S.K. Verma, J.
1. The facts giving rise to these appeals are common and therefore they can be conveniently disposed of by one judgment.
2. The undisputed facts giving rise to the two appeals are as follows. There Is a commercial establishment, called Hind Trading and ., situate on P. Road in the city of Kanpur. B.S. Jain, the respondent in the two appeals, is the managing director of this commercial establishment (hereinafter referred to as the establishment). In the area in which the establishment is situate, Tuesday is observed as a close day in shops and commercial establishments. On 10 September 1958 B.S. Jain sent the following letter to the Chief Inspector of Shops and Commercial Establishments, Kanpur:-
This is to bring to your notice that our establishment shall remain open on 11 September 1956, for a couple of hours as we have to prepare certain important statements for incometax and also for our annual audit.
Sarvsri C.V.S. Krishan, V.S. Baiwar and Jag Narain who are our employees will be required to come on duty on the above date and they would toe paid overtime at the prescribed rates.
for Hind Trading and Manufacturing
Company (Private), Ltd.
3. On 2 November 1958 the Deputy Chief Inspector of Shops and Commercial Establishments, Uttar Pradesh, filed two complaints against the respondent. In one of the complaints the allegation was that the respondent had opened his establishment on Tuesday, 11 September 1956, the weekly close day for the area, in contravention of Section 10 of the Uttar Pradesh Shops and Commercial Establishments Act, 3947, read with Rules 5 and 6 of the Uttar Pradesh Shops and Commercial Establishments Rules, 1947, and thereby rendered himself liable to punishment under Section 27 of the Act. Tins complaint gave rise to summary trial Ho, 674 of 195fi. In the other complaint the allegation against the respondent was that he had not allowed weekly rest to his employees, Sarvsri Baiwar, C.V.S. Krishan and Jag Narain on, 11 September 1956 in contravention of 8.12 of the Uttar Pradesh Shops and Commercial Establishments Act, 1947, read with Rule 8 of the Uttar Pradesh Shops and Commercial Establishments Rules, 1947, and had thus rendered himself liable to punishment under Section 27 of the Act. Out of this complaint arose summary trial No. 766 of 1956. Both cases were tried summarily by Sri B.N. Rai, Magistrate, First Class, Kanpur, and the respondent was acquitted in both the cases. Government Appeal No. 520 of 1957 has been filed by the State of Uttar Pradesh against the acquittal of the respondent in case No. 674 of 1956 and Government Appeal No. 521 of 1957 has arisen out of the trial, namely, 766 of 1956.
4. In summary trial No. 674 of 1956 the respondent admitted that lie opened the establishment on a close day as he had to get certain statements prepared and he gave Intimation of this fact to the inspector of factories (he evidently meant inspector of shops and commercial establishments). In the other case the respondent admitted that he had called the three workers on a close day as certain statements had to be prepared, and intimation of this fact had been given to the inspector of factories. It was also alleged by the respondent that the employees in question had been paid extra remuneration for working overtime.
5. The learned magistrate in both the cases came to the conclusion that, as the workers in question had been paid for the work done by them overtime, the respondent had not contravened either Section 10 or Section 12 of the Shops and Commercial Establishments Act, 1947. In my opinion, the view of the law taken by the learned magistrate is not correct. Section 8 of the Act reads as follows:
8. No employer shall allow or require any employee to work for more than eight hours In any day, exclusive of Intervals allowed for rest or for meals;
Provided that during' any period of stocktaking, making of accounts or any other purpose described, any person other than a younger-parson, may be allowed or required to work for more than the hours fixed in this section, but not exceeding one hundred and twenty hours in the aggregate in any year:
Provided also that, any person employed on overtime shall be entitled to remuneration for such overtime work at twice the rate of his normal remuneration calculated by the hour.
Explanation.-For the purpose of calculating the normal hourly wage the day shall be reckoned as consisting of eight working hours.
Provided further that this section including the explanation in its application to a child or to a. young person shall be so read and construed as if, for the words.' eight hours' ' six hours were substituted.
It is obvious that Section 8 prohibits an employer to take work from an employee for more than eight hours in one day excluding Intervals allowed for rest or for meals. In certain contingencies he is allowed to take work from any employee for more than the prescribed period provided ho pays remuneration for the overtime work taken from such employee.
