Staff working as clerk in the factory if can be held as worker of the factory.

The State has filed this appeal challenging the acquittal of the respondent by the Chief Judicial Magistrate, South Arcot at Cuddalore in S.T.R.No.421 of 1986, tried for offences under Rule 128(3), Rule 44 and Rule 62A of the Tamil Nadu Factories Rules 1950 read with Sec. 19(3) and Sec.43 of the Factories Act, 1948.

2. The gravaman of the charges against the respondent was that, when P.W.1 the Inspector of Factories visited the respondent’s factory "Diamond Engineering Company at D.No.5, Imperial Road, Cuddalore on 27. 1986 at 10.30 a.m. the respondent was found to be carrying on manufacturing process in the factory without producing a certificate of stability in respect of the building in the Form required under the.Rules, was found not to have provided urinal accommodation for the use of the workers and was found not to have provided for the use of the employed, persons, adequate and suitable facilities for keeping clothings not worn during working hours and for drying of wet clothings, Since no reply was received by the respondent for the show cause notice issued to him, the prosecuting was launched.

3. During trial, on behalf of the prosecution the Factories Inspector was examined as P.W.1 and Exs.P-1 to P-4 were marked through him. The respondent when questioned under Sec.2Sl, Crl.P.C. denied the violations- and on his behalf it was contended, that out of the 11 workers found by P. W. 1 to be working in the respondent’s premises during inspection, 3 were clerical staff who would not fall within the definition of ‘workers’ Sec.281 of the Factories Act and as such the above A.ct would not apply to the espondent’s factory. Accepting the legal contention, the learned Magistrate, acquitted the respondent, which has resulted in the present appeal by the State.

4. The learned Public Prosecutor relying on the judgments of the Supreme Court in Central Railway Workshop v. Vishwanatl, 1970 L.L.J. 351 and Rohtas Industries Ltd. v. Ramlakhan Singh and others, (1978)1 L.L.J. 515, submitted that the above 3 workers though they were doing clerical work, were found inside the factory premises and engaged in work incidental to and connected with the manufacturing process and as such, they would also be ‘workers’within the cefinition in Sec.2(1) of the Factories Act and that therefore, the acquitted had to be set aside.

5.Per contra, Thiru Sri Ram, learned counsel for the respondent, by relying upon a judgment of this Court in Dr.P.S.S.Sundar Rao v. Inspector of Factories, Vellore, (1984) 2 L.L.J. 237, urged that the three workers doing clerical work would not fall within the definition of ‘worker’ under the Act and unlike in the cases before the Supreme Court referred to above, therewas no evidence regarding the exact nature of the clerical work done by the 3 workers and as such, the learned Magistrate was not in error in holding that the 3 persons engaged in clerical work would not be workers under the Act and the acquittal had to be maintained. The learned counsel also referred to the fact that the trial court had neither accepted, nor rejected the evidence of P.W.1 and no defnite findings had been given by the trial court on the violations alleged.

6. The question that arises for consideration is whether the prosecution has proved its case against the respondent.

7. The proved facts are as follows: The respondent is the owner of ‘Diamond Engineering Company’ located at D.No.5, Imperial Road, Cuddalore, which is engaged in manufacturing and repairing of fuel injunction pump for motor vehicles. The manufacturing process was being carried on with the aid of power using an electrical motor 11.58 H.P. At the time of the inspection by P.W.I, manufacturing and repairing work was beingactually done and 11 persons were working inside the premises. Of them 3 were engaged in clerical work. Besides them, there were one Store Keeper, one Assistant Store Keeper, one Foreman, one Assistant Foreman, two Mechanics, one Assistant Mechanic