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Dayawanti Bai Vs. Corporation of City of Nagpur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 331 of 1967
Judge
Reported in(1969)71BOMLR323; (1969)IILLJ128Bom; 1969MhLJ25
ActsBombay Shops and Establishments Act, 1948 - Sections 7, 7(1), 11(1), 48 and 51; Maharashtra Shops and Establishments Rules, 1961 - Rule 17
AppellantDayawanti Bai
RespondentCorporation of City of Nagpur
Excerpt:
.....one kind of business - employer starting another kind of business in same establishment--whether employer required under section 7 to obtain fresh registration.;under section 7 of the bombay shops and establishments act, 1948, what is required to be registered is the establishment and not the business which is carried on in the establishment. therefore, where an employer who initially was carrying on one kind of business and had registered his establishment under the act for that kind of business, he cannot be required to obtain a fresh registration if he carries on some other business in the same establishment in addition to the one in respect of which his establishment is registered. all that he is required to do is to notify the authorities under section 8 of the act that he has..........of the local area concerned, in form e, along with such fees as are prescribed in sch. ii any change as respects the total numbers of employees, within fifteen days after the expiry of the quarter to which the change relates; and any change other than in respect of the total number of employees, in respect of the information contained in the statement furnished by him under rule 5 within thirty days after the change has taken place; provided that, in local areas where the act is enforced by the state government, the employer shall credit the fees in government treasury and forward a copy of the chalan along with the notice of change in form e or, in the alternative, forward along with such notice, a postal order of the requisite amount.' rule 8 thus clearly requires that if any.....
Judgment:

1. The petitioner owns a flour-mill and has obtained the necessary registration of her establishment under S. 7 of the Bombay Shops and Establishments Act, 1948. It appears that after the petitioner obtained the registration of establishment for purposes of running a flour-mill she installed a kadbi-cutting machine in the same premises. These premises consists of a shed and it is not disputed that both the flour-mill and the cutting machine are run by the same electric motor. An inspector appointed by the Corporation of City of Nagpur, under S. 48 of the Act, inspected the establishment of the petitioner at about 10-15 p.m. on 7 June 1966 and he found that there was no registration in respect of the kadbi-cutting business. The inspector also found that the shop was found to be open after the prescribed hours, namely, beyond 8-30 p.m. and that when certain documents which the employer is required to maintain, such as register of employment, register of leave and the visit book were asked for the petitioner failed to produce the same. On these facts the inspector after obtaining the sanction of the Deputy Municipal Commissioner lodged a complaint alleging that the petitioner was guilty of offences under Ss. 7(1), 11(1)(a) and 51 of the Bombay Shops and Establishments Act, 1948.

2. The main witness examined in the case was the inspector Chakrawarti, P.W. 1, who had inspected the premises and two other witnesses who were examined to show that the petitioner was working the establishment beyond 8-30 p.m. At the trial, the inspector filed the sanction accorded to the prosecution by the Deputy Municipal Commissioner along with the statement of facts which was submitted by him on the basis of which he had asked for sanction. The corporation had also filed a true copy of the order of appointment of the witness Chakrawarti appointing him as the inspector under S. 48 of the said Act and authorizing him to exercise all powers and execute all duties as prescribed for an inspector under the Act.

3. The trying magistrate found as a fact that the petitioner was running her establishment beyond the prescribed hours and that she had failed to produce the necessary documents which she was required to maintain as aforesaid. She was, therefore, held guilty of offences under Ss. 11(1)(a) and 51 read with S. 52 of the Act. So far as the charge under S. 7(1) was concerned, the learned magistrate found that the petitioner had failed to send a statement as required by that section in respect of kadbi-mill establishment, as according to him, the kadbi-mill and the flour-mill though housed in the same premises were two different establishments. He took the view that they could not be called as one and the same establishment, and, therefore, held that the accused was guilty of a breach of provisions of S. 7(1) of the Act. It may be noted that before the learned magistrate no objection to the sanction which was produced was taken. The petitioner was sentenced to pay a fine of Rs. 30 in respect of each conviction or in default to undergo rigorous imprisonment for one week.

4. The petitioner filed a revision application against this conviction. But the conviction was upheld by the learned Additional Sessions Judge, Nagpur, who endorsed the view of the trying magistrate that the flour-mill was a separate establishment though both of them were situated in one and the same premises. The convocation on the other tow counts was also confirmed. Before the learned Additional Sessions Judge a ground was raised that the corporation had failed to prove that a valid sanction was accorded to the prosecution of the petitioner. That contention was, however, negatived and the sanction was held to be good. It is against this order that the present revision application is filed.

