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Pathak (D.V.), Inspector, Shops and Establishments Vs. Ramchandra - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1961)IILLJ57MP
AppellantPathak (D.V.), Inspector, Shops and Establishments
RespondentRamchandra
Cases ReferredState v. Hiralal
Excerpt:
.....which, along with the cognate words employ, employee, employment, is essentially one of a relationship in personam. a person like the present respondent who, it is admitted, runs the establishment himself, is certainly the owner of the establishment; 8. the facts being admitted, the respondent is clearly guilty under section 47(f) for contravening section 16(1) of the act......allahabad high court in 1958--ii l.l.j. 679 is to the effect that the special definition of the word employer given in the act has, as it were, completely killed the dictionary meaning. whenever the word 'employer' is used in the act, it is proper for the court to read the 'owner or director of the establishment' and not anything of the grammatical sense. thus, as far as section 16(1) is concerned, the employer is the owner, whether or not he employs one or more hands in the establishment. the effect would be that notwithstanding the fact that he is called an 'employer,' he is just one who would be entitled to run the shop only for six days in the week and would be liable to punishment if he keeps it open on the closed day.6. whether a 'closed' day should mean closed with reference to.....
Judgment:

Krishnan, J.

1. This is an appeal under Section 417(3) of the Code of Criminal Procedure on special leave, by the inspector of shops and establishments (Indore Corporation) from the judgment of acquittal passed by the magistrate, holding that though the respondent admittedly kept open his' shop on a 'closed day' for business to the customers, he was not guilty under Section 47(f) of the Madhya Bharat Shops and Establishments' Act for contravening Section 16(1) of that Act because he was not employing anybody under him to work at the shop, but was running it himself unassisted by any paid employee. The learned magistrate has read the word 'employer' in its grammatical or etymological meaning, which, according to him, had not been displaced by the special meaning attributed to it in the definition in Section 2(7) of the Act. In this, he followed the single Bench decision of the Allahabad High Court in Abid Ali v. State 1958-I L.L.J. 734 though a diametrically opposite view has been taken in the subsequent Division Bench judgment of the same High Court in State v. Chandra Prakash 1958--II L.L.J. 679 which has not been cited before him. There is an earlier Bombay judgment in State v. Hiralal 1956--II L.L.J. 299 in which the view taken is that of the single Judge of the Allahabad High Court. The question before us is, therefore, to decide which of the different views is in consonance with the wording and purpose of the Act, and the definition of 'employer' as the owner of the shop or establishment.

2. The facts of the case are simple and are common ground. The respondent runs a shop in the Indore Corporation area and had notified under Section 16(1) of the Act, Thursday as the 'closed day ' for his shop. However he kept the shop open for business with customers on Thursday, 12 June 1958. Accordingly, the inspector of shops and establishments of the Indore Corporation filed a complaint against him under Section 47(f) of the Act. The defence was that he was not an 'employer' as he was working himself at the shop and the shop contained no paid employee. It was only an employer that was liable to punishment for keeping the shop open on a closed day, in contravention of Section 16(1) of the Act. Accepting this argument and following the single Bench decision of the Allahabad High Court already mentioned the learned magistrate acquitted him. Incidentally, in Para. 8 of the judgment, the learned magistrate has suggested that the Act itself might be ultra vires Article 19(f) of the Constitution, giving the fundamental right of free enterprise; but he was not competent to decide it and has not made any reference. Accordingly, it is unnecessary in this case to consider the vires of the Act with reference to Article 19.

