Factory Act, 1948: Chapter I- Preliminary (Section 1- 7B)

Introduction:

This chapter simplifies many terms being used in this Act, special working, dealing severe situations, occupier’s working, occupier’s duties and manufacturer’s,etc duties, to bifurcate from occupier’s duties and so that there remains no confusion of occupier’s and others independent existence.

CHAPTER I – PRELIMINARY

Section 1- Short title, extent and commencement

This Act (Factory Act, 1948), which extends to the whole of India, came in force on 1st day of April, 1948.

Section 2- Interpretation

The interpretation remain the same until the subject or context of this Act remains consistent (similar or suitable),

(a)”Adult” – completed 15 years (15 yrs. – till death)

(b)”Adolescent” – completed 15, not yet 18 (15 yrs.- 18 yrs.)

(bb)”calendar year” – 12 month period, beginning with I day of January.

(c)”child” – not completed 15 yet (0 – 15 yrs.)

(ca) “competent person” –

A person or an institution, validated (acknowledged) by Chief Inspector for undertaking required-

• Tests,
• Examinations and
• Inspections

Such person must be experienced and qualified regarding-

• Facilities available to him or
• Persons working for him or
• Persons employed (working) for working in that institute.

(There could be more than 1 competent person or institution, depending upon the test, examination and inspections.)

(cb) “hazardous process”-

When industries (specified in schedule) undergo process or activity and fail to take special care of-

• Raw material( used initially or afterwards as an intermediate) or
• Finished product or
• Bye product or
• Wastes or effluents.

 Then, it could lead to-

• Material impairment to health of persons enjoyed in or connected therewith, or
• Pollution of the general environment.

(State Government, by notification in official Gazettee may amend I schedule through addition, omission or variation of industries mentioned under that schedule).

(d)”young person” – Either child or an adolescent (a person not yet completed 18 years)

(e)”day” – 24 hr period, beginning at midnight.

(f)”week” – 7 day period, beginning at-

Saturday night midnight or

Any other midnight (approved in writing for particular area by the Chief Inspector).

(g)”power” – electrical energy or any other form of energy, but-

Only mechanically transmitted,

Not generated by human or animal agency.

(h)”prime mover” – engine, motor or other appliance, generating or providing power.

(i)”transmission machinery” – any application or device like shaft, wheel drum, pulley, system of pulleys, coupling, clutch, driving belt,, which transmits motion from prime mover to the machinery or appliance.

(It is an intermediary of prime mover and machinery).

(j)”machinery”– Inculcates prime movers, transmission machinery and appliances all together, where power is-

Generated,

Transformed and

Transmitted or applied.

(Definition of “transmission machinery”, machinery may be a separate thing but according to the Act “machinery” includes prime movers, transmission machinery and other appliances itself).

(k)”manufacturing process” –

Any process for (here, the word ‘for’ is important, when mostly we take “manufacturing process” as process of manufacturing, which could be a very different perspective from process for manufacturing)-

• [making, altering, repairing], [ornamenting, finishing, packing], [oiling, washing, cleaning], [breaking up, demolishing], or treating an article; or substance for their use as, sale, transport, delivery, or disposal or
• (here, I have put brackets on relatable processes, would be easy to grasp)
• Pumping oil, water, sewage or transmitting or
• Power – generation, transforming or transmitting or
• Compositing – printing, printing by letterpress, lithography, photogravure, etc or book binding or
• Ships and vessels – construction, reconstruction, repairing, refitting, finshing or breaking up or
• Cold storage – preserving or storing.

CASES:

Uttarakhand forest Development Corporation and Another V Jabar Singh and Others

Supreme Court held that the process of cutting trees by axe and changing the shape by saw and conversion of trees into logs for the purpose of preserving any article such as milk in cold storage is a manufacturing process.

K.V.V. Sharma , Manager case

Conversation of raw films into a finished production was held to be a manufacturing process.

New Taj Mahal Café Ltd. Mangalore V Inspector factories Mangalore

The preparation of foodstuffs of other eatables in the kitchen of restaurant and use of a refrigerator for treating or adopting any article with a view to it’s sale were also held to be manufacturing process.

(l)” worker” –

A person employed (directly or by or through any agency or contractor, with or without knowledge of the principal employer, whether for remuneration or not) in-

• Any manufacturing process or
• Any kind of work incidental or connected with manufacturing process or subject of manufacturing process or
• Cleaning any part of machinery or premises used for manufacturing process.

