1. The petitioner has filed the present Revision Petition challenging his conviction by the learned Metropolitan Magistrate, 29th Court, Dadar, Bombay, under S. 394 (1) (e) (i) read with Section 471 of the Bombay Municipal Corporation Act as also the sentence of fine of Rs. 200/-, in default to suffer simple imprisonment for 30 days imposed on him.
2. The brief facts leading to the prosecution of the Petitioner, who was original Accused No. 2 before the Trial Court, are the following:--
Accused No. l was the Personnel Officer of Messrs, Indian Tools Manufacturers Limited which has its factory at Sion (hereinafter referred to as the Company). Accused No. 2 was a caterer running a canteen. By an Agreement dated 16th March 1974, Accused No. 2 agreed to operate a canteen in the factory premises of the said Company at Sion on the terms and conditions contained therein.
3. On 2-12-1976 at about 12.45p.m. Padinalthu Abraham (P. W. 1), an Inspector in the employ of the Bombay Municipal Corporation, visited the factory premises of the said Company. Abraham enquired with Accused Nos. 1 and 2 whether they had obtained a licence under Section 394 (1) (e) of the B. M. C. Act, whereupon he was informed that no such licence or permit had been obtained either by Accused No. 1 or by Accused No. 2. Abraham then reported this matter to his superior. Abraham also put up an Offence Sheet and obtained sanction to prosecute the two Accused.
At the Trial with the consent of parties, the Agreement as between the said Company and Accused No. 2, D/- 16-3-1974 had been tendered and marked Ex. 'E'.
4. The learned Magistrate was pleased to come to one conclusion that it was obligatory upon Accused No. 2 to obtain a licence under S. 394 (1) (e) of the Bombay Municipal Corporation Act. The learned Magistrate came to the conclusion that Accused No. 1, being the Personnel Officer, was only an employee of the said Company and, therefore, he was under no obligation to obtain any licence under the Bombay Municipal Corporation Act. The learned Magistrate was pleased to acquit Accused No. 1 of the offence charged. The learned Magistrate convicted Accused No. 2 under Section 394 (1) (e) (i) read with Section 471 of the Bombay Municipal Corporation Act and sentenced him as slated hereinabove.
5. There is no dispute as between the parties with regard to the facts mentioned above. Mr. Shrikrishna, the learned Advocate appearing on behalf of the Petitioner, Accused No. 2, submitted three points for my consideration. Mr. Shrikrishna, firstly, contended that Accused No. 2 did not carry on the business of an 'eating house' inasmuch as the staff canteen run by Accused No. 2 on behalf of the said Company was not open to the public. The entry to the staff canteen was restricted only to the employees of the said Company. That being the case, according to Mr. Shrikrishna, the staff canteen could not be termed either as an 'eating house' or as a 'catering establishment'.
6. Mr. Shrikrishna relied upon a ruling of our High Court in the case of Hotel Mazdoor Sabha v. N.J. Alvares. : AIR1965Bom13 wherein K.K. Desai. J. sitting singly was pleased to observe (at p. 15):--
'The carrying on of the business of supply of meals or refreshments is the first essential of the premises being 'restaurant or eating house' under Sub-Section (25) of S. 2. Staff canteens where an employer makes arrangements for supply of meals or refreshments without intending to carry on business thereof cannot be held to be 'restaurant or eating house' within the meaning of the Act. Wherever an employer makes merely arrangements for supply of meals or refreshments to its employees and does not carry on wholly or principally the ' business of supply of meals or refreshments, the premises would not be 'restaurant or eating house' within the meaning of the Act. The provisions of the Act would not be applicable to such establishments.'
7. In order to appreciate this submission as also the other submissions made by Mr. Shrikrishna, it will be relevant at this stage to set out certain provisions of the Bombay Municipal Corporation Act. S. 394 (1) (e) (i) provides as follows:--
'Section 394 (1): Except under and in accordance with the terms and conditions of the licence granted by the Commr., no person shall -- (e) carry on, or allow or suffer to be carried on, in or upon by any premises, (i) any of the trades specified in Part IV of Schedule M, or any process or operation connected with any such trade; The material provision of Part IV of Schedule M referred to in Section 394 runs as follows:--
'Trades or processes or operations connected with trades which shall not be carried on or allowed to be carried on in or upon any premises without alicence:--
Keening of an eating house or a catering establishment.'
Section 3 (ff) of the Bombay Municipal Corporation Act defines 'eating house' as follows:--
' 'eating-house' means any premises to which the public are admitted and where any kind of food is prepared or supplied for consumption on the premises for the profit or gain of any person owning or having an interest in or managing such premises;'
8. Now it is pertinent to note that although the expression 'eating house' has been defined under the Bombay Municipal Corporation Act, the expression 'catering establishment' has not been defined. It is true that the staff canteen run by Accused No. 2 was not open to the members of the public at large and the admission was restricted solely to the employees of the said Company. To that extent Mr. Shrikrishna would be justified in his submission that the staff canteen could not be termed as an 'eating house.' However, what is significant is the fact that Accused No. 2 has not been charged with carrying on an 'eating house' but he has been charged for carrying on a catering establishment. 'Catering establishment' is an expression which is wider in its connotation than the expression 'eating house' and whether a staff canteen was open to the public or restricted only to a section of the public, it would still fall within the definition of a 'catering establishment'. A similar argument was urged in an un-reported case of the Bombay High Court in Criminal Appeal No. 593 of 1972 (By State) wherein Tulzapurkar. J. was pleased to observe in his Judgment dated 21st November 1973:--
'In this view of the matter, it is clear to me that the expression ' a catering establishment' will have to be understood in its normal dictionary meaning. The word 'cater' as a verb means, according to the Oxford Dictionary, 'To act as caterer, or purveyor of provisions; to provide a supply of food'. It also means 'To occupy oneself in procuring or providing (requisites, things desired, etc.) and 'cater is understood to mean 'Purvey food and other requisites.' A catering establishment would, therefore, be an establishment where purveying of food and other requisites takes place. It is therefore, not necessary, according to the dictionary meaning of the expression, that the members of the public should have an access to such an establishment before it could become 'a catering establishment' within the meaning of the relevant entry in Part TV of Schedule M. It cannot be disputed that in the canteen in question articles offood and other requisites are being purveyed to the students and the members of the Institute and, therefore, the canteen in question clearly falls within the expression 'a catering establishment' occurring in the relevant entry in Part IV of Schedule.'