5. At the outset it may be stated that the questions whether the petitioner was carrying on business beyond the prescribed time and whether she had failed to produce the necessary records required to be maintained by her by the provisions of the Act are question of fact which the findings are against the petitioner. These findings must be accepted as binding in this revision application. The conviction of the petitioner, therefore, so far as Ss. 11(1)(a) and 51 read with S. 52 of the Act is concerned, must be affirmed.

6. The petitioner has agitated in this Court, the same contention which was raised before the learned Additional Sessions Judge with regard to the sanction. According to her, the sanction has not been properly proved and the learned counsel went a step further by contending that it was not even proved that the inspector who had inspected the premises and who had lodged the persecution was duly appointed in compliance with the conditions required by rule 17 of the Maharashtra Shops and Establishments Rules, 1961. When the inspector was examined as a witness by the prosecution, he produced the necessary documents regarding the sanction accorded by the Deputy Municipal Commissioner and at that stage the petitioner did not challenge the legality or the validity of the sanction. Even otherwise the documents on record clearly indicate that a valid sanction has been accorded by the Deputy Municipal Commissioner who was a person authorized to sanction the prosecution for purposes of the Act. The finding of the learned Additional Sessions Judge that the sanction was a valid sanction will, therefore, have to be affirmed. So far as the challenge to the capacity of the inspector or the legality of his appointment is concerned, it concerned, it is too late at the revisional stage to agitate this question of fact. I have, therefore, not permitted the learned counsel of advance any arguments in respect of that contention.

7. The substantial point raised by the learned counsel for the petitioner is that admittedly the establishment of the applicant was duly registered as required by the provisions of S. 7(1) of the Act, and, therefore, merely because another kind of business is carried on and which is admittedly done in the same premises or in the same shop, it was not necessary to obtain a registration, and, therefore, she could not be convicted of a breach of provisions of S. 7 of the Act. In order to appreciate this contention it is necessary to refer to the provisions of S. 7 of the Act. Section 7 casts an obligation on the employer in respect of every establishment to send to the inspector of the local area concerned a statement in the prescribed form together with such fees as may be prescribed . Sub-section (1) of S. 7 of the Act gives certain heads under which information is to be supplied and the other particulars which are required to be supplied prescribed by the rules under the Act. The relevant rule is rule 5 which requires that the information must be supplied in form A or B. The information to be supplied in form A is in respect of cases which are governed by S. 7(1) and the information given in form B is to be supplied where an application for renewal of registration certification is made under S. 2A of the Act. A reference to Sub-sec.(4) of S. 7 is necessary in view of the charge which is made against the petitioner. The charge made against the petitioner is as follows :

'On 7 June 1966 at 10-15 p.m. at the time of inspection of the aforesaid establishment it was observed that the above-mentioned employer failed to send a statement in prescribed form A together with necessary fees within thirty days from the date of commencement of business, for registering the establishment. This is an offence under S. 7(1) of the Bombay Shops and Establishments Act, 1948.' [Italicizing is ours.]

8. The 'aforesaid establishment' referred to in the charge is stated to be kadbi-cutting machine. Section 7(4) of the Act reads as follows :

'7. (4) Within thirty days from the date mentioned in Col. (2) below in respect of an establishment mentioned in Col. (1), the statement together with fees shall be sent to the inspector under Sub-section (1) : Establishments Date from which the period of thirty days to commence (1) (2) (1) Establishment existing in local The date on which this Act area mentioned in Sch. I on the comes into force. date on which this Act comes into force. (2) Establishments existing in local The date on which section area on the date on which this comes into force in the area. section comes into force. (3) New establishments in local areas The date on which the mentioned in Sch. I and other local establishment commences its areas in which this section has come works.' into force.'

9. A reading of the provision of the above sub-section will show that the establishments in respect of which statement in prescribed form A is required to be sent within the period of thirty days is of three categories as shown in Col. (1) above. Thus the obligation to supply the necessary information in form A under S. 7(1) is either in respect of an establishment existing in local area mentioned in Sch. II on the date on which the Act comes into force or establishments existing in local area on the date on which S. 7 comes into force, or new establishments in local areas mentioned in Sch. I and other local areas in which S. 7 has come into force. There is another provision to which a reference is necessary and that is S. 8 of the Act. This section reads as follows :

'8. It shall be the duty of an employer to notify to the inspector, in prescribed form, any change in any of the particulars contained in the statement submitted under S. 7 within such period, after the change has taken place, as taken place, as the State Government may prescribe in respect of any establishment or class of establishments. The inspector shall, on receiving such notice and the prescribed fees and on being satisfied about its correctness, make the change in the register of establishments in accordance with such notice and shall amend the registration certificate or issue a fresh registration certificate if necessary.'

