Workers under the Factories Act are defined by the existence of a contract of service, where control and supervision by the employer are evident.

1. In these three criminal revision cases and the writ petition, a common question, arises for decision. The facts alleged in the affidavit filed in support of the writ petition are not admitted by the respondents. But in the criminal revision cases, evidence was taken and the facts are investigated and found by the trial Magistrate and by the Sessions Court, Srikakulam in revision. It is stated by the learned Counsel appearing in the cases that the decision of the writ petition will be governed by the decision in the criminal revision cases. Therefore, I shall first deal with the criminal revision cases.

2. It is also stated by the learned Counsel appearing for the petitioners that the facts in alt the three revision cases are similar. So I shall first consider the Criminal Revision Case No. 234/61 which arises out of S. C. No. 1 of 1959 on the file of the Additional District Munsif Magistrate, Sompeta. The accused, Sreeram Rattayya of Palasa is the occupier of Sri Jayasankara Cashew Manufacturing Co., Palasa. The complaint against him is under S.92 of the Factories Act (63 of 1948) for having failed to construct the cashew - nut breaking shed in accordance with the approved plans and for having failed to frame and display notice of periods of work for adult workers in Form No. 11 and to send copies of the same to the Inspector of Factories and for failure to provide sufficient latrine accommodation separately for men and women workers. The accused admitted these contravensions; but he contended that he was not liable under the Act as his was not a factory. The petitioner purchases cashew - nuts in the local markets and gets them roasted by skilled roasters in their sheds. The roasted cashew - nuts would be broken and the cashew - nut kernel would be extracted in an unbroken condition.
Each person that would be engaged for breaking the cashew - nuts and extracting the kernel would be paid remuneration at 3 annas per Kuncham. But no remuneration is paid for the quantity of the broken kernel. In this case, when P.W. 1, the Inspector of Factories inspected the premises, he found 23 women and 2 men working therein. The shed in which the cashew - nuts are broken and the kernel extracted was only 4 feet in minimum height and was straw - roofed, whereas according to the plan approved by the. Chief Inspector of Factories, the shed should be of a minimum height of 14 feet with G. I. sheet roofing.
Latrine accommodation was not provided and notice of periods of work in Form No. 11 was not displayed and the copy of the same was not sent to the Inspector of Factories. The main plea is that those working in this shed are not workers within the meaning of Factories Act and that, therefore, their sheds would not be factories within the meaning of that Act. It is claimed that the cashew breakers are not in any way bound to come for work regularly or at any particular time. There is not any contract of service with them. They can come for work at any time they like and they can leave whenever they like. There is no manner of control or supervision over their work except to see that they do not pilfer the goods, and this supervision is done by women, who are employed to see that the sheds are kept clean. The cashew breakers would receive the remuneration every day when they leave the shed, though some of them may receive their remuneration once a week or in ten days.
The trial Magistrate, on a consideration of the evidence in the case found that this is a clear case of contract of service and not a contract of work and that the company itself is a factory within the meaning of the Act. Therefo