# JOHN DOUGLAS KEITH BROWN v. STATE OF WEST BENGAL

- **Citation:** [1965] 2 S.C.R. 639
- **Court:** Supreme Court of India
- **Decided:** 1964-12-17
- **Case number:** Criminal Appeal No. 66 of 1962
- **Bench:** Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/john-douglas-keith-brown-v-state-of-west-bengal-3430
- **Pages:** 6

## Headnote

Fuctories Act (63 of 1948), ss. 52 and 92-Scope of-Violation by
manager-If "occupier" liable.
The appellant was an "occupi.:r", as defined in s. 20(n) of the Factories Act, of certain mills.
The manager of the mills contravened the
provi<ions 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
1teps 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 •. 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 word! 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. Thia prohibition is general and is not confined to a manaE
ger. The prohibition is lifted if steps are taken under els. (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 impooe 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(!), both the manager and the "occupier" would
be liable. [641 E-G]
F
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) els. (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.LR. (1954) Nag. 41, referred to.

## Text

A
B
c
D
JOHN DOUGLAS KEITH BROWN
v.
STATE OF WEST BENGAL
December 17, 1964
[RAGHUBAR DAYAL AND J. R. MUDHOLKAR, JJ.]
Fuctories Act (63 of 1948), ss. 52 and 92-Scope of-Violation by
manager-If "occupier" liable.
The appellant was an "occupi.:r", as defined in s. 20(n) of the Factories Act, of certain mills.
The manager of the mills contravened the
provi<ions 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
1teps 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 •. 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 word! 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. Thia prohibition is general and is not confined to a manaE
ger. The prohibition is lifted if steps are taken under els. (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 impooe 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(!), both the manager and the "occupier" would
be liable. [641 E-G]
F
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) els. (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.LR. (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 of
1961.
H
J. N. Ghosh, Nutbehari Mukherjee and Sukumar Ghose, for the
appellant.
K. B. Bagchi, B· N· Kirpal for P. K. Bose, for the respondent.
540
SUPRl!Mlt
COUltT
kBPORTS
[1965] 2 S.C.ll.
The Judgment of the Coun was delivered by
A
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.
B
The appellant is the Managing Director of Jardine Henderson
Ltd., Calcutta, who are the managing agents of the Howrah Milla
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
C
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,
0
Howrah. . His appeal therefrom 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 Coun and that is how the matter baa
come up before us.
E
Reliance was placed before us on behalf of the appellant upon
the decision in State Government of Madhya Pradesh v. Maganbhai Deraibhai (') 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 F
occupier. According to learned counsel the omission of the
appellan! i~ 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 G
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 (I ) of the Act he would
not be liable for the contravention. In the absence of
any
H
evidence to the effect that the appellant knew of the omission and
(I) A,.1.R. 1954 Nag. 41.
'
.JOHN DOUGLAS v. STATB (Mudholkar, I.)
641
.A
yet connived at it his conviction and sentence ought, therefore,
to be quashed.
c
.D
Sub-section (l) 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 dav
on one of the three days immediately before or aft;r
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 els. (a) and (b) of that section. A peruul
of cl. (b) makes it abundantly clear that what is required to be
done thereunder, that is to say, to give and display a notice is
only for the purpose of securing an exemption from the prohib).
lion contained in the opening part of s. 52 of the Act. Clause (b)
11
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
-G
prohibition enacted by sub-s. ( 1) of s. 52 both the Manager 811
well as the occupier will be liable to the penaltie~ prescribed in
that section.
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
-II dated April 8, 1957 to the Manager. 1t runs thus:
"It is, however, pointed out that instead of
employing workers of C Shift from Sunday evenings, it
i42
iUPllBMB
COURT
llEPORTS
[1965] 2 S.C.R.
would be advisable to employ them on Saturday evenings.
The work done by these worker> 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
ioection 52 of the Act would not be necessary."
That being the position, we would have had an occasion to
OOlll>ider 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
A
B
of the appellant and, presumably, was also with his consent. In C
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.
Ref. No. G.12/4968
Howrah, West Bengal,
18th January, 1957.
The Chief Inspector of Factories,
New Secretariat Building, Calcutta.
Dear Sir,
We request your permission to operate the batching to winding departments in No. 1 Mill, as shown on the attached sheet
with effect from Sunday the 27th January, 1957.
))
r.
An early reply would be appreciated.
r
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
H
refused to work according to the schedule proposed by the Mill
(I) A.LR. 190~ Nag. 41.
JOHN DOUGLAS v. STATE (Mudholkar, !.)
643
A Manager.
The Sangh, however, proposed altemative 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,
B 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
even in the original schedule of working hours which is appended
to the btter 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
c 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
D
E
F
G
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
L!'l.
The fact that copies of letters of January 18, 1957 and
February 18, 1957 were sent to Jardine Henderson Ltd., would
H
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
SUPREMB
COURT
REPORTS
(1965) 2 S.C.R.
Ltd. who were themselves the Managing Agents of the Howrah A
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
B
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 geneiral permission can be
granted under els. (a) and ( b) of sub-s. ( 1) of s. 52 for altering C
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
In~pector of Factories in respect of each and every worker who is
required to work on such a day should be obtained.
That being o
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 els. (a) and (b) of sub-s. (1) of s. 52. Of this I:
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.
Appeal dismissed. r