# STATE OF KERALA & ANR v. R. E. D'SOUZHA

- **Citation:** [1971] 3 S.C.R. 711
- **Court:** Supreme Court of India
- **Decided:** 1971-02-12
- **Case number:** Criminal Ap{leals Nos. 205 and 206 of 1968
- **Bench:** S. M. Sikri, P. Jaganmohan Reddy, J. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-kerala-anr-v-r-e-d-souzha-5235
- **Pages:** 4

## Headnote

February 12, 1971
Factories Act, 1948, s. 2(1)-"Worker"-Who is-Constitution of
India Article 134(1) (c)-Principles already settled by Supreme CourtQuestions concerning application thereof-Whether raise issues fit for
app'"/ to Supreme Court.
After catches of prawns made from time to time were brought to the
respondent's premises, a casual and irregular group of women and· girls
of the locality came at their convenience to do the peeling, washing, etc.
at piece-rates. There were no specified hours of work and after finishing their work, the workers would go on to do similar work at other premises in the locality.
The respondent's conviction under s. 92 of the
Factories Act for, inrer alia, using his premises as a factory without
obtaining registration, etc. was set aside in revision by the High Court on
the view that the workers in question were not '
1workers" within the
meaning of the Factories Act. On appeal to this Court,
'
HELD : The High Court had rightly decided that the workers in the
present case \vere not "workers" covered by s. 2 ( 1) of the Factories Act.
(714 CJ
Dharangadhara Chemical Works Ltd. v. State of Saurashtra, A.I.R.
l'f57 S.C. 264: Chintaman Rao & An'other v. The State of Madhya Pradesh, (1958] S.C.R. 1340; State of Kera/a v. V. M. Patel, [1960] K. L, J.
1524 and Birdhichand Sharma v. First Civil Judge, Nagpur, [1961] 3 S.C.R;
I 61; applied.
Obiter :
After this Court had laid down a test to be applied for determinin~
who were '"workers" within the meaning of the Factories Act, the High
Court should have freated the question of principle as no longer op"n.
The High Court had cortified the case to b& fit for appeal as it felt that
the question involved is of general importance in the State. If the qucs·
tion of principle has been settled by this Court, the application of the
principle to the facts of a particular case does not make the question a
fit one for the Supreme Court within Article 134(1) (e) of the Constitution. (714 DJ
CRIMINAL
APPELLATE
JURISDICTION : Criminal Ap{leals
Nos. 205 and 206 of 1968.
Appeal from the judgment and order dated February 21, 1968
of the Kerala High Court in Criminal Revision Petitions Nos. 415
and 416 of 1967.
D. P. Singh and M. R. K. Pillai, for the appellants (in both
the appeals) .
712
SUPREME COURT REPORTS
(1971] 3 S.C.R.
G: B: Pai, P. N. Tiwari, 0. C. Mathur and Bhaian Ram
Rakh1am, for the respondent (in both the appeals).

