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Ghulam HusaIn and anr. Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Case NumberCriminal Ref. No. 1092 of 1949
Judge
Reported inAIR1952All367
ActsUttar Pradesh Shoops and Commercial Establishments Act, 1947 - Sections 10 and 27
AppellantGhulam HusaIn and anr.
RespondentRex
Respondent AdvocateJai Kishen Lal, Adv.
DispositionApplication accepted
Excerpt:
criminal - fixation of closing day for shops - sections 10 and 27 of u. p. shops and commercial establishment act, 1947 - employer choice of close day subject to approval by authority - authorities cannot arbitrarily fix the close day - breach of order no offence. - - the case against the applicants is that the district magistrate issued an order fixing thursday as the close day and that the applicants failed to close their shop on three thursdays......to the employer, was ultra vires andby its breach the applicants committed no offence.the applicants were bound to close their shoponce a week on a day selected by them. there isno evidence that they did not close the shop onfridays.3. the reference is accepted and the applicants'conviction and sentences are set aside. the fine, if realised, shall be refunded.
Judgment:
ORDER

Desai, J.

1. The applicants were convicted by a Magistrate under Section 27, D. P. Shopa and Com-mercial Establishments Act, XXII [22] of 1947, for not closing their shop on three Thursdays in com-pliance with an order issued by the District Magistrate. Under Section 10 of the Act, every employer is bound to close his shop on one day of the week, known as the 'close day', the choice of the close day is of the employer though subject to the approval of such authority aa may be appointed in this behalf, and the employer is required to specify the close day in a notice permanently exhibited in the shop. Under the rules, the District Magistrate is the authority appointed to approve of close days. The case against the applicants is that the District Magistrate issued an order fixing Thursday as the close day and that the applicants failed to close their shop on three Thursdays. The reply of the applicants is that they were observing Friday as the close day and had closed their shop on Fridays. The Magistrate convicted the applicants and sentenced them to a fine of Rs. 25 each. This reference has been made by the learned Sessions Judge on the ground that the District Magistrate had no authority to fix the close day,

2. There is much force in the opinion of the learned Sessions Judge. The District Magistrate was given power only to approve of the close day selected by an employer. The choice of a close day is of the employer under the Act. It is admitted by the Shop Inspector that the applicants communicated to the District Magistrate their selection of Friday as the close day. All that the District Magistrate could do was to withhold his approval, if he did not wish to have Friday as the close day. He could not himself fix the close day. If he refused to approve of Friday as the close day, the applicants would have been obligedto select another close day and again seek hisapproval. The arbitrary order of the DistrictMagistrate fixing the close day, without regardto the provisions of Section 10 (2) leaving the choice ofa close day to the employer, was ultra vires andby its breach the applicants committed no offence.The applicants were bound to close their shoponce a week on a day selected by them. There isno evidence that they did not close the shop onFridays.

3. The reference is accepted and the applicants'conviction and sentences are set aside. The fine, if realised, shall be refunded.


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