10. Section 8 thus casts an obligation on the employer to notify to the inspector any change in any of the particulars contained in the statement submitted under S. 7 within such period as may be prescribed by the State Government after the change has taken place. Thus, while S. 7 prescribes submission of a statement in the prescribed form of an establishment of the kinds specified in Sub-section (4). Sl. 8 provides for a communication of a change in any of the information which is already supplied under S. 7. The form in which information as required by S. 8 is to be supplied is also given in rule 8 which reads as follows :

'8. Form for notifying change and fees. - The employer shall notify to the inspector of the local area concerned, in form E, along with such fees as are prescribed in Sch. II any change as respects the total numbers of employees, within fifteen days after the expiry of the quarter to which the change relates; and any change other than in respect of the total number of employees, in respect of the information contained in the statement furnished by him under rule 5 within thirty days after the change has taken place;

Provided that, in local areas where the Act is enforced by the State Government, the employer shall credit the fees in Government treasury and forward a copy of the chalan along with the notice of change in form E or, in the alternative, forward along with such notice, a postal order of the requisite amount.'

Rule 8 thus clearly requires that if any change takes place in respect of the information contained in the statement furnished by the employer under rule 5, he has to intimate that change within thirty days. In form A under rule 5, item 8, requires information with regard to 'nature of business' which is carried on by the employer and it is clear from the provisions of S. 8 read with rule 8 that any change under that head in the nature of business must also be intimated to the inspector.

11. There does not appear to be any prohibition in the Act to carry on different kinds of business by the same employer in the same premise. He may as well carry on different kinds of business in the same name for which also there is no prohibition. Thus, if the same employer, who initially was carrying on one kind of business and had registered his establishment for that kind of business, cannot be said to be required to obtain a fresh registration if he carries on some other business in the same establishment in addition to the one in respect of which his establishment is registered. It is not the business that is required to be registered by the provisions of the Bombay Shops and Establishments Act, but what is required to be registered is the establishment and the word 'establishment' is defined in S. 2(8) of the Act as follows :

'2.(8) 'establishment' means a shop, commercial establishment, residential hotel, restaurant, eating-housing, theatre, or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the State Government may, by notification in the official gazette, declare to be an establishment for the purposes of the Act.'

Section 2(27) defines what is a shop. The definition of 'shop' is as follows :

'2(27) 'shop' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an officer, a store-room, godown, warehouse or work-place, whether in the same premises or otherwise, mainly used in connexion with such trade or business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment.'

12. Thus a place whether services are rendered to a customer is a shop for purposes of the Act and these services may be of different kinds. But it cannot be said that where different kinds of services are rendered, for every kind of service which the employer chooses to embark upon after he has registered his establishment, the employer must submit necessary information under S. 7 for a fresh registration. If his establishment is already registered and he chooses to widen the nature of his activities in the same establishment, in such a case I fail to see how S. 7(1), which contemplates an initial registration of the establishment, is required to be complied with on every subsequent occasion when the employer embarks on a a new venture on the same premises in addition to the original business. When is required to be registered under S. 7 is an establishment which the petitioner had already registered. It appears that the applicant has not intimated to the authorities the fact that he has started another business in the same premise, which were registered as an establishment which she was required to do as provided by S. 8 of the Act. But the prosecution never charged her with a breach of S. 8 of the Act. She has been charged with the breach of S. 7(1) of the Act and the Corporation's ration's stand was that she was bound to obtain a fresh registration certificate treating the kadbi-cutting machine in the same establishment in the same premises as an independent establishment for the purposes of S. 7(1) of the Act. As I have shown above, the registration contemplated by S. 7 is of the establishment and on the finding of both the Courts below that new business was carried on in the same premises, I am unable to see how the petitioner could be held guilty of breach of S. 7(1) of the Act. In the view which I have taken above, the petitioner's conviction under S. 7 of the Act is liable to be set aside and is set aside. The order directing payment of fine of Rs. 30 for said offence is also set aside. But the petitioner's conviction under Ss. 11(1) and 51 read with S. 52 of the Act is confirmed. Since the conviction of the petitioner under S. 7(1) of the Act is set aside, the petitioner is entitled to a refund of the fine in respect of that conviction which has been paid by her. The revision application is thus partly allowed.


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