The occupier of a factory is liable to penalty under S. 92 of the Factories Act, 1948 for the contravention of the provisions of S. 52 of the Act, even if the occupier did not have mens rea.

Judgment

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 (hereinafter referred to as the Act) for the contravention of the provisions of S. 52 of the Act.

2. The appellant is the Managing Director of Jardine Henderson Ltd., Calcutta, who are the managing agents of the Howrah Mills Co., Ltd., of Ramkristopur, District Howrah and as such "occupiers" of the Mills within the definition of the term contained in S. 2 (n) of the Act. One J. P. Bell was the Manager of the Mills in June, 1957. Both the appellant and Bell were charged with an offence under S. 92 of the Act read with S. 52. It would appear, however, that during the pendency of the trial the Manager was permitted to proceed to England and the prosecution contained against the appellant alone. He was convicted of the offence and sentenced to pay a fine of Rs. 400 by the Sub-Divisional Magistrate, Howrah. His appeal 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 Court and that is how the matter has come up before us.

3. Reliance was placed before us on behalf of the appellant upon the decision in State Govt. of Madhya Pradesh v. Maganbhai Dasaibhai, AIR 1954 Nag 41, to which I was a party in support of the contention that where a duty is cast upon a Manager of a factory to perform a particular act his omission to do so will not render the occupier vicariously liable under S. 92. The contention of the appellant is that under cl.(b) of sub-s. (1) of S. 52 of the Act a duty is cast upon the manager of the factory to give a notice to the appropriate authority of change in the weekly holiday from the first day of the week to any other day and not upon the occupier. According to learned counsel the omission of the manager to give such notice would not render the occupier liable in any way unless it is shown that there was any connivance on his part of a breach of duty by the manager. This, it is contended, must necessarily imply that unless the occupier had the mens rea to contravene the provisions of S. 52(1) of the Act he would not be liable for the contravention. In the absence of any evidence to the effect that the appellant knew of the omission and yet connived at it his conviction and sentence ought, therefore, to be quashed. 1342

4. Sub-section (1) of S. 52 reads thus:

"No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day), unless-

(a) he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, and

(b) the manager of the factory has before the said day or the substituted day under cl. (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 substitute shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day".

The opening words of this sub-section indicate a prohibition from requiring or permitting an adult worker to work in a factory on the first day of the week. The prohibition is, however, lifted if steps are taken under cls. (a) and (b) of that section. A perusal of cl. (b) makes it abundantly clear that what is required to be done thereunder, that is to say, to give and display a notice is only for the purpose of securing an exemption from the prohibition contained in the opening parts of S. 52 of the Act. Clause (b) cannot, therefore, be linked to some other provisions of the Act which impose a positive duty upon the manager