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State of Bombay Vs. V.M. Jawadekar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Reference No. 50 of 1959
Judge
Reported in(1960)62BOMLR183
AppellantState of Bombay
RespondentV.M. Jawadekar
DispositionAppeal Dismissed
Excerpt:
.....india, articles 19(1)(g), 19(6)-whether sections 9(1) & 9(2) in. so far as these relate to an employer violate article 19(1)(g) read with article 19(6).; the provisions of sections 9(1) and 9(2) of the central provinces and berar shops and establishments act, 1947, in so far as these relate to an employer are not ultra vires the state legislature, as there is nothing in them which is repugnant to or violates the constitutional guarantee contained in article 19(1)(g) read with article 19(6) of the constitution of india.; m.h. quareshi v. state of bihar [1958] a.i.r. 8.c. 731 and hariprasad shivshankar v. a.d. divelkar (1956) 59 bom. l.r. 384, s.c., referred to.;quaere: whether section 9(1) of the act applies to the case of a business-man who does not have any employee working in his..........it to the inspector and specify it in a notice prominently displayed in a conspicuous place in the shop. the employer shall not alter such day more often than once in three months, shall notify the alteration to the inspector and make the necessary change in the notice in the shop (1-a)....(2) it shall not be lawful for an employer to call an employee at, or for an employee to go to his shop or any other place for any work in connection with the business of his shop on a day on which such shop remains closed.section 2(5) of the act lays down:'employer' means a person having charge of, or owning 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 establishment;the act also defines the expression.....
Judgment:

S.T. Desai, J.

1. This is a Reference under Section 432 of the Code of Criminal Procedure by the learned Magistrate, First Class, Nagpur, and the Reference arises out of two prosecutions launched against one Jawadekar who runs a sweetmeat shop under the name 'Satari Pedha Shop' on the Sitabuldi Main Road in the city of Nagpur. In Criminal Case No. 1144 of 1958, the prosecution alleged that the Inspector of Shops and Establishments, Nagpur, visited. the shop of the accused on December 30, 1956, at 10 a.m. and found the accused selling sweetmeats to a number of customers with the help of his employee Govinda. December 30, 1956, was a weekly close day. In Criminal Case No. 1144-A of 1958, the prosecution alleged that the Inspector of Shops and Establishments, Nagpur, found the accused carrying on the business of his shop with the help of his two employees, Govinda and Feru, on December 9, 1956, which was a weekly close day. The accused was charged under the provisions of Sections 9(7) and 9(2) of the C.P. and Berar Shops and Establishments Act, 1947, as amended by the Act of 1955. Section 32 of the Act lays down penalties for offences under the Act and the relevant part of it is as under:

32. (1) Any employer who contravenes the provisions of Sections 4-A, 5, 7 to 22, 24 to 26 and 35 shall, on conviction, be punishable with fine which may extend to fifty rupees for the first offence and to five hundred rupees for every subsequent offence after his conviction for the first offence.

2. Before we examine the contentions raised on behalf of the accused and the view expressed by the learned Magistrate in making the Reference, it will be convenient to set out some other provisions of the Act which are relevant for the purpose of this reference. Sections 9(7) and 9(2) of the Act are as under:

9. (1) Every shop shall remain closed on one day of the week. The employer shall fix such day at the beginning of the year, notify it to the inspector and specify it in a notice prominently displayed in a conspicuous place in the shop. The employer shall not alter such day more often than once in three months, shall notify the alteration to the inspector and make the necessary change in the notice in the shop (1-A)....

(2) It shall not be lawful for an employer to call an employee at, or for an employee to go to his shop or any other place for any work in connection with the business of his shop on a day on which such shop remains closed.

Section 2(5) of the Act lays down:

'employer' means a person having charge of, or owning 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 establishment;

The Act also defines the expression 'person employed' in Section 2(13). The relevant part of that definition is:

'person employed' means-

(i) in the case of a shop, a person wholly or principally employed in the shop in connection with the business of the shop, whether on monthly, daily or contract basis, and includes apprentice.

