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State Vs. Chaudhry (S.R.) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1961)ILLJ673All
AppellantState
RespondentChaudhry (S.R.) and ors.
Excerpt:
- .....opinion, this is fallacious because the conviction here is not for the sale but for keeping the shop open on a closed day. section 2a(j) does not give the son a right to keep the shop open or, for that matter, a right to sell. all it says is that he being a member of the family, shall not be affected by the provisions of the act. section 7(1), on the other hand, is directed against the owner of the shop, not against his family. it compels the owner to keep his shop closed one day in a week.what their lordships said only meant that the sale of the article necessarily proved that the shop was kept open. whether the sale was by a servant, owner or a relation of the owner, does not matter. it was not observed in that case that merely keeping the doors open amounted to keeping the shop.....
Judgment:

Bishambhar Dayal, J.

1. This is a revision against an order of acquittal acquitting the accused S.R. Chaudhry, proprietor, and Hari Shanker, manager of Union Dyers and Dry Cleaners, Birhana Road Kanpur, of an offence under Section 28 of the Uttar Pradesh Shops and Commercial Establishments Act. On 25 November 1958 the inspector appointed under the said Act visited the shop at 9-55 p.m. The time under the Act for closing the shop was 9 p.m. The inspector found that the door was open and a few people were inside the shop including the manager. The inspector in cross-examination has admitted that he saw no customers and he was unable to say whether only one light was burning or all the lights were burning and that the manager was looking into his accounts. Nobody took or gave any cloth at that time.

2. The defence produced by the accused was that the shop had been closed at 9 p.m., thereafter the manager was looking into the accounts. D.W. 1 (Durga Pd.), an old customer, had been produced to say that he had been refused cloth at 9-15 p.m. To the same effect is the statement of D.W. 2 (Lallan), an employee of the shop, that the shop had been closed at 9 p.m.

3. Upon these facts the Magistrate held that the shop was not open and that the accused had committed no offence within the meaning of the Act.

4. Learned Counsel for the State has contended that the interpretation of Section 6 of the Shops and Commercial Establishments Act by the Magistrate is not correct. According to him if the door of a shop is open it must be held that the shop was open, and the offence has been committed.

5. Under the Act the terms 'commercial establishment' and 'shop' have both been defined as premises where certain kinds of working are being done and Section 6 thereof provides the time before which and after which a 'commercial establishment' or 'shop' shall not be opened or remain open. Formerly there was a rule made by the State Government defining what is meant by 'opening' and 'closing' of the shop but that rule was deleted on 5 October 1959 by means of a notification. All that has to be looked into now is the general dictionary meaning of the term 'open and close' in relation to the shops and commercial establishments. There can be no doubt that in common parlance when somebody says that the shop is closed, it means that the shop is not doing any business. Even in banks sometimes officers come on holidays. The doors are open but the bank is closed for business. In the same way shops and commercial establishments are very often physically open but they are closed for customers and no business is done. In fact, customers, requesting business are refused because the shop is closed. The dictionary meaning of the term 'open' also is not very rigid. It is used in physical sense and also in figurative sense when it is used in respect of shops and commercial establishments. The new English dictionary among other meanings also gives the following meaning of the word 'open':

with the purpose as the main notion : to give access to; to render accessible to (persons or to the public), or for some purpose; to make freely accessible; to establish for the entrance of the public, of customers etc. as to open a shop, store, branch of a bank, registry office, etc.

The word 'open' when used in relation to a shop and commercial establishment necessarily means 'opened' or 'closed' for the purpose for which the shop or the commercial establishment exists. It does not only mean physically closing the doors or physically opening the doors. Taking such an interpretation would make the law impracticable. There are many people who live in their own shop and it is impossible for them to keep the shop physically closed on any day because they must go in and come out and their friends also must go in and come out. Then there are many people who do not have sufficient facilities at their house to do accounts and other writing work which they must bring to their shop and continue to do the work there even though the shop is closed for the customers. I, therefore, do not find it possible to interpret Section 6 of the Act in a way that in order to close the shop, all the doors of the shop must be physically closed.

6. Learned Counsel for the State cited the case of Nasir Ahmad v. State Crl. Ref. No. 47 of 1959 decided by a single Judge of this Court on 3 February 1960. The question In that case was whether a flourmill was closed or opened. It was found as a fact that although the machinery was in a room which was closed, yet the wheat was being cleaned which was a process necessary before grinding the wheat and it was observed as follows:

Here not only the premises were open so that any customer could go inside but also some operation which is done as a preliminary to the grinding was being done. Had the wheat been ground at the time of the inspector's visit, it would not, have been doubted that the shop or commercial establishment was not closed. But before wheat Is ground Impurities have to be removed and they were being removed at the time of the inspector's visit. If the fact that wheat was being ground meant that the shop or commercial establishment was not closed, the fact that Impurities were being removed from the wheat as a preliminary to grinding it mast also be held to mean that the shop or commercial establishment was not closed.

This case does not therefore support the contention of the learned Counsel appearing for the appellant. Learned Counsel has also Cited the case of Manohar Lal v. State 1951 A.L.J. 605. In that case the question arose under the Punjab Trade Employees' Act (No. X of 1940) whether the shop or the commercial establishment was open or not. The facts of that case were that on a closed day the son of the proprietor sold an article from that section of the shop which was closed and the argument for the accused was that the Act prohibited the employees or the servants and if the son of the owner sold an article, it cannot be said that he had opened the shop. This argument was repelled and it was observed as follows:

In our opinion, this is fallacious because the conviction here is not for the sale but for keeping the shop open on a closed day. Section 2A(j) does not give the son a right to keep the shop open or, for that matter, a right to sell. All it says is that he being a member of the family, shall not be affected by the provisions of the Act. Section 7(1), on the other hand, is directed against the owner of the shop, not against his family. It compels the owner to keep his shop closed one day in a week.

What their lordships said only meant that the sale of the article necessarily proved that the shop was kept open. Whether the sale was by a servant, owner or a relation of the owner, does not matter. it was not observed in that case that merely keeping the doors open amounted to keeping the shop open. It was the sale which proved that the shop was open. I see, therefore, nothing in that case which militates against the interpretation of the section which has been accepted by the Magistrate.

7. I see no force in this appeal and it is dismissed.


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