1982 PLP 845 (PLC(CS))

(a)that as the dispensary in which respondent Dr. Miss Akhtar Jamal was employed was separate from and outside the precincts of the Cement factory of the applicant‑Company neither the provisions of the Factories Act nor those of the Payment of' Wages Act would be applicable to her ; and (b) that in any case, the respondent was not employed in any manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process and, therefore, she was not a "worker" for the purposes of the Factories Act, which Act accordingly would not be applicable to her. 3., It may be pointed out that the "13ayment of Wages Act is applicable only to the payment of wages to persons employed (a) in any factory, (b) upon any Railway, and (c) in any industrial establishment to which the provisions of the Act have been extended by the Provincial Government by notification in the official Gazette. The contention of the respondent is that the dispensary in which she was employed was within the precincts of the cement factory of the applicant‑Company and hence the provisions of the Factories Act, 1934, would apply to her. In order to appreciate the contending arguments of the learned counsel in regard to this plea, it would be appropriate to set down the definition of `factory' as contained in the Factories Act. The said definition reads as follows:‑‑ "(j) "Factory" means any premises, including the precincts thereof, whereon ten or more whereon are worker, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process: is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of the Mines Act, 1923 (IV of 1923)."

4. The word "precincts" has not been defined either in the Factories Act or in any statue, which is in pari materia with the said Act. We have, therefore, to construe the wore; in its ordinary dictionary meaning. It has been defined in the Webster's Third New International Dictionary, Vol. 11, as;‑ "The region immediately surrounding a place‑Environs". The connotation of this word came up for consideration before the Court of Appeal in England in the case of Mechanical Grounting Co. Ltd. ((1959)2 All E R 588) Pearce, L. J. who delivered the judgment on behalf of the Court of Appeal, while examining the question whether the apron to the hanger of the company was within the precincts,) f the hanger which was admittedly used as a factory observed as follows:‑ "Neither side relied on any dictionary for the meaning of the words "close", "curtilage" or "precincts", or on any case defining those words with precision. It was conceded that the words "close", and "precincts" import the notion of a boundary surrounding an inclosure, but that the boundary might be a line or notional surround. The first meaning of "precinct" given in the Shorter Oxford English Dictionary is:‑ 'The space enclosed by the walls or other boundaries of a particular place or building, or by an imaginary line drawn around it; esp, the ground immediately surrounding a religious house or place of worship.' The word can also be used to mean "the environs". With all respect to the learned Judge's contrary opinion; we think that this apron was within the close, curtilage or precincts of the hanger, and that the position of the fence at the time when the licence was given (whether thereafter it was in situ or temporarily removed) must be regarded as the limit or the close, curtilage or precinct."

5. Mr. Abdul Hafeez, however, relied upon the following passage appearing at page 195 of Vol. 20 of Halsbury's Laws of England, Fourth Edition:‑ "Where a place situate within the close, curtilage or precincts form ing a factory is solely used for some purpose other than the pro cesses carried on in the factory, that place is not to be deemed to form part of the factory for the purposes of the Factories Act 1961, but, if otherwise it would be a factory, it is to be deemed to be a separate factory." It may, however, be pointed out that there is a great difference bet ween the definition of factory as given under the British Law and as given either under our Factories Act or the Indian Factories Act, 1948, as has been pointed out by a Division Bench of the Madras High Court in re K. V. V. Sarma, Manager, Gemni Studios, Madras (A I R 1953 Mad. 269).

6. We have, therefore, to see whether the evidence on record justifies the inference that the dispensary where the respondent Lady Doctor was employed was within the precincts of the factory of the applicant company. In her evidence before the Authority under the payment of Wages Act the respondent admitted that the dispensary was located in the residential area and further that the residential area and the factory were divided by a road. She, however, denied the fact that this dividing road was a public road. She admitted in her evidence that the residential area was outside the factory premises. In order to further clear up the point whether the dispensary where the respondent was employed was within or outside the precinct of the factory, the respondent was also examined before this Tribunal. Before this Tribunal, the respondent admitted that there was compound wall all around the dispensary and that further the dispensary had a separate gate from the gate of the factory. All these circumstances clearly indicate that the dispensary was clearly outside the "precincts" of the factory of the applicant company, since it was not only separated from the factory by a road, bat also by the compound wall of the dispensary Moreover, the dispensary was in the residential area of the factory, as admitted by the respondent herself and the residential area was separate from the factory premises.