3. It appears that, before the learned Magistrate, preliminary objections were raised as to the constitutionality inter alia of the provisions contained in Sections 9(7) and 9(2) which we have set out above. The learned Magistrate has expressed the view that those provisions are ultra vires the Constitution as being beyond the competence of the State Legislature. That view is founded on the provisions of Articles 19 and 14 of the Constitution, and he has pointed out that the impugned provisions militate against the constitutional guarantees contained in those articles.

4. It has been argued before us by the learned Special Government Pleader that there is nothing in the language of Sections 9(7) and 9(2) of the Act, which can be said to contravene the constitutional safeguards laid down in Articles 19 and 14 of the Constitution. It is difficult to see how Article 14 can have any bearing on the case before us and it will not be necessary to deal on that part of the reference in view of the fact that Mr. Padhye, learned Counsel for the accused, has not sought to found any argument on. that article. The learned Special Government Pleader has relied on principles, now well settled, as a result of the numerous decisions of their Lordships of the Supreme Court under Article 19(6) of the Constitution. We shall presently refer to the same. The argument is that the restrictions laid down in Sections 9(7) and 9(2) of the Act are not hit by the provisions of Article 19 of the Constitution inasmuch as the provisions of law impugned by the accused are in the interests of the general public and contain reasonable restrictions on the exercise of the right conferred by sub-el, (g) of Clause (7) of Article 19.

5. On the other hand, it has been argued by Mr. Padhye that the language of Section 9(7) is very wide and prevents a shopkeeper from serving his customers in person, that is, without the assistance of any employee, on one day in every week. The argument has been that it is the fundamental right of a citizen to carry on his trade or business on every day of the week and at any hour of the day or night without any restriction by the Government. The argument is patently unsound, because there is no absolute right to carry on trade or business guaranteed by the Constitution. The right to carry on trade or business indubitably is protected by the Constitution and is guaranteed by the Constitution, but the right carries with it certain natural obligations and. necessary restrictions and. it is those obligations and restrictions for which provision is made in Clauses (6') of Article 19 of the Constitution which empowers the State to make any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by that article. Therefore, the short question that we have to determine is whether the restrictions imposed by Section 9(7) of the C.P. and Berar Shops and Establishments Act, 1947, contain reasonable restrictions which are in the interests oil the general public it is a firmly established principle that a restriction to be reasonable must have a rational relation to the object which the Legislature seeks to achieve and must not be in excess of the object. The principles underlying Article 19(6), as we have already mentioned, are well established and well recognised. It will suffice to refer to the following passage from the judgment of the learned Chief Justice of the Supreme Court in M. II, Quareshi v. State of Bihar : [1959]1SCR629 :

Clause (6) of Article 19 protects a law which imposes in the interest of the general public reasonable restrictions on the exercise of the right conferred by Sub-clause (g) of Clause (1) of Article 19. Quite obviously it is left to the Court, in case of dispute, to determine the reasonableness of the restrictions imposed by the law. In determining that question the Court, we conceive, cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by Sub-clause (g) is expressed in general language and if there had been no qualifying provision like Clause (6), the right so conferred would have been an absolute one. To the person who has this right any restriction will be irksome and may well be regarded by him as unreasonable. But the question cannot, be decided on that basis. What the Court has to do is to consider whether the restrictions imposed are reasonable in the interests of the general public.

6. Now, the whole argument of Mr. Padhye before us has been that the restriction imposed by Section 9(7) of the C.P. andberar Shops and Establishments Act, 1947, is unreasonable because it deprives the accused of his right to carry on business by himself on a day on which his employees cannot be asked to work in the shop. It is said that there is no reason why an employer cannot open his shop and personally serve customers on the weekly holiday if he takes care to see that no employee is permitted to work in the shop on that day. This argument is obviously baaed on the assumption that the right guaranteed by Sub-clause (g) of Clause (7) of Article 19 of the Constitution is an unqualified and absolute right. The answer to the argument is furnished in the passage from the judgment of the learned Chief Justice of India quoted by us immediately above. Of course, to the employer, the restriction is bound to seem irksome and unreasonable. But the question is not to be decided on that basis. What we have to see is 'Is the restriction imposed by the impugned legislation a reasonable restriction-a restriction which is in the interests of the general public?' In this Reference, we are dealing with the case of an employer who is alleged to have opened his shop on a holiday meaning thereby a day on which he was by operation of Section 9(7) bound to keep it closed and on which day he was deriving the assistance from his employees in serving his customers. Employees also are members of the general public and the legislation, which is intended to secure a weekly holiday for employees in every shop, it cannot be gainsaid, is a reasonable restriction on the right of the employer and also is in the interests of the general public.