## Text

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711
STATE OF KERALA & ANR.
v.
R. E. D'SOUZHA
[S. M. SIKRI, C.J., P. JAGANMOHAN REDDY AND J. D. DUA, JJ.)
February 12, 1971
Factories Act, 1948, s. 2(1)-"Worker"-Who is-Constitution of
India Article 134(1) (c)-Principles already settled by Supreme CourtQuestions concerning application thereof-Whether raise issues fit for
app'"/ to Supreme Court.
After catches of prawns made from time to time were brought to the
respondent's premises, a casual and irregular group of women and· girls
of the locality came at their convenience to do the peeling, washing, etc.
at piece-rates. There were no specified hours of work and after finishing their work, the workers would go on to do similar work at other premises in the locality.
The respondent's conviction under s. 92 of the
Factories Act for, inrer alia, using his premises as a factory without
obtaining registration, etc. was set aside in revision by the High Court on
the view that the workers in question were not '
1workers" within the
meaning of the Factories Act. On appeal to this Court,
'
HELD : The High Court had rightly decided that the workers in the
present case \vere not "workers" covered by s. 2 ( 1) of the Factories Act.
(714 CJ
Dharangadhara Chemical Works Ltd. v. State of Saurashtra, A.I.R.
l'f57 S.C. 264: Chintaman Rao & An'other v. The State of Madhya Pradesh, (1958] S.C.R. 1340; State of Kera/a v. V. M. Patel, [1960] K. L, J.
1524 and Birdhichand Sharma v. First Civil Judge, Nagpur, [1961] 3 S.C.R;
I 61; applied.
Obiter :
After this Court had laid down a test to be applied for determinin~
who were '"workers" within the meaning of the Factories Act, the High
Court should have freated the question of principle as no longer op"n.
The High Court had cortified the case to b& fit for appeal as it felt that
the question involved is of general importance in the State. If the qucs·
tion of principle has been settled by this Court, the application of the
principle to the facts of a particular case does not make the question a
fit one for the Supreme Court within Article 134(1) (e) of the Constitution. (714 DJ
CRIMINAL
APPELLATE
JURISDICTION : Criminal Ap{leals
Nos. 205 and 206 of 1968.
Appeal from the judgment and order dated February 21, 1968
of the Kerala High Court in Criminal Revision Petitions Nos. 415
and 416 of 1967.
D. P. Singh and M. R. K. Pillai, for the appellants (in both
the appeals) .
712
SUPREME COURT REPORTS
(1971] 3 S.C.R.
G: B: Pai, P. N. Tiwari, 0. C. Mathur and Bhaian Ram
Rakh1am, for the respondent (in both the appeals).
The Judgment of the Court was delivered by
S~ C.J. These appeals are on certificates granted by
!he High Court of Kerala. The only question in these appeals
1s whether the workmen doing work in the premises of the respondent are workers within the meaning of Sec. 2 (1) of the
Factories Act,, 1948.
Section 2 ( 1 ) of the Factories Act, 194 8 reads as .follows :
" 'Worker' me11ns a person employed, directly or
through any agency, whether for wages or not, ill any
manu!acturing process, or in cleaning any part of the
machinery or premises used for a manufacturing process,
or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of
the manufacturing process;"
The respondent was convicted under Sec. 92 oI the Factories
Act for using a building as a factory without obtaining the previous permission in writing of the Chief fuspector of Factories.
for failing to apply for registration and grant of licence for the
factory and for failing to maintain a muster roll of the workers
employed in the factory in one case, and for
failing to give
attendance cards to every person employed in the factory in the
other case.
The respondent was
sentenced to pay a fine of
Rs. 20/- in each case. He was also directed under &:. 102 of
the Factories Act to rectify the defects within a specified period.
The respondent filed a Revision Petition in the High Court.
The High Court held that the work that was being carried out' in
the premises of the respondent amounted to manufacturing process. This question has not been debated before us. The High
Court further held that the workmen working in the premises of
the respondent were not 'workers' within the meaning of Sec. 2 (1)
of the Factories Act. It is this part of the decision that has been
challenged in appeal by the State of Kerala.
The natrire of the work done was described in a letter produced by the prosecution. This letter is not printed on the record
but the High Court summaries the document as follows :-
"This document shows that as and when catches of
prawns are made, a consignment of prawns is brought
to the premises in a lorry at any time of the day or the
night, that the women and girls . of the locality, ~ho
form a "casual, heterogeneous, miscellaneous and 1rreA~
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KERALA v. o'SOUZHA (Sikri, C./.)
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gular group", come at their convenience and do the
peeling, washing etc., at piece-rates; and that there are
no specified hours of work, nor is there any control by
the Petitioner over the irregularity and attendance or
of the nature, manner or quantum of their work. The
same workers after finishing the work in the premises of
the petitioner, go to other similar premises in the locality
where other lorry loads of prawns are taken. In other
words, if more prawns are caught at a particular time,.
they are brought and distributed among several premises
are brought and distributed among several premises
like the Petitioner's and the local women and girls
collect at the several premises and do the work at piecerates. The same workers do not go to the same premises on different occasions, and the owners of the
several premises do not have any control over the
manner or quantum of work these women and girls do.
The rates of remuneration naturally depend upon the
quantity of prawns available, the number of women
afld girls that come to do the work, the hour of the day
or the night when the catches arrive, etc. Sometimes,
for days no work is done in the premises."
71;).
The High Court after referring to the decisions of this Court ·
in
Dharangadhara
Chemical
W arks
Ltd. V.
State of
Saurashtra( 1), a decision under the Industrial Disputes Act,
Chintaman Rao & Another V. The State of Madhya Pradesh(')
3illd State of Kerala v. V. M. Patel('), decisions under the
Factories Act, held :
"It will be apparent that the women ll!ld gir1s who
assemble and do the work when a catch of prawns is
brought to the premises of the petitioner are not 'work·
ers' coming within the definition of the Factories Act.
The Petitioner does not insist as to who should do the
job or how it should be done; he only wants the work
to be done for the agreed remuneration without spoiling
the prawns i.e. within a short time.
(A quantity of
prawns is taken for peeling. cteaning, washing etc. by a
particular individual for a fixed remuneration, and that
mdividual, with the assistance of others whom she employs, finishes the job as quickly as possible .. "
The learned Counsel for the appellant contended that it was:
erroneous on the part of the High Court to have applied the·
(I) A.l.R. 1957 S.C. 264
(2) (1958] S.C.R. 1340
(3) (1960] K.L.J. 1524
714
SUPREME COURT REPORTS
[197lj 3 S.C.R.
decision of this Court in Dharangadhara Chemical Works Ltd.
Vs. State of Sau~a_shtra('), a cas~ under the Industrial Disputes
Ac:t, to the defimuon of 'worker' 1n the Factories Act. He fairly
pou~ted out !~at another Division Bench applied the same test in
a dispute ansmg under the Factories Act.
(see Birdhichand
Sharma v. First Civil Judge Nagpur)( 2 ). But, nevertheless, he
urged that we should refer the case to a larger Bench. We see
nothing wrong in the decision of this Court in Chintaman Rao &:
Another v. The State of Madhya Pradesh(").
On the contrary,
we are of the opinion that the case has been rightly decided. The
scheme of the Factories Act clearly, shows that the test adopted
by this Court is the correct one. It would be impossible to apply
many provisions of the Factories Act to the 'workers' of the type
we are conc~rned with here if we were to hold that they were
'workers' within the definition of the Factories Act.
We are
really surprised that the High Court certified this case to be a
fit case far appeal to this Court. After this Court had laid down
a test to be applied for determining who were 'workers' within
the meaning of the Factories Act, the High Col!rt should .have
treated the question of principle as no longer open. The lllgh
Court had certified the case to be fit for appeal as it felt that the
question involved is of general importance in the State. If the
question of principle has been settled by fhis _Court, the application of the principle to the facts of a pariicular case does not
make the question a fit one for the Supreme Court within Articl~
134 (1 )( c) of the Constitution. In the result the appeals fail
and are dismissed.
'R. K. P. S.
Appeals dismissed.
(I) A.LR. 1957 S.C. 264
(2) [1961) 3 S.C.R.161
(3) [1958) S.C.R. 1340.
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