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Emperor Vs. Hasanali Gulamali Patanwalla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 300 of 1941
Judge
Reported in(1942)44BOMLR50
AppellantEmperor
RespondentHasanali Gulamali Patanwalla
Excerpt:
.....bound to put up in his business premises the notice required by sub-rule (4) of rule 12 of the rules framed under the act, specifying the day or days of the week on which the persons employed by him shall be given a holiday. - .....engagement is for a week or more, and that therefore as the accused did not employ any persons on weekly terms he was not bound to give his employees a holiday and it would be meaningless to require him in these circumstances to put up in his establishment a notice specifying the weekly holiday to be given. here again there is nothing in the language of section 17 to support the contention that only those employees whose engagement is for a week or more are entitled to the holiday mentioned in the section. the first clause of the section says that every person employed in a restaurant, eating house, theatre or any other place of public amusement or entertainment shall be given at least one day in a week as a holiday, and the proviso says that nothing in the sub-section shall apply to.....
Judgment:

N.J. Wadia, J.

1. This is an application in revision against a conviction of the applicant by the Chief Presidency Magistrate of Bombay under Rule 12(7) and 12(4) read with Rule 15 of the rules under the Bombay Shops and Establishments Act, 1939. The applicant is the proprietor of a restaurant called the Coronation Darbar Hotel in Bombay. The charge against him was that he did not exhibit in his restaurant a notice in form G, specifying the day or days of the week on which the persons employed by him shall be given a holiday as required by Rule 12(4) of the rules framed under the Act, and that he did not make entries in the registers or records which he was required to maintain under the rules. The learned Magistrate convicted the accused for breach of each of these sub-rule and sentenced him to pay' a fine of Rs. 10 on each of the two charges. The conviction under Rule 12(7) is not challenged before us. It is admitted that the accused was bound to make entries in the registers as required by Rule 12(7) and that he did not make them. The only point urged before us is that the conviction under Rule 12(4) cannot be sustained because owing to the fact that the accused employed persons in his restaurant only from day to day and not by the week of month, he was not bound to put up in his restaurant the notice mentioned in Sub-rule. (4) of Rule 12. The contention is that Sub-ruleule 12(4) and Section 17 of the Act do not apply at all to establishments which employ persons only from day to day and not on weekly or monthly terms. It has been found that the persons engaged by the accused in his restaurant were engaged only from day to day being paid at the end of each day. There is nothing in the language of Sub-rule. (4) of Rule 12 which can support the applicant's contention. The rule requires that every employer shall exhibit in his establishment a notice in form G, and the definition of 'employer' in Section 2, Sub-clause (5), makes no exception in favour of persons employing labourers on daily terms only. Nor does the definition of 'person employed' in Sub-clause (13) of Section 2 exclude from the meaning of 'persons employed' those persons whose employment is on daily terms. Section, 4 of the. Act specifically exempts from the operation of the Act several classes of employees, but here again there is no exemption of persons employed from day to day. There is therefore no reason why the fact that the accused employs people only on daily terms should exempt him from complying with the requirements of Sub-rule (4) of Rule 12.

2. It was argued that the language of Section 17 of the Act suggests that the persons who are entitled to a holiday are only those whose engagement is for a week or more, and that therefore as the accused did not employ any persons on weekly terms he was not bound to give his employees a holiday and it would be meaningless to require him in these circumstances to put up in his establishment a notice specifying the weekly holiday to be given. Here again there is nothing in the language of Section 17 to support the contention that only those employees whose engagement is for a week or more are entitled to the holiday mentioned in the section. The first clause of the section says that every person employed in a restaurant, eating house, theatre or any other place of public amusement or entertainment shall be given at least one day in a week as a holiday, and the proviso says that nothing in the sub-section shall apply to any person whose total period of employment is less than six days. There is no reference in the section to the terms on which the employee is engaged, whether by the week or by the day. The only reference is to the total period of employment being not less than six days. The first clause refers to one day in a week being given as a holiday and the proviso lays down that those who have worked for six days would be entitled to such a holiday. The meaning is that those who have worked for six days in any week would be entitled to one day as a holiday; and the second clause provides that the holiday shall be with pay. If the intention of the Legislature in enacting the proviso had been that the benefit of the section should not extend to those whose employment was by the day only, it would have been easy to say in the proviso that nothing in the sub-section should apply to those whose employment was from day to day. It seems to us that the meaning of the section is that all employees whether employed by the week or more or by the day only should be entitled to one day's holiday in every week in which they have worked for six days. The view taken by the learned Magistrate is, in our opinion, correct and the conviction of the accused was justified. The rule will be discharged.


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