ORDER
Ramaswami, J.
1. This is a criminal revision case filed against the conviction and sentence of the Sessions Judge, East Tanjore in Cri. Ap. No. 11 of 1951 modifying the convictions and sentences of the Additional First class Magistrate, Negapatam in S. T. C. No. 142 of 1950.
2. The accused has been convicted for certain offences under Factories Act, Sections 21 and 68, and fined on the assumption that the Mill which he runs is a factory and which is again on the footing that he employed 11 workers. The case of the appellant is that he employed only 8 workers and that another two included by the Factory Inspector to make up his 11 were watchmen and watchmen are not workers.
3. The learned Sessions Judge held that the two watchmen are factory workers on the foot of the following reasoning.
“According to Section 2(1) ‘worker’ includes a person employed not only in any manufacturing process or cleaning machinery or premises used therefor, but also a person employed in any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process. A watchman is certainly embraced in the wide sweep of the last portion of the definition. This was a rice and oil mill and watching the machinery, paddy and oil seeds and the products thereof is work incidental to or connected with the work of the mill. The duties of a watchman are mainly physical not clerical. I hold that the Mill of the accused is a factory to which the Act applies.”
4. This ‘a priori’ reasoning does not commend itself to me. The term “worker” is defined in Section 2(h) of the Factories Act, and we have got to see whether the alleged watchmen in this case fall within the said definition. A watchman, as the term is generally understood, will be a worker only if he can be brought within the words “employed In any other kind of work whatsoever incidental to or connected with the subject of the manufacturing process” which may take in many categories like packers, movers of the goods, etc. Therefore it is a question of fact in each case, namely, what were the duties discharged actually by these watchmen and what was their connection with the subject of the manufacturing process. There has not been any finding of fact in the case regarding the watchman being worker within the meaning of the definition of “worker”. I have ho materials before me to hold one way or the other.
5. The conviction and sentence are set aside
and the case is directed to be reheard in the trial
Court in the light of the observations made above.