7. Since the respondent was not employed either in the factory or in the precincts thereof, neither the Factories Act. 1934, nor the Payment of Wages Act, 1936, would be applicable to her case.

8. There is another ground on which the claim of the respondent under the Payment of Wages Act must fail. One of the essential require ments for any premises to fall under the definition of "factory" as given in the Factories Act is that ten or more workers must be working therein. "Worker" has been defined in the Factories Act as follows:‑ "(h) 'Worker' means a person employed directly or through (an agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on." A bare perusal of the above definition makes it clear that unless a person is employed in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process or in any other work incidental to or connected with the subject of the manufacturing process, he is not deemed to be a worker for the purposes of the Factories Act. In the case of Mir Laik Ali and others v. Mehboo6 Khan (1), the question that arose for consideration by a Division Bench of the defunct High Court of West Pakistan was whether a person work ing as a Clerk in the Cleaning and Forwarding Branch of the Hyderabad Relief and Rehabilitation Trust, Karachi, was covered by the Payment of Wages Act, 1936. Rejecting the contention on behalf of the Trust that his case was covered by the Payment of Wages Act, Waheeduddin, J., delivering judgment on behalf of the Division Bench observed as follows:‑ . . . . . there is overwhelming evidence on the record to show that the respondent at the relevant time was not employed in any factory of the appellants' trust. He was working at their office on Lawrence Road and was incharge of the Clearing and For warding Branch of the said Trust. The evidence of P. W. 2, Capt. Riazul Haq and D. W. 1, Mujibuddin, is very cleat on this point. Both of them stated that the respondent had nothing to do with the process of manufacture in the four factories belonging to the Trust. On the other hand, they stated that he was merely a clear ing and forwarding officer‑incharge of material on behalf of the said Trust. It is, therefore, obvious that the respondent was not employed in any factory or in any industrial establishment and therefore his case is not at all covered by the Payment of Wages Act of 1936. In our opinion the view of both the learned subor dinate Courts or, the question raised before us is absolutely correct and no exception can be taken to it."

9. In the subsequent case of the Employees' Union v. Pakistan Security Printing Corporation Ltd. (2), the question which fell to be con sidered by a Division Bench of the Karachi High Court was whether Malis employed in the Pakistan Security Printing Corporation on a planta tion within its factory's premises were workers for the purposes of the Factories Act. Rejecting the contention that Malis are deemed to be workers for the purposes of the Factories Act, the Division Bench observ ed as follows:‑ "Apparently the worker under the Act means a person employed, whether for wages or not in any manufacturing process, or in cleaning any part of the machinery of premises used for manu facturing process, or any other kind of work whatever incidential to or connected with the manufacturing process or connected with the subject of the manufacturing process, but it would not include any person solely employed in any place where no manufacturing process is carried on or his work is not directly or indirectly connected with the process employed in the factory itself. It has not been contended that the malis are in any way connected with any of the jobs provided in the factory. Consequently, it was rightly held that the malis were borne on distinct establishment unrelated with the factory. Thus there can be no escape from the conclusion that the malis do not fall within the definition of ‑worker" and therefore, neither the Factories Act nor the Commercial Industrial Disputes Ordinance is applicable to them."

10. As admittedly the respondent was not employed in any manufacturing process or in any other kind of work incidental to or connected with the subject of the manufacturing process, nor was any such~ process carried on in the Dispensary, she cannot be deemed to be a worker for the purposes of the Factories Act, 1934, and consequently, neither the said Act nor the Payment of Wages Act would be applicable to her employment or claim for wages. 11, For the reasons discussed by me above, I am of the view that the appellate order the Sind Labour Court, Karachi dated 14th March, 1978, is without lawful authority arid is thus legally not sustainable. I' would accordingly set aside the same and would confirm the order of the learned Authority under the Payment of Wages Act.