Skip to content


Homi J. Bhajiwala Vs. the State - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 412 of 1960
Judge
Reported in(1960)62BOMLR1021; (1961)ILLJ170Bom
ActsFactories Act, 1948 - Sections 2 and 85
AppellantHomi J. Bhajiwala
RespondentThe State
Excerpt:
.....therefore, a shop within the main part of the definition contained in section 2(27) of the bombay shops and establishments act, 1948, irrespective of the fact whether the customers themselves bring the articles to the premises or have them sent there with their agents or servants.;where a works place is mainly used in connection with the business of rendering services to customers which is conducted on the premises, it falls within the inclusive part of the definition of the word 'shop' in section 2(27) of the act.;kalidas dhanjibhai v. the state of bombay [1955] 1 s.c.r. 887 : s.c. 57 bom. l.r. 702, distinguished. - - 3. the trial court held that the establishment of the petitioner was a shop within the meaning of the shops and establishments act and the failure to maintain the 'm'..........2(27) of the act. it was urged that although the main portion of the definition which defined the shop as 'premises where goods are sold or services are rendered to customers' could not exclude the 'premises' element so that unless there were premises on which the goods were sold or services rendered to customers the main portion of the definition could not apply, in the inclusive part of the definition, the emphasis ceased to be on the 'premises' and shifted to the nature of the business so that provided there was a business of selling or rendering services to customers, any work-place wherever situate mainly used in connexion with it would fall within the definition. this argument was not accepted by the supreme court. it was held that the trade or business contemplated by the main.....
Judgment:

1. The petitioner was convicted of an offence under S. 52(f) read with rule 18(10) of the Bombay Shops and Establishments Act, and sentenced to pay a fine of Rs. 25 in default to suffer simple imprisonment for five days by the learned Presidency Magistrate, Fourteenth Court, Girgaum, Bombay.

2. The prosecution case against the petitioner was that he along with his brother was the owner of the electroplating works in the name and style of Langlay & Co., at 357, V.P. Road, opposite Two Elephants. On 30 April, 1959, at about 11-36 a.m., inspector Patwardhan of the Shops and Establishments Department of the Bombay Municipal Corporation visited the shop of the petitioner and found that the 'M' leave register and the 'N' leave cards of the four employees who were in the establishment, were kept blank. A complaint, therefore, was lodged against the petitioner and his brother for contravention of rule 18(10) of the rules made under the Shops and Establishments Act, which was made punishable under S. 52(f) of the said Act. Both the accused pleaded not guilty to the charge. Their main contention was that their establishment was not a shop under the Shops and Establishments Act, because no goods were sold either in retail or wholesale and no services were rendered to customers on the premises. They, however, admitted that the 'M' and 'N' forms were kept blank as alleged by the prosecution. At the close of the trial the case against accused 2 was withdrawn with the Court's permission.

3. The trial Court held that the establishment of the petitioner was a shop within the meaning of the Shops and Establishments Act and the failure to maintain the 'M' and 'N' forms properly filled in as required under the rules was a contravention of rule 18(10) of the rules and the petitioner was, therefore, guilty of such contravention. He, accordingly, convicted the petitioner and sentenced him as stated above.

4. In the present criminal revision application Mr. Purohit, the learned counsel for the petitioner, has argued that the learned trial Magistrate has erred in law in holding that the petitioner's establishment was a shop within the meaning of the Bombay Shops and Establishments Act. He has argued that a shop as defined in the said Act is 'any premises where services are rendered to customers.' In the present case the customers who are the care-owners do not themselves come to the premises but they send the parts which they want to be electroplated with their agents or servants. The premises of the petitioner, according to Mr. Purohit, therefore, are not premises where services are rendered to the customers and hence they are not a shop within the meaning of the Act.

5. I do not think that there is any substance in this contention. In order to satisfy the requirements of the definition it is not necessary that the customers must themselves go to the premises. Services rendered to customers are services as are required by or called for by the customers. If the services required or called for are in respect of articles belonging to the customers, the rendering of service to the customers will consist of accepting the articles for doing such work as is required in respect of them and delivering back the articles after executing the work as desired by the customers. If there is a defined premises where the articles are received for and on behalf of the customers and are returned to them after executing the required work, that is a premises where services are rendered to the customers irrespective of whether the customers themselves have brought the articles to the premises or have sent them with their agents or servants. The argument, therefore, of Mr. Purohit that the premises of the petitioner are not premises where services are rendered to the customers because the car-owners who are the customers do not themselves bring the car-parts for electroplating to the premises of the petitioner is not tenable.

6. Mr. Purohit has next argued that the premises of the petitioner is not a premises where service is rendered to customers because the articles sent by the customers are not received inside the premises or delivered back after executing the work anywhere inside the premises. According to Mr. Purohit, the car-parts are received just outside the premises and are also returned at that place. All that is done inside the premises is the process of electroplating. In these circumstances, says Mr. Purohit, that the establishment of the petitioner is a small laboratory or factory for carrying out the work of electroplating and not a shop within the meaning of the Bombay Shops and Establishments Act. In support of his argument he has relied on a decision of the Supreme Court. Kalidas Dhanjibhai v. State of Bombay L.L.J 1954 II 694 (S.C.)].