Except – any member of the armed forces of the Union.

(m)”factory” –

Premises (including precincts) where-

• 10 or more workers work or were working on any day preceding 12 months and

    Where a manufacturing process is carried out with aid of power in any of factory’s part or

• 20 or more workers work or were working on any day of preceding 12 months and

   Where a manufacturing process is carried out without aid of power in any of factory’s part.

EXCEPT-

• Mine subject under the Mines Act, 1952(35 of 1952) or
• Mobile unit belonging to armed forces of the union or
• Railway running shed or
• Hotel, restaurant or eating place.

Explanation

• Calculation of number of workers in a day = different groups + relays.
• Not a factory- Premises or part of it, set up with on Electronic data Processing Unit or Computer Unit without any manufacturing process being carried out.

CASES-

Employees State Insurance Corporation V Jalandhar Gymkhana Club

Held, that preparation of food and drinks in kitchen attached to club and preservation and storing of articles in cold storage would be manufacturing process under sectiopn2(k) under Factory Act and t6herefore it follows that the premises of the club is a factory under section 2(m).

 V.P. Gopala Rao V Public Prosecutor, Andhra Pradesh

Sun-cured tobacco leaves was subject to processes of moistening, stripping and packing in a company premise with a view to their use and transport to company’s main factory for manufacturing cigarettes. More than 20 persons under supervision of management were working in the premises. It was held that the manufacturing process was carried on in the premises and the persons employeed were “workers’ and premises a “factory’ within the meaning under section 2(m) of Factory Act.

(n)”occupier” –

Who has ultimate control over the affairs of the factory, depending upon-

A firm or other association of individuals – any one of the individual partners or members thereof deemed to be.

A company – any 1 of the director.

Factory owned and controlled by the Central or any State Government or any local authority – the person appointed to manage the affairs of the factory by Central Government or State Government or Local Authority.

Examples:

• The owner of the dock or
• The owner of the ship or
• Owner’s agent or
• Master of ship or
• Officer-in-charge of ship or
• Any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work in relation to:
• The workers employed directly by him, or by or through any agency and
• The machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other Officer-in- charge or person.

Suitable provisions of this Act depending upon the above examples:

• Owner of dock- section 6, 7, 7A, 7B, 11, 12, 17(sufficient lighting), 18, 19, 42, 46, 47, 49.
• Others – section 13, 14, 16, 17, 43, 44, 45, 108, 109, 110, chapter – IV (except section 27),VI, VII, VIII, IX.  

(p) “prescribed” – means prescribed by the State Government under this Act.

(r) “shift” –where work of the same kind is carried out by 2 or more sets of workers working during different periods of the day, each of such sets is called a ‘group’ or ‘relay’ and each of such periods is called a “shift”.

SECTION 3- Reference to time and day

 Time of day refers to Indian Standard Time, five and a half hours ahead of Green Which Mean Time.

Where IST is not considered, State Government make rules, according to-

Area or local mean time ordinarily observed there and observed by all or any factory situated in the area.

SECTION 4- Power to declare different departments to be separate factories 2 or more factories to be single factory

• State Government, in concern of any provision can treat:
• Different departments or branches, separate factories or
• 2 or more factories, a single factory.

State Government, can do the above (but not without hearing occupier’s opinion), by:

• It’s own or
• On a written order (in form of application) by an occupier.

SECTION 5- Power to exempt during public emergency

In crises of public emergency, State Government exempt-

Any factory or class or description of factories (by notification in official gazette) from all or any provision of the Act considering that period (notification could not of more than 3 months at a time) and conditions accordingly.

Explanation:

“Public emergency”- Grave emergency, where security or any part of the territory is threatened through war or external aggression or internal disturbance.

SECTION 6- Approval, Licensing and Registration of Factories:

State Government may make rules-

• To submit plans of any class or description of factories to Chief Inspector or State Government,
• To have a written permission of plan (above) for site situation or construction or extension,
• For considering the purpose of plans and specifications,
• To specify nature of plans and specifications and who should certify it,
• Regarding factory’s licensing and registration and prescribing fees for registration, licensing and renewal of license,
• Clarifying no license or renewal to be granted unit section 7, notice is given.