3. The whole controversy centres round the real purport of the word 'employer' used in the Act, as well as the corresponding enactments in force in the Uttar Pradesh and the Bombay States. All these enactments speak of an 'employer' as 'the person owning or having ultimate control over the affairs of an establishment which means a shop, commercial establishment, residential hotel, etc., etc.' In other words, the definition of an employer given in Section 2(7) of the Act as well as in the corresponding sections of the Bombay and Uttar Pradesh Acts is something altogether different from the dictionary meaning which, along with the cognate words employ, employee, employment, is essentially one of a relationship in personam. At the same time, all these enactments use the cognate word 'employee' more or less in the dictionary sense to mean a person wholly or principally employed by the owner of the 'establishment.' The corresponding Hindi words in the Act are 'niyokta' (employer) used in a very special sense and 'niyokta' (employee) used in the general dictionary sense. The other key words figuring in the controversy do not have anything more than the general dictionary meaning. For example, 'holiday' means a day on which the establishment shall remain closed or on which the employee shall be given a holiday under the Act; 'closed' means, closed for two purposes; firstly, for the service of any customer, that is to say, for purchase and sale; and the second, for work within the establishment. The Act prescribes that there shall be one closed day for each shopping establishment in a week of seven days, but what day it might be, is left to the choice of the owner, called 'employer' in the Act, who shall notify it with the inspector appointed by the local authority in this case, the Indore Corporation. Having notified it, the owner, of the establishment (called throughout 'employer') shall display it in a conspicuous place so that everybody may know [Section 16(1)]. In case he fails to keep that day closed, he would be contravening the requirements of Section 16(1) and, accordingly, render himself punishable under Section 47(f). It is of interest to note that Section 16 itself has two sub-sections, Sub-section (1) to the effect already mentioned and Sub-section (2) which deals with the relationship of the employer (that is, the owner of the establishment) with his employee as understood in the grammatical sense.

4. The use of a word in a highly specialized sense naturally opens up a controversy as to the extent to which this specialized sense has displaced the grammatical sense. But when its cognate words are used in the same enactment in the general or dictionary sense, the controversy becomes very difficult indeed. One way of approaching it is to assume that the special meaning given to the 'employer' is only an enlargement without in any manner displacing the dictionary Sense that: 'It is a person who has, for money or other consideration, arranged, to take service from somebody else,' On this view, the single Bench of the Allahabad High Court has held that the Shops and Establishments Act does not concern itself with shops and establishments run by the owner himself without any employee, because such a person would in no way be an 'employer.' This is also the view taken by the Bombay High Court. In other words, to come under the operation of the Act, the person concerned should, for one thing, be the owner of the establishment or the shop, and, at the same time, be an employer as generally understood; that is to say, have somebody working under him in the establishment. A person like the present respondent who, it is admitted, runs the establishment himself, is certainly the owner of the establishment; be is not an 'employer' either in the grammatical sense, or for the purposes of the Act. Thus, the Act becomes a dead letter in regard to all shops and establishments run by the owner or members of his family without any assistance from a paid employee. It would, therefore, be open to them whether or not they notify a closed day with the inspector of the local authority, to go on working seven days in a week while, the owners of other establishments employing one or more hands will mot be allowed to run the establishment for anything more-than six days in the week.

5. The opposite view contained in the later Division Bench decision of the Allahabad High Court in 1958--II L.L.J. 679 is to the effect that the special definition of the word employer given in the Act has, as it were, completely killed the dictionary meaning. Whenever the word 'employer' is used in the Act, it is proper for the court to read the 'owner or director of the establishment' and not anything of the grammatical sense. Thus, as far as Section 16(1) is concerned, the employer is the owner, whether or not he employs one or more hands in the establishment. The effect would be that notwithstanding the fact that he is called an 'employer,' he is just one who would be entitled to run the shop only for six days in the week and would be liable to punishment if he keeps it open on the closed day.

6. Whether a 'closed' day should mean closed with reference to business within the shop such as arranging or reconditioning, or closed with reference to business with customers, is an important question. If the law requires that the shop should be closed only with reference to what is happening within, there is no ban to its remaining open for its dealings with the customers. However, the definition of the word 'closed' contained in Section 2(3) of the Act makes it clear that it is closed for both the purposes, 'service of any customer,' that is, business done with any customer, and also the 'business connected with the establishment.' Appearing on behalf of the respondent