9. The ruling in the case of HotelMazdoor Sabha v. N.J. Alvares, : AIR1965Bom13 cited by Mr. Shrikrishnadealt with the question which aroseunder the Bombay Shops and Establishments Act and was concerned with theexpression 'eating house.' As I havepointed out, the Accused in this casewere charged for carrying ona Catering establishment and,therefore, the ruling cited by Mr-Shrikrishna would not be relevant forthe purpose of the issue before me.
10. Mr. Shrikrishna next submitted that under the provisions of Section 46 of the Factories Act, it was obligatory upon the employer of a factory which employed more than 250 workers to provide a canteen or canteens for the use of the workers. Mr. Shrikrishna submitted that such a canteen had to be conducted in accordance with the provisions of Rules 79 to 85 of the Factories Rules 1963. According to Mr. Shrikrishna a statutory duty had been cast upon the employer of a factory to run a canteen and further under Rule 85 (2) of the Factories Rules, canteens had to be run on a no-profit basis. That being the case, Mr. Shrikrishna urged, it could not be stated that Accused No. 2 was carrying on the trade of a catering establishment Now ft is true that Section 46 of the Factories Act, I948 casts an obligation upon the employer of a factory wherein more than 250 workers are employed to provide a canteen, or canteens for the use of the workers. Section 46 (!) of the Factories Act provides as follows:--
'Section 46. -- Canteens -- (1) The State Government may make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers.'
Rule 85 Sub-rule (2) provides:--
'Food, drink and other items served in the canteen shall be sold on nonprofit basis and in computing the charges to be made for such food, drink orother items, the following items shall not be taken into consideration, namely:--
(The rest of the Sub-rule is not relevant for the purpose of this discussion)
The argument urged by Mr. Shrikrishna that since the staff canteen was conducted on a no-profit basis, it could not be termed as a catering establishment, cannot be accepted. Now it is true that so far as the employer is concerned, the staff canteen has to be run on a no-profit basis. However, the same could not be stated so far as Accused No. 2 was concerned. Accused No. 2 conducted the staff canteen of the said Company for the purpose of making a profit. It could not be, said, and indeed it has not been urged by Mr. Shrikrishna, that Accused No. 2 was motivated by considerations of philanthropy or charity. Indeed the Agreement dated 16th March 1974 as between Accused No. 2 and the said Company provides for the payment of Rs. 4650/-per month by the said Company to Accused No. 2 plus 10% of the value of the coupons sold during the month. It therefore, cannot be stated that Accused No. 2 conducted the staff canteen on a no-profit basis and he was not carrying a trade and therefore, Mr. Shrikrishna's argument must be rejected.
11. Finally, Mr. Shrikrishna submitted that the provisions of S. 394 of the Bombay Municipal Corporation Act were repetitive of the provisions of the Factories Act. Mr. Shrikrishna urged that the provisions of the Factories Act as also the Rules sufficiently protected the canteens being run in a hygienic and on an economical basis safeguarding the welfare of the workers. Mr. Shrikrishna stated that the provisions of the Bombay Municipal Corporation Act so far as they relate to eating houses and catering establishments also provided for eating houses and catering establishments being rim hygienically and efficiently. He, therefore, submitted that if the same purpose was served by both the Statutes, then it was unnecessary to compel Accused No. 2 to obtain a licence under the Bombay Municipal Corporation Act. It may be pointed out that so far as the Factories Act was concerned, the provisions therein as also the Rules made thereunder weremeant for the protection of the workers and with a view to benefit them. So far ss the provisions of the Bombay Municipal Corporation Act were concerned,they are enacted according to the State ment of Objects and Reasons of that Act for the purpose of seeing that certain trades are not carried out in a dangerous manner or are likely to create a nuisance or to endanger life. It, therefore, cannot be stated that the provisions of the two Acts overlap each other. Assuming, however, that the purpose of the two Acts was similar, even then there could be no reason why an obligation cast upon a party to obtain a licence under the provisions of one of such Acts should not be complied with. I, therefore, see no substance in this argument of Mr. Shrikrishna.
12. I am of the view that the learned Magistrate was justified in convicting Accused No. 2 under S. 394 (1) (e) (i) read with Section 471 of the Bombay Municipal Corporation Act and in sentencing Accused No. 2 to the minimum penalty thereunder. The Petition is, therefore, dismissed and the Rule discharged.
13. Petition dismissed.