If aforesaid application has been sent by post and there is no order communication within 3 months, it is implies to have been granted to the applicant.

If State Government or Chief Inspector refuses to grant permission applicant may appeal to Central Government within 30 days of refusal.

Explanation:

An extension or replacement of plant or machinery does not end up affecting the meaning of factory, if it does not reduce minimum clear space or adversely affect environmental condition through things injurious to health like steam, heat or dust or steam or fumes.

SECTION 7- Notice of Occupier

At least 15 days before, occupying or using a premises as a factory, occupier shall send a written notice to the Chief Inspector ,containing:

• Name and situation of factory,
• Name and address of occupier,
• Name and address of owner of premises (including precints), mentioned under section 93,
• Address, where communication to factory is to be sent,
• Nature of manufacturing process, to be carried on in the factory during-
• Last 12 months, where factory was in existence on the date of commencement of the Act and
• Next 12 months, in case of all factories.
• Total rated horse power installed or to be installed (not including rated hours power of any separate stand by plant),
• Name of manager
• Number of workers, likely to be employed,
• Average number of workers per day employed, last 12 months if factory is in existence on date of commencement of this Act,
• Any other such particular prescribed.

Establishment, for the first time coming within the scope of the Act, occupier shall send such notice to the Chief Inspector within 30 days from the date of commencement of this Act.

Factories which were earlier engaged in manufacturing process carried on for less than 180 working days in a year), to resume work occupier need to send such notice before the date of commencement of work.

When a new manger is appointed, occupier has to send such notice within 7 days from date on which such person takes over charge.

For purpose of this Act the time period when no person has been designated as manger or existing manager does not manager, another person or nom person is found acting as manager, the occupier himself shall be deemed to be the manager.

SECTION 7 A- General Duties of Occupier

To ensure health, safety and welfare of all workers, while they are at work.

Matter, not prejudiced as duty :

• Maintenance of plant and systems of work with safety and without risk to health,
• Arrangement for safety and absence of risk, using, handling, storage and transport of articles and substances,
• Relevant information, instruction, training and supervision for securing health and safety,
• Maintenance of all work places, through means of access to and securing health and safety,
• Maintenance of all work places, through means of access to and egress(go out of)  from places safe and risk free,
• Maintenance and monitoring of working environment.

Cases, except from prescribed above, occupier shall prepare often-

Revise, a written statement, in respect with safety and without risk, organization and arrangements for time being in force for carrying out that policy and to bring statement and revision to the notice of all workers, in prescribed manner.

SECTION 7 B- General Duties of Manufacturers, etc as regards Articles and substances any Article for use in Factories

Every person who designs, manufactures, imports or supplies any article for use in any factory shall-

• Ensure safety and non risk, regarding article designed and constructed,
• Carry out tests and examinations, considered necessary
• Take necessary steps, to ensure the availability information regarding:
  • Use of article in factory,
  • Use of the article for what it is been designed and tested and
  • Any necessary condition, to ensure safety and no risk when the article is used such way.

(When an article designed and manufactured outside India, importer is obliged to see-

• Article’s conformity, if the article has to be manufactured in India or
• Article’s conformity, if the advanced standards adopted by the foreign country are above the Indian standards).
• Every person, designing or manufacturing any article for use, must carry out or arrange  for carrying out  reasonably practical research or discovery, for  elimination or minimization of risk against health and safety of worker  which is under risk due to the design and article’s itself use.
• Above sub sections- (1), (2) of section 7 B never expressed, need to have   separate person, who may repeat the testing, examination or research, which is to be impliedly carried out by him only, by being reasonable and relying upon the results required for the asked purposes in those sections.
• Duties assigned to any person under sub-section (1), (2) of section 7 B, extend only to –
  • Things done in course of business carried out by him or
  • Matters within his control.
• Where a person designs, manufactures, imports or supplies articles, based upon a written undertaking by the user, to take specified step being mentioned in that undertaking, to ensure-
  • Safe and no risk working of the property when put to use, to the workers and
  • Relieving that person from his duties (reasonably considering the terms of undertaking), being imposed upon him under clause (a) of subsection (1) of section 7 B, if ensured safe is not provided with.
• In regard to this section’s purpose, no article is used properly until being informed or advised about it’s use, by the person, designing, manufacturing, importing or supplied.