TMI Blog1952 (8) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the said department in Form No. 12 register; and (3) under Section 20 read with Rule 51 for having failed to provide spittoons in the factory as per the type prescribed under Rule 51. 3. The main question that has been argued is whether the studio in which the films are produced is a factory within the meaning of the term in the Factories Act and whether the persons employed there are workers as defined in the Act. The Factories Act (63 of 1948) is the Act in force which is said to have been contravened; but the studio in question was in existence before this Act was passed and had been registered when the earlier Act 25 of 1934 which was replaced by Act 63 of 1948 was in vogue. The appellant contends that except for the three departments, viz., those connected with carpenters, moulders and tinkers, the rest of the portions of the studio cannot be called a factory and that these three departments are housed in a separate building where all the requirements of the Factories Act have already been attended to. The learned Chief Presidency Magistrate did not accept the contentions put forward on behalf of the appellant, but agreeing with the prosecution, convicted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, administrative, technical and directory. (1) The creative department comprises of story and dialogue writers, song composers and music composers and musicians; (2) the administrative department consists of the proprietor, secretaries, chief; executive officer, accountants and programme makers; (3) the technical department consists of cameramen, sound engineers, make-up artists, electricians, editor, laboratorians and still-photographers; (4) the directorial department consists of picture directors and art directors. His evidence is also to the effect that for the production of each picture, there should be actors and actresses called artists, some being, permanent and others part-time and temporary. The gist of the evidence of D.W. 1 is that excepting the labour department consisting of carpenters, tinkers and moulders for which department a labour officer is in charge and for which a licence had already been taken under the Factories Act, the other departments engaged in producing films in the Gemini Studio are under no obligation to observe the Factories Act and the rules thereunder. 7. Though there is no evidence let in as regards the production of the films for exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en as regards the correctness of the details contained in this statement. We shall therefore proceed on the basis that there is no dispute with regard to the nature of the work done or the number of persons employed and other matters. 8. As against this, it is urged on behalf of the appellant that the fundamental and all important business in a film studio is the creation of entertainment for the public who pay for it that movies are essentially entertainment though they may be called media of expression. It is, therefore, urged that in order to bring the work of a cinema studio into the category of a factory it will be essential to bring entertainment as an article or a substance. That movies are generally media of expression cannot be disputed and therefore what is finally distributed to the various picture houses for exhibition is not what existed at the initial stage, but it is the story, the plot or the idea that are worked up and knit into a continuous version that constitutes the entertainment that is catered to the public. A correct decision on this topic depends entirely on the proper interpretation to be put upon the sections of the Factories Act and the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 2 Clause (k) will not be applicable to the facts of the present case; but what he contends is that the business that is being carried on in the Gemini Studio is a manufacturing process within the meaning of the term in the first clause and that the persons employed there directly or indirectly are employed for wages in manufacturing process and such being the case, the premises and precincts would be a factory. The necessary implication of this argument is that all the three elements mentioned above are to be found in this factory. First of all we have to see whether what is being carried on is a manufacturing process. Secondly, if it is a manufacturing process, whether the persons engaged in it are those who receive wages in such manufacturing process. And thirdly whether the premises and precincts where these things are carried on is a factory. Before we proceed to discuss the correct interpretation of these sections, it is useful to set out the provisions of the Indian Factories Act, 1934, as well as those of the English Factories Act of 1937. Section 2, Clause (g), Factories Act, 1934, defines manufacturing process as follows: 'Manufacturing proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which deals with general interpretation does not contain any definition of the term wages or of worker . But it is clear that Clause (xi) of Section 151(1) as extracted above brings a cinema studio within the meaning of the term factory . 10. A comparison of the English statute with the Indian Statute shows that in England the expression factory can be applied only to a premises in which, or within the close curtilage or precincts of which, persons are employed in manual labour in any process for, or incidental to, what have been described later on in that section. A general definition of the word factory is formulated in the earlier part of the section, and 'ex abundanti cautela' various institutions are brought within the definition specifically, whether they can, or cannot be brought within the general terms of the definition. In other words according to the English statute if an establishment satisfies the general words of the definition and if manual labour is employed in such an establishment it becomes a factory. But even if such an establishment cannot be brought within the wide terms of that definition, still as specifically bringing it within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a conversion of a raw material, viz., the paper, into a finished product, viz., the book, where the ideas are formulated and exhibited. In short the argument is that it is misleading and incorrect to bring in the idea that a raw film upon which songs and photos are recorded and absorbed constitutes a raw material which is converted into a manufactured article. 