7. Then it is said by Mr. Padhye that a person cannot be deprived from earning his livelihood so long as he does not act against the interests of the employees. This is more or less the same argument couched in different language and the answer to this has already been given by us. It has also been urged that the Act leaves it open for an employee to go and do some work with another employer on the holiday, and that being so, there is no reason why the regular employer should not be allowed to open his shop on the holiday and work personally in the shop and serve his customers. The analogy is obviously unsound. The Legislature does not prevent an employer from carrying on any business or activity other than that of the shop on the holiday. But the object of the section and the scheme of the Act make it abundantly clear that Section 9(7) is enacted to give protection to the employees and also to see that they are not exploited by unscrupulous employers. That by itself would seem to be a consideration and purpose which would make the restriction on the employers reasonable. The compulsory holiday and closing of the shop would be in the interests of the general public since the employees are a section of the general public.

8. It is to be noticed that Sections 9(1), 9(2) and 32(7), the provisions of which we have already set out, speak of an employer and in the case before us we are dealing with an employer. The expression 'employer' has been defned to include a person having charge of, or owning an establishment to which the Act applies and includes the manager, agent or any other person acting in the general management or control of such establishment. That definition would not apply if there is anything repugnant in the subject or context in which it has to be read. We have made this observation at this stage because one of the arguments canvassed by Mr. Padhye was that Section 9(7) if read with that definition is in such wide terms that it would apply to the case of a business-man who did not have any employee working in his shop and was alone conducting his shop and serving his customers. The argument ran that in such a case it would be most unreasonable to restrict him from carrying on his business for all seven days of the week and to compel him to close his shop for one day in a week. It was said that it should be a matter of his choice as to when if at all he should observe a holiday and when he should not and it would be unreasonable on the part of the Legislature to compel him to take a holiday once a week. It may be that Section 9(7) which speaks of an 'an employer' may not reach any such case. But we do not intend to express any opinion on the same since, in this Reference, we are not called upon to decide that point. While dealing with the question of the definition of 'an employer' in the Act, we may also point out to what their Lordships of the Supreme Court observed in the context. of an artificial definition in Hariprasad Shivshanhar v. A.D. Divelkar (1956) 59 Bom. L.R. 384. It was observed by the Supreme Court:

An artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined.

9. As already mentioned, we are concerned in this Reference with the case of an employer who, it is alleged by the prosecution, had kept his shop open on days on which he should have kept it closed and who was helped on those days in the conduct of his business by his employees. The charges against him are under Sections 9(7) and 9(2) of the C.P. and Berar Shops and Establishments Act, 1947, and the charge under Section 9(7) relates to a default on his part to keep the shop closed on a weekly holiday as required by the provisions of that section. We are only called upon to consider the vires of the section so far as it relates to an employer. We are unable to see anything in the section which is repugnant to or violates the constitutional guarantee contained in Article19(7)(g) read! with Article 19(6) of the Constitution.

10. We find that the view which we take of the matter is also the view expressed in Sadasivam v. State ofMadras : (1957)ILLJ524Mad and in Abid Ali v. State of U.P. [1958] I L.L.J. 734 and Orandhi Mangaraju v. Labour Inspector : (1959)IILLJ257AP . The last two decisions are of the High Court of Allahabad and the High Court of Andhra Pradesh.

11. We are unable to accept the Reference as, in our opinion, the provisions of Sections 9(7) and 9(2) impugned by the accused are not ultra vires the State legislature.


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