6. Section 10 of the Act reads as follows:
10. (1) Every employer shall close his shop or commercial establishment not included In the schedule on one day of the week, and such day shall hereinafter be referred to as 'the close day.
(2) Except as provided In the Negotiable Instruments Act, 1881, or any other enactment applying to a shop or a commercial establishment, the choice of a close day shall, subject to the approval of such authority as may be appointed in this behalf, rest with the employer arid shall be specified by him in a notice permanently exhibited in a conspicuous place in the shop or commercial establishment:
Provided that where a close day is prescribed in or under the Negotiable Instruments Act, 1881, or other enactment applying to a shop or commercial establishment, such day shall be specified in the notice above referred to.(3) The close day specified under Sub-section (2) shall not be altered by the employer except once in a year and any alteration shall take effect only as from 1 January in any year and shall be subject to the approval of such authority as may be appointed under Section 10(2):Provided that the employer shall toe fixing a notice in a conspicuous place in the shop or commercial establishment not later than 15 December next preceding giving previous intimation of his intention so to alter the close day.
Section 10 enjoins that every employer shall close his shop or establishment on the close day, There IB nothing in the Act to Justify the inference that by paying extra remuneration to employees an employer can open his shop or commercial establishment on a close day. Payment of extra remuneration for overtime work, thus, cannot entitle an owner of a shop or a commercial establishment to open his shop or commercial establishment on a close day.
7. Section 12 of the Act reads as follows:-
12. Every employee of a shop or commercial establishment except a watchman or caretaker shall be allowed by the employer in each week a holiday of one whole Say besides such holiday or holidays as may be granted under Section 11:Provided that nothing in this section shall apply to any person whose total period of employment in the week including any days spent on authorized leave or on holiday under Section 11 is less than six days; or entitled to an additional holiday an employee who has been allowed a whole holiday on the close day under Section 10.
8. By virtue of Section 12 the owner of a shop or a commercial establishment is bound to give one day's holiday in a week to every employee except to a watchman or a caretaker. If Sections 10 and 12 are read together, it becomes clear that the holiday given to a particular employee need not necessarily fall on a close day. In other words, the Act contemplates a situation in which an employer may require an employee of his to work on a close day provided such employee is given a holiday on some day of the week. The closing of the shop, however, is imperative. It is also clear that if an employer takes work from an employee on a close day, he is not bound to pay him extra remuneration for overtime, provided again such employee is given a holiday on some other day of the week. The question of payment of extra remuneration for overtime work arises only when a workman is made to work for more than the prescribed eight hours in a day and this must be kept quite separate from the question of closing the shop or commercial establishment on a close day and of allowing every employee a holiday on one day in a week. It is, thus, obvious that the mere payment of extra remuneration to the three employees or the giving of the notice dated 10 September 1956 to the Chief Inspector of Shops and Commercial Establishments, Kanpur, cannot save the respondent from liability under Section 27 for a contravention of Sections 10 and 12 of the Act. In my opinion, the view of the law taken by the learned magistrate is not correct.
9. A consideration of the facts, however, leads me to the conclusion that the respondent nevertheless cannot be said to have committed any offence. He admitted having opened the establishment on 11 September 1956 but, as is evident from his letter dated 10 September 1956, addressed to the Chief Inspector of Shops and Commercial Establishments, Kanpur, it was not for the purpose of carrying on any trade or business for profit but for preparing certain important statements for incometax and for audit purposes. There was no allegation on behalf of the prosecution that the respondent actually transacted any business. I have already held in Government Appeal No. 977 of 1957, State v. Kedar Nath Mehrotra (decided on 11 February 1959), the opening of a shop or a commercial establishment on a close day merely for preparing accounts is not contrary to the provisions of Section 10 of the Act. Similarly, the respondent no doubt admitted that he called the three workers in question on a close day for work but there is no allegation, much less proof, that these three employees were not given a holiday on any other day of the week. Merely taking work from employees on a close day is no offence under the Act though payment of extra remuneration or notice of each payment to the inspector of shops and commercial establishments is an altogether irrelevant consideration. On the facts alleged by the prosecution and admitted and proved in the case, I am of opinion that the acquittal of the respondent is correct, though the reasons given by the learned magistrate are wrong.
10. The two appeals are dismissed.