13. The difficulty in accepting this argument is on account of the very wide words used in the statute in defining manufacturing process . None can dispute that the raw film is an article or a substance and when by the process of treating or adapting, after the sounds are absorbed and the photos imprinted, it is rendered fit to be screened in a cinema theatre, then such a change would come within the meaning of the term treating or adapting any article or substance with a view to its use . When a negative is cut to match the positive, and is kept in reserve it is certainly adapting for use. In Section 2(g), Factories Act, 1934, the word adapting does not find a place. But the definition, contained some of the. words used in the present definition. The words such as oiling, washing, cleaning, breaking up, dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the idea underlying the Factories Act in England is the regulation of the employment of manual labour. There is no such restriction so far as one can see in the Factories Act prevalent in this country. The salient fact that with the English statute before them the framers of the Indian Act did not restrict the operation of the Act to manual labour, cannot be lost sight of. Conditions in England with regard to the control of intellectual labour are not the same as in our country. In India the intelligentsia require protection from the exploitation of capitalists probably in a greater measure than in England. Educated unemployed cannot be said to be a feature of English life today. But one need not devote much attention or research to sec that in our country with the advancement of higher university education the problem of finding employment to those who have qualified themselves is becoming an acute one. In such circumstances, it is not surprising that the sponsors of the legislation in India thought it necessary to include intellectual as well as aesthetic and artistic portions of labour within the purview of the Factories Act. 16. Though every alteration of an article do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess, he can he called a worker. So we proceed on the basis that for the purposes of the present case the phrase or not should not cause any difficulty. We have already rejected the contention that the Act is restricted to the employment of manual labour. Therefore even if intellectual or artistic labour is employed, if what is received as remuneration for such labour by the individual concerned can be termed wages in the manufacturing process, then the person so employed is a worker. For this purpose we have to appreciate in the present setting the meaning of the term wages . That in statutory enactments, the two terms salary and wages are often employed to describe the same idea or at least different facets of one and the same idea is pressed on us as a consideration for giving a very extended and wide import to the term wages . What are the legal contents of this word and how it is used in the section have to be correctly determined. In Clauses (h) and (i) of the proviso to Section 60, Sub-section (1), Civil P. C., we have the provision that the wages of labourers and domestic servants, whether payable in money or in kind, and salary to the extent of the first hundred rup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is to be determined solely upon the basis of time spent in service. It may be determined by the work done. But the English statutes make a distinction between 'wages' and 'salary'. 18. In -- 'Gordon v. Jennings', (1882) 51 LJ QB 417, Grove J. attempted to define and make a distinction between the words 'wages' and 'salary'. The learned Judge was of opinion that regard must be had to the object and intention of the Act, and to the connotation of the words used. In the context of the particular statute he was considering, the use of the word, 'wages' is an indication of the object of the Act, for according to the learned Judge though it might be said to include payment for any services, in general the word salary is used for payment of services of a higher class, and wages is confined to the earnings of labourers and artisans. We find a report of the same case in -- 'Gordon v. Jennings', (1882) 9 QBD 45, where the judgment as reported differs in material particulars from that reported in --'Gordon v. Jennings', (1882) 51 L J Q B 417. of the former report, Grove J. makes the following observation: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the other Lord Justices which deal with the meaning of the term 'workman' and the definition to be put upon 'wages'. At page 459 Colling M. R. observes as follows: In my opinion it should be so drawn as to embrace the classes whose remuneration can properly be described as wages. The popular meaning must be given to a definition where we are confronted with such an expression as 'wages', and we must interpret the Act as applying to persons whom 'ex hypothesi' the Legislature regards as not being in a position to protect themselves. None of these considerations apply to the case of a person holding the position of a certified manager of a colliery, who comes within a very different category from that of an ordinary workman. 'Bagnall v. Levinstein Ltd.', (1907) 1 K B 531 which follows -- 'Simpson v. Ebbw Vale Steel Iron Coal Co Ltd.', (1905) 1 K B 453 is instructive in this way; in that even if a person who is employed in a dye and chemical company under a written agreement for five years service and upon terms with regard to salary, commission on profits of inventions or improvements, had to do manua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, the present tendency is not to lay much stress on the preamble unless it is so difficult to determine the scope of the statute by understanding its provisions. We have already expressed our opinion that the Act is not confined to manual labour alone and that its operation is extended to persons whose intellect is utilised and compensation paid for it by the Gemini Studio. It does not therefore seem very helpful to read into the preamble the intention of the framers. 