These are Criminal Revision Cases which have been filed against the convictions and sentences of the Additional First Class Magistrate, Tiruchirapalli, in S.T. Nos. 1138 and 1141 of 1951 respectively.

The facts are:-The petitioners before us who were respectively accused in the lower Court were running cigar factories in Tiruchirapalli Town. There is no dispute that each of these businesses is employing only less than 20 workers and that the manufacturing process is being carried on without the aid of Electric power. P.W. 1, the Assistant Inspector of Labour, First Circle, Tiruchirapalli, visited these places and noted certain contravention of the provisions of the Factories Act which need not detain us here. These petitioners Arumugham Pillai and Sundaram Pillai were prosecuted for infraction of the provisions of the Factories Act. Each of them was fined Rs. 10 or in default to simple imprisonment for ten days. The point taken is that these business premises are not factories within the meaning of the Indian Factories Act and that the lower Court should have held that the G.O. No. 2210 (Development Department), dated 22nd April, 1948 is illegal and ultra vires.

Section 2(n) of the Indian Factories Act LXIII of 1948 defines a factory ass any premises including the precincts thereof wherein 20 or more workers are working or were working on any day of the preceding 12 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. But notwithstanding this definition power is given under section 85(i) to the State Governments by notification in the Official Gazette to declare that all or any of the provisions of the Act shall apply to any place wherein manufacturing process is carried on notwithstanding that the number of persons employed is less than 20, if working without the aid of power. In pursuance of this, G.O. No. 2210 (Development Department), dated 22nd April, 1948 has been issued in the following terms:

"In exercise of the powers conferred by section 85(i) of the Factories Act, 1948, (Central Act LXIII of 1948) His Excellency the Governor of Madras declares that all the provisions of the said Act shall apply to any place wherein a manufacturing process is carried on without the aid of power or is so ordinarily carried on and ten or more but less than 20 persons are employed."

There can be no doubt that this Government Order is illegal and ultra vires and beyond the powers confered under section 85 of the Indian Factories Act. The State Government would have been within its powers if they notified particular named places as factories. But instead of doing so this Government Order makes every place from Ganjam to Rameswaram generally as a factory provided there are more than 10 and less than 20 people employed and engaged in the manufacturing process without the aid of power. This practically renders nugatory the definition of a factory in section 2(m) of the Act. The object of section 2(m) in restricting the term ‘Factory’ to places which employ 20 or more persons engaging in a manufacturing process without the aid of power, is that small undertakings, most often practically family businesses, should not be subjected to the rigorous restrictions imposed by the Factories Act and that in fact such business would not be requiring the rigorous restrictions under the Factories Act. The Central Legislature has at the same time contemplated that in particular places and in certain types of businesses run with less than 20 but more than ten persons without the aid of power conditions may exist calling for the application of the salutary provisions of the Factories Act in ensuring the welfare of the workers. The Central Legislature has also certainly contemplated that the provisions of the Factories Act might get defeated by scrupulously keeping the number of workers down to 19. That is why power has been given to the State Governments to prevent the abuse