The production of cloth in the Industrial School for demonstration and instruction purposes did not constitute a 'manufacturing process' and therefore the premises did not fall within the definition of a 'factory' under the Factories Act or the notification.

1. This appeal has been referred to a Division Bench by Raman Nayar, J. The facts of the case are not in dispute. The accused, who is the respondent before us, is the proprietor and manager of the Mulloth Industrial School in Trichur District, where handloom weaving of cloth and mat weaving are demonstrated and instructions given in such weaving to pupils. Pw.1, the Factories Inspector, visited the school on June 24th, 1958, when he found 15 persons actually engaged in weaving cloth, apart from 26 students who were present and watching the demonstration. The accused was prosecuted for contravening R.3 of the Kerala Factories Rules, 1957, for running a factory without obtaining permission for the same in writing from the Chief Inspector of Factories. The accused raised several contentions before the lower court and the lower court held that the business conducted by the accused was not a factory as in its view the notification issued by the Kerala Government under S.85 of the Factories Act, making certain provisions of the Act applicable to certain premises not covered by the definition of "factory" under S.2 of the Act was ultra vires the powers of the Government under the said section and therefore void. The lower court also held that the complaint in the case was not in order as Pw.1, when he visited the Industrial School, was not a Factories Inspector, but became one only subsequently. On these findings the lower court acquitted the accused and the State has filed the present appeal.

2. We are concerned in this appeal with two questions, one being whether the notification issued, by the Kerala Government under S.85 dated 8th November, 1957, is intra vires the powers of the Government under the said section and thus valid and the other being whether, even if the notification is valid, the premises in question will be a "factory" corning within the said notification. We are of opinion that it is not necessary to decide the first question in the present case as, in our view, the question involved in this case is much restricted in scope. Even if we are to hold that the notification of the Kerala Government is intra wires and valid, even then we will have to sustain the acquittal in the present case, in the view we are taking on the second question stated above. Therefore, we proceed to dispose of the second question first, assuming without deciding that the notification of the Kerala Government is intra vires and valid.

3. The portion of S.2 (m) of the Act, relevant for the purposes of this case, is sub-section (ii) thereof which reads:

"S. 2 [m] 'factory' means any premises including the precincts thereof

........... ........... ........... ........... ........... ........... ........... ........... ........... ........... ........... ........... ...........

[ii] Whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on".

This is the relevant portion of the definition of "factory" with which we are concerned in this case. We would now extract S.2(1) of the Act which defines "worker".

"S. 2 [1]: 'worker' means a person employed, directly or though any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises need 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."

These two sub-sections necessitate the understanding of the meaning of 'manufacturing process' and this term is defined in S.2 (k) and sub-section (i) of S.2 (k) is the portion of the definition relevant for the purposes of this case. The said definition reads:

"S. 2 (k): 'manufacturing process' means any process for

[i] making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demoli