7. I do not think that there is any substance in this contention also. It may be, as Mr. Purohit says, that the car-parts are delivered not a counter inside the premises but a few feet outside the premises. It may be that the car-parts are detached from the cars outside the shop and it may also be that after they are electroplated they are fitted to the cars outside the shop. But the premises of the petitioner is the place where the business of rendering services to customers is conducted. It is there that the orders and instructions of the customers are received and it is there that the goods are delivered back to the customers after the work as required by them is executed. Moreover, the work-place of the petitioner, which he calls the factory or laboratory for carrying out the electroplating process, which is solely used in connexion with the business, which is conducted on the premises, is also a shop within the inclusive part of the definition of a 'shop' under S. 2(27) of the Bombay Shops and Establishments Act. The decision of the Supreme Court on which Mr. Purohit has relied is not helpful to him. In that case a man had a small workshop for manufacturing certain spare parts of mill-machinery. He went round the local mills and obtained orders for manufacture of spare parts. He manufactured these parts at his workshop and delivered them at the mills and collected the money therefor. It was admitted that no goods were sold at the premises nor was any service rendered to the customers at the premises. It was, however, argued that the establishment was a work-place, mainly used in connexion with the business of selling spare parts and was, therefore, a shop within the inclusive part of the definition of S. 2(27) of the Act. It was urged that although the main portion of the definition which defined the shop as 'premises where goods are sold or services are rendered to customers' could not exclude the 'premises' element so that unless there were premises on which the goods were sold or services rendered to customers the main portion of the definition could not apply, in the inclusive part of the definition, the emphasis ceased to be on the 'premises' and shifted to the nature of the business so that provided there was a business of selling or rendering services to customers, any work-place wherever situate mainly used in connexion with it would fall within the definition. This argument was not accepted by the Supreme Court. It was held that the trade or business contemplated by the main portion of the definition was not any business of selling wherever and however conducted, but only those trades where the selling was conducted the defined premises and the rest of the definition merely linked on the definition ancillary places mainly used in connexion with the business defined in the earlier part of the definition that is the business carried on defined premises. It was accordingly held that the concern in the case before the Supreme Court was not a shop within the definition of S. 2(27) of the Act. It will thus be seen that in that case there was no defined premises where the business of selling the spare parts was conducted and although there was a work-place where the parts were manufactured the work-place not being mainly used for the business of selling conducted on a definition under S. 2(27) of the Act. In the case before me the position is entirely different. As I have already pointed out, there is a defined premises where the business of rendering services is conducted and the premises, therefore, is a shop within the main part of the definition. Moreover, work-place is also mainly used in connexion with this business of rendering services to customers which is conducted on a defined premises and it also falls within the inclusive part of the definition of the word 'shop' in S. 2(27) of the Act.

8. Mr. Purohit has then argued that the State Government has not issued a notification under S. 5 of the Bombay Shops and Establishments Act making the said Act applicable to establishments of the kind to which the petitioner's concern belongs. The absence of such notification shows, according to him, that the State Government did not intend that an establishment of this kind should be governed by the Bombay Shops and Establishments Act. I cannot accept this argument because it assumes that the petitioner's establishment is not a shop within the definition in S. 2(27) of the Act. In view of my conclusion that the petitioner's establishment is a shop within the definition of the said Act no notification under S. 5 of the Act was necessary to make the Act applicable to the establishment.

9. Mr. Purohit has then argued that the petitioner's establishment which is a factory is excluded from the operation of the Bombay Shops and Establishments Act, which is a State Act, by reason of the Central Act, namely, the Factories Act, which deals with factories. His argument is that although a factory as defined in the Factories Act does not include small establishments like the petitioner's establishment, where only four persons are employed, by S. 85 of the said Act provision is made to make the said Act applicable to such smaller concerns by issuing a notification in that behalf. Mr. Purohit says that by reason of the said provision all factories are intended to be dealt with under the Central Act. It is argued that there being a Central Act dealing with factories, the Bombay Shops and Establishments Act which is a State Act cannot apply to factories. I do not think that the contention is well-founded. The Factories Act does not deal with all factories nor is it intended to deal exhaustively with all factories as is contended by Mr. Purohit. It deals with only such factories as fall within the definition of a factory given in the Act and no such other establishments which may be brought within its operation by notifications under S. 85 of the Act. 'Factories' is an item in the concurrent list and the State legislature is competent to legislate with regard to the subject to the extent to which it has not been legislated by the Central legislature. The State Act, namely, the Bombay Shops and Establishments Act, has advisedly excluded from the definition of the shop in S. 2(27) of the Act a factory which is defined as a factory under Clause (m) of S. 2 of the Factories Act, 1948, or which is deemed to be a factory under S. 85 of the said Act. The petitioner's establishment is neither a factory under S. 2(m) of the Factories Act nor is it such as can be deemed a factory under any of the notifications issued under S. 85 by the Central Government. That being so, Mr. Purohit's argument is that the petitioner's establishment being a factory is excluded from the operation of the Bombay Shops and Establishments Act. The learned trial Magistrate has held that the petitioner's establishment is not a factory because no manufacturing process is carried on in the establishment. I have not found it necessary to consider that question because in my view even if it were a factory it would not be excluded from the operation of the Shops and Establishments Act if it satisfied the definition in S. 2(27) of the said Act.

10. All the contentions, therefore, which are raised by Mr. Purohit in the present Criminal Revision Application fail and the revision application is rejected. The rule is, accordingly, discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //