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Emperor Vs. Mahamed Kassam Panwalla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 229 of 1941
Judge
Reported in(1941)43BOMLR952
AppellantEmperor
RespondentMahamed Kassam Panwalla
DispositionAppeal allowed
Excerpt:
.....is liable to be convicted under section 5. 8. with regard to the rules, it is, of course, clear that a good many of the sections of the act, for example sections 7, 8 and 9, have no application to shops in which no one is employed, and rule 12, some of the provisions of which the accused is said to have infringed, is, i think, mainly enacted for the benefit of employees......of the act and these rules, in english and in the regional language of the majority of the persons employed by him, as the local authority or government may direct. this sub-rule does not apply, in my opinion, if there are no employees. sub-rule (10) provides that every employer shall maintain a visit book in which an inspector visiting the establishment may record his remarks regarding any defects that may come to light at the time of his inspection and shall produce it whenever required to do so by any inspector. the accused has, i think, committed a technical breach of this sub-rule, though the maintenance of a visit book is not of much consequence, i should think, in the case of a shop where no persons are employed.9. we convict the accused under section 5(1)(b) read with.....
Judgment:

John Beaumont, C.J.

1. This is an appeal by Government against the acquittal of the accused, who was charged with infringement of the provisions of Section 5(1) (b) of the Bombay Shops and Establishments Act of 1939 and Rule 12(10), (5) of the rules made under the Act.

2. The accused is the keeper of a panshop, which he conducts himself and in which he employs no one. On February 15, 1941, he sold a pan worth one pice at about 10-20 p.m., and thereby he is alleged to have infringed Section 5 of the Act.

3. The preamble of the Act recites that it is expedient to make provision for the regulation of hours of work in shops, commercial establishments, restaurants, eating houses, theatres and other establishments and for certain other purposes thereinafter specified. Then there are certain definitions, and to those which are material I will return. Then Section 5(1)(b) provides:

Save as provided by or under any other enactment for the time being in force, no shop shall on any day be closed later than 9 p.m. or such other earlier hour as may be fixed by the Provincial Government by a general or special order in this behalf.

4. Now, the main contention of the accused is that this being a one man shop, managed by the owner with no employees, the Act does not apply.Taking Section 5 by itself, there is nothing whatever to suggest that it does not apply to a one-man shop. The prohibition includes any shop; the direction being that no shop shall be closed later than 9 p.m. But when one turns to the penal section, which is Section 30, it provides that any employer who contravenes the provisions of Section 5 shall be punishable. So one has to see whether the accused is an employer, and prima facie, since he does not employ anybody, he is not an employer. But it is open to the Legislature to make its own dictionary for the purpose of any particular Act; and the term 'employer' is defined in Section 2(5) of the Act as meaning a person having charge of or owning the business of 'an establishment to which this Act applies',. and includes the manager, agent or any other person acting in the general management or control of such shop, restaurant, theatre or establishment. Then the expression 'establishment to which this Act applies' is denned in Sub-clause (6) as meaning, amongst other things, a shop. So that reading those two sub-clauses together, for the purposes of the present application,.'employer' means a person having charge of or owning the business of a shop.

