TMI Blog1955 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... Paragraph 6 of the counter-affidavit filed by the respondent showed that the petitioner had to take out a licence under the Factories Act for each of the eight restaurants that it owned. 3. The petitioner applied under Art. 226 of the Constitution for the issue of a writ of mandamus or any other appropriate writ to prevent the respondent, the Inspector of Factories, from enforcing any of the provisions of the Factories Act against the petitioner in relation to any of the eight restaurants owned by it. 4. The petitioner's main contention was that each of its eight establishments was a restaurant to which only the provisions of Madras Act 36 off 1947 applied, and that none of them was a factory as defined by the Factories Act of 1948. The substantial plea, on which that contention was based, was that the provisions of the Factories Act of 1948 were repugnant to those of the Madras Act, and to the extent of that repugnancy the provisions of the Factories Act of 1948, were void under S. 107, Government of India Act, 1935, and therefore unenforceable against the petitioner. 5. The presumption, of course, is in favour of the validity of the impugned Act, the Fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of manufacturing process; 2 (k) manufacturing process'' means any process for (i) making, altering, repairing, ornamenting, finishing, packing, oiling; washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or (ii) pumping oil, water or sewage, or (iii) generating, transforming or transmitting power, or (iv) composing types for printing, printing by letter press, lithography photogravure or other similar process or book binding; or (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; relevant sub-clauses of S. 2, Factories Act 63 of 1948 are as follows : 2 (m) factory means any premises including the precincts thereof: (i) whereon ten 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 with the aid of power, or is ordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is the further test of numbers prescribed by S. 2 (m). If the manufacturing process is carried on with the aid of power, the minimum prescribed is ten persons. i.e., persons employed in the premises who satisfy the definition of workers in S. 2 (1) of the Act. If the manufacturing process: is carried on without the aid of any power, the minimum is 20 workers. 9. The statutory authorities, the Inspector of Factories and the Chief Inspector of Factories do not appear to have kept in view the requirements of the statute, the Factories Act of 1948, in treating everyone of the eight restaurants of the petitioner as a factory. They appear to have counted the total number of the persons employed in each of the establishments, without deciding whether every one of them or every class of them came within the definition of ''worker'' in S. 2 (1). Nor do they appear to have really decided whether the manufacturing process was carried in each of these eight restaurants with or without the aid of power. 10. In the papers placed before me there was the specific decision of the Chief Inspector of Factories with reference to one of the eight restaurants owned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for making or otherwise treating or adapting the article for sale. Similarly, in the case of beverages, mere storage will not form part of the manufacturing process. But if the beverage is treated or adapted for sale by the use of a refrigerator, then that might amount to manufacturing process as defined by S. 2 (k). 11. What the refrigerator, the Frigidaire, in the petitioner's restaurant, the Central Coffee House and Lodging, was used for is not clear either from the order of the Chief Inspector or from the affidavit or counter-affidavit. That was one of the points the Inspector had to decide. The Inspector had to decide as a question of fact, what was the manufacturing process that was carried on in the restaurant with the aid of power? Any use of the power on the premises is not enough. The power must be used in aid of ''manufacturing process as defined by S. 2 (k). 12. If the use of the Frigidaire is really the deciding factor in any given case, whether an establishment is a mere restaurant or is a factory, it is for the Government to decide whether the interests of the public will not be better served by exempting such an establishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot be said to be incidental to the process of manufacturing itself. The object of the manufacturing process is a stage different from that of the manufacturing process itself, and the stage of sale is reached after the manufacturing process has been completed. Nor is service, serving food to customers, connected with the subject of the manufacturing process . What the section requires is that it should be subject of the manufacturing process and not this subject of a manufactured process. A server certainly does not treat or otherwise adopt the article to be sold. He just serves it as it has been made, i.e., as it stands after being subjected to a process of manufacture. An employee who has to do other work besides serving in a restaurant may or may not be a ''worker within the meaning of S. 2 (1), but a person solely engaged in serving customers or in waiting on them not be a worker within the meaning of S. 2 (1) of the Act. 15. It is not my intention to exhaust every category of employees in a restaurant and lay down the tests for finding out if he is a ''worker within the meaning of S. 2 (1). The tests are laid down by the Factories Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be factories within the meaning of the term. Though the distinction was between wages and salary, that ten workers as defined by S. 2 (1) of the Act would be required if any power is used in a manufacturing process carried on in, any part of the premises is clear. It is with reference to these principles also that the statutory authorities will have to decide whether any of the restaurants of the petitioner is a factory as defined by the Factories Act of 1948. 19. The learned counsel for the petitioner contended that no restaurant could be treated as a factory within the meaning of the Factories Act of 1948. He referred to - 'Wood v. London County Council', 1941 2 KB 232 (238) (B). Mackinnon L. J. observed; In my view, a kitchen is not within this definition of a 'factory' because dishes are washed up in it or because articles are altered, finished or cleaned in it, or because articles are ornamented, as for instance, by providing icing sugar on a cake or parsley as a garniture for dishes. A kitchen which is carried on in a large way by peoples running a restaurant by way of trade or for purposes of gain would not, by reason of those words ..... X X X X Extracts X X X X X X X X Extracts X X X X
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