was the Supervisor and was in exclusive charge of the Stamping
Department at the material time. This evidence of the appellant
has not been, in any manner controverted by the prosecution. There
is no suggestion by the prosecution that the division of the various
departments, is, in any manner, fictitious or a make-believe affair
and that those heads of departments did not have effective control
or check over the departments in their charge. On the other han~,
the Factory Inspector has admitted, as P.W. I, that there are
several departments in this Mill and that heads are appointed to be
in charge of each department. He has also admitted that. the Salesman is the head of the Cloth Department, including the Stamping
Department. Both respondents 2 and 3, have, in their statements
stated that the 2nd respondent was in-charge of the department,
at the material time. It is also in evidence, which·is not controverted, that the appellant has issued various circulars from time to
518
SUPREME COURT REPORTS
[1967] 2 S.C.R.
time, evidenced by Exhibits 9 to 12. to the various heads of departments, insisting upon the strict compliance with the provisions of
the Act; aiid, in particular, he has also warned the departmental heads
against double employment. Though the Factory Inspector pretended ignorance about the appellant having issued these circulars,
ultimately, he has accepted, in his evidence, that these notices have
been issued by the appellant. We do not find that either the trial
Court, or the High Court, has disbelieved this evidence of the appellant, nor have they held that these circulars are only a make-believe
affair. Under these circumstances, in our opinion, the proper
conclusion to be drawn is that the appellant has used due diligence
to enforce the execution of the Act, in which case, clause (a) of s.
10 I is satisfied.
We shall then consider the question as to whether the appellant
has established that respondents 2 and 3 are the persons who committed the offence, in question, without his knowledge, consent or
connivance. So far as that is concerned, we have already referred to
the nature of the evidence given by the Factory Inspector, as well as
the appellant; and we have also referred to the matters contained
in the written statements filed by respondents 2 and 3. The Factory
Inspector has accepted that the appellant was not in the Mill at the
time of his inspection and that respondent 3 was there at that time.
The appellant ha~ given evidence to the effect that he did not allow
any worker to work in the third shift, on the material date, and that
he did not receive any information from respondents 2 and 3 about
the proposal to have a third shift on that date. He has stated
that he came to know about the occurrence only on May 27, 1961,
and that, immediately thereafter, he took action against •::spondents 2 and 3. These answers have not been challenged in
cross-examinat;on of the appellant. More than· that, respondents
2 and 3, who are specifically charged by the appellant, in his crosscomplaint, of having committed the offence, did not cross-examine
the appellant at all. On the other hand, they categorically admitted, in their pleas in answer to the charge before the Court, rs well
as in the written statements filed by them, that they are guilty of the
offence. Both of them have categorically admitted their guilt and
they have stated that the appellant was not informed by either of
them about the proposed working of the third shift on the morning
of May 26, 1961. They have also stated that the working of the
third shift was without the knowledge, consent or connivance of the
appellant. Both of them have stated that the appellant had ~pec:
fically warned them against double employment. These statements,
made by respondents 2 and 3, aad the evidence given by the appellant
which, as we have already referred to, have not been challenged by
the prosecution and they, in our opinion, clearly establish that
the offence was committed by respondents 2 and 3 without the
knowledge and consent of the appellant. There is also no evidence
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MANBKLAL v. GUJARAT (Vaidlalingam, I.)
519
from which it is possible to come to the conclusion that the offence
has been committed by respondents 2 and 3, with the connivance of
the appellant, in the sense of passive cooperation, by the appellant,
as by consent or pretended ignorance in the wrong doing. Therefore,
we are satisfied that the appellant has proved that respondents 2
and 3 committed the offence, in question, without his knowledge or
consent and that they did so without his connivance either, in which
case, cl. (b) of s.101, is also satisfied.
From what is stated above it follows that the conviction of the
app~llant for an offence, under s. 92 of the Act, for breach of s. 63,
cannot stand. We have already stated that the Magistrate discharged respondents 2 and 3; and that the High Court issued notices to
them to show cause as to why the said order of discharge should
not be set aside. These were numbered as Criminal Revision
Applications Nos. 176 to 179 of 1963. In view of the fact that
the appellant's conviction was being confirmed, the High Court
discharged the rule, issued by it, to respondents 2 and 3.
But, in
the view that we now take, these resp.ondents have to be convicted,
in accordance with the provisions of s. 101 of the Act. The appellant
has also filed appeals in this Court, impleading these two respondents
as parties, challenging the order of discharge passed in their favour.
On the basis of our above findings, the appellant has to be discharged
from any liability under the Act, in respect of the offence charged;
and respondents 2 and 3 must be held to have committed the offence
in quest\on, by violating the provisions of s. 63 of the Act. In
cons~uence, respondents 2 and 3 are found guilty of violating the
provisions of s. 63 and are, accordingly, convicted under s. 92
of the Act; and each of them is sentenced to pay a fine of
Rs. 100/-, in default to underao simple imprisonment for one
week.
In the result, all the appeals are allowed and the conviction anJ
sentence of the appellant are set aside and he is discharged from any
liability under the Act, in respect of the offence with which he was
charged. The order of discharge of respondents 2 and 3 is set aside
and they are convicted and sentenced, as stated above. The fine
if paid shall be refunded.
Y.P.
Appeals allowed.