5. The learned Magistrate was of opinion that it is implicit in the word 'employer' that somebody should be employed. But with all respect to the learned Magistrate, that is disregarding the definition contained in the Act. Undoubtedly the word 'employer', according to its. ordinary meaning in the English language, signifies a person who employs somebody else. But it is competent for the Legislature to enact that in a particular Act the word shall include the owner of a business, whether or no anybody is employed therein; and that seems to me the effect of the present definition. If one were to read into the definition the provision that an employer must employ somebody, then I think undoubtedly Section 5 would not apply to a one-man-shop; but I have no doubt from the terms of the whole Act, that the section was intended to include such a shop. Section 6 provides that no person shall after the closing hour fixed under Section 5 carry on in or adjacent to a street or a public place the sale of any goods. The effect of that section, or one effect at any rate, is to protect an employer, who has been compelled to close his shop at 9 p.m., from competition by sales in a public place after that hour. That may not be the only object of the section; another object may be to prevent a man who has been compelled to close his shop from reopening his business in the street or other public-place. But, at any rate, protection of the shop, which is compelled to close at 9 p.m., from outside competition is one of the effects of Section 6, and the same may be said of Section 14, which provides that after the hour fixed for closing. of shops under Section 5, no goods of the kind sold in such shops shall be sold in any restaurant, eating house, theatre or any other place of public amusement or entertainment except for consumption on the premises. That section clearly protects the shop which has been compelled to close at 9 o'clock from competition after that hour by a place of public amusement. If Section 5 does not apply to a one-man shop, one would certainly expect to find some provision protecting the employer who is compelled to close his shop at 9 o'clock, from competition by the one-man shop after that hour; and there is no such provision in the Act. It seems to me, therefore, that there is no justification for restricting the meaning which the Legislature has seen fit to give to the word 'employer' for the purposes of this Act, although the meaning may not be the one normally attached to the word in the English language.

6. The learned Magistrate, I think, fell into an error not uncommon in construing Acts of the Legislature. He made up his mind, apart from the Act, what was the intention of the Legislature in passing the Act, and construed the Act so as to give effect to his preconceived idea as to the Legislature's intention. He made up his mind that the object of the Legislature was to protect employees, and nothing else, and construed the Act so as to make every part of it fit in with that object. With all respect to the learned Magistrate, that is not the way to construe the Act. One has to take the language as one finds it, although, of course, one has to look at the Act as a whole and construe it so as to give effect to what appears from the language of the whole Act to be the intention of the Legislature. The language of the preamble and of Section 5, and the definition of 'employer' do not suggest that the sole intention was to benefit employees.

7. The only other section relied on by the accused is Section 4(1)(a), which provides that nothing in the Act shall apply to persons occupying positions of management or employed in a confidential capacity. It is suggested that that sub-section saves the accused, who was managing his shop, from liability. The sub-section is not, I think, easy to construe. Under the penal section an employer is liable for breaches of the Act, and an employer is defined expressly as including a manager, and, therefore, a manager can be prosecuted for an infringement of the Act. But then Section 4(1) (a) says that nothing in the Act shall apply to persons occupying a position of management. It may be that the sub-section was intended to mean that persons occupying positions of management or employed in a confidential capacity should not be regarded as employees under the Act. Whether or not that is the meaning, it is not necessary to decide in this case. I am clearly of opinion that the owner of a shop cannot be said to be a person occupying a position of management. He is the owner. One of the incidents of ownership is no doubt the right to manage, but one cannot say that an owner is a person occupying a position of management. I think, therefore, that the accused is liable to be convicted under Section 5.

8. With regard to the rules, it is, of course, clear that a good many of the sections of the Act, for example Sections 7, 8 and 9, have no application to shops in which no one is employed, and Rule 12, some of the provisions of which the accused is said to have infringed, is, I think, mainly enacted for the benefit of employees. Rule 12(5) provides that every employer shall exhibit in his establishment a notice containing such extracts of the Act and these rules, in English and in the regional language of the majority of the persons employed by him, as the local authority or Government may direct. This sub-rule does not apply, in my opinion, if there are no employees. Sub-rule (10) provides that every employer shall maintain a visit book in which an Inspector visiting the establishment may record his remarks regarding any defects that may come to light at the time of his inspection and shall produce it whenever required to do so by any Inspector. The accused has, I think, committed a technical breach of this sub-rule, though the maintenance of a visit book is not of much consequence, I should think, in the case of a shop where no persons are employed.

9. We convict the accused under Section 5(1)(b) read with Section 30 of the Act, and under Rule 12(10) read with Rule 15 of the rules made under the Act. We think it is not a case for a heavy sentence. We sentence the accused for infringement of Section 5(1)(b) to pay a fine of Rs. 4-15-0 and for infringement of Rule 12(20) to a fine of Re. 0-1-0, making altogether Rs. 5.


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