24. It is very strongly pressed before us that the artists employed in Studio, some of whom receive a monthly remuneration of more than ₹ 3000 can under no stretch of imagination be termed as persons who receive wages. They belong to a category of people whose natural talents, aptitude and expression, have been so trained as to bring out in full blossom the results of a combination of training and equipment. Such people cannot be considered as workers who receive wages, is the argument of learned counsel. It is further contended that the directorial department consisting of individuals who regulate the production and whose work is not in any way connected with physical exertion should not be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave with wages for a number of days calculated at the rate of......... so that wages have to be calculated during leave according to the number of days. Section 80 lays down that the worker shall be paid at a rate equal to the daily average of his total full time earnings exclusive of any overtime earnings and bonus, but inclusive of dearness allowance. This section contemplates daily wages . The learned counsel for the appellant contends that it is ludicrous and highly fanciful if not thoroughly harmful to apply these provisions of the Act to the intellectual labour employed in the Gemini Studio, and such being the case it could not have been the intention of the framers of the Act to bring such an institution within the ambit of the Factories Act. It is rather further argued that if the application of the Act is tested in the light of the considerations to be adumbrated below, then it would mean that insurmountable difficulties absurdities would ensue by the acceptance of the construction put forward by the authorities. The following are stated as some of them. 26. According to the argument for the State the managing director of this Studio who controls the working a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should weigh upon the Court in finding out whether the Act can be applied. It may be that a song composer or a story writer or a poet may find an opportunity to express his genius at odd hours of the day when he has to compose or put down in writing the results of sudden impulses and intentions that come upon him. These persons cannot be regulated by the rules under the Factories Act. 29. The learned State Prosecutor contends that these difficulties are not insurmountable because under the rules framed under the Act it is 'possible to exempt such persons. He invites our attention to Rules 81, 82 and 84 framed under the Act. Rule 81 says that the persons mentioned in the schedule thereto are deemed to hold positions of supervision or management and Rule 82 says that the persons mentioned thereunder are deemed to hold confidential positions. The schedule gives the provisions of the Act from which such persons can be exempted. With regard to cinema studios, the nature of the exempted work consists of erection or dismantling of settings or the make up of actors and actresses in cinema studios and the extent of exemption relates to Sections 51, 54, 55, 56 and 61 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by reference to this Act gather the impression that the term wages is intended to apply to persons who receive a fairly good sum of money as monthly salary. It is noteworthy that Section 1 Sub-section (6) prohibits the application of the Act to wages payable in respect of a wage-period, which, over such wage-period, average two hundred rupees a month or more. If the intention of the legislature had been that the term wages can be applied to monthly salaries, in our opinion, there was no necessity for the enactment of this section. By restricting the remuneration for a wage-period, to ₹ 200 and less, the section seems to suggest that the wage period is something which is less than a month. Otherwise it could easily have said that the wages for a period of one month should not exceed ₹ 200. Moreover the Act is intended to apply to persons to whom wages have to be paid in current coin or in currency notes or in both. It is admitted that in the case of most, if not all, of the highly paid employees, the remuneration is paid in the form of cheques drawn on banks. To such persons if Section 6 is made applicable, then their remuneration would not have been properly paid if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned State Prosecutor also referred to Section 2 Clause (h), Factories Act of 1934 where worker is defined and this clause excludes from its scope any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on. In this connection a decision of the Calcutta High Court in -- 'Superintendent, Legal Remembrancer Bengal v. H. E. Watson AIR1934Cal730 was also brought to our notice. At page 733 there are observations to the effect that the expression worker need not necessarily be restricted to manual labour. We have on a construction of the present Act, already come to that conclusion. It seems to us that in finding out whether a person employed directly or through any agency in a manufacturing process, is receiving wages, the question has to be determined with regard to the period for which the amount is settled to be paid. We are definitely of opinion that if the remuneration is to be paid daily or weekly, it can be called wages. But where it is monthly remuneration payable on the last day of the month or after that date and where the remuneration, considering the general standards of payment, is fairly high, then it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on their work is admittedly a factory and the rules and regulations of the Factories Act apply to that departments. Evidence is lacking as to whether the other departments can be so separated. It is permissible to separate the carpentry, moulding and tinkering departments which are really unnecessary for the production of films from the others. There is no evidence to show that the other departments are so intertwined as to be a composite one without being able to be separated. On that aspect of the case there does not seem to have been any evidence let in. In our opinion it is possible, even if some of those departments are factories, to separate those which are not factories from those which are factories. No attention seems to have been paid to this aspect of the case also. 36. In the view which we take that it is not specifically determined as to whether workers, as defined in the Act, of the requisite number have been employed in the various departments, it is difficult to sustain the conviction. We therefore set aside the convictions and sentences and direct a retrial of the case to find out whether the persons employed are workers or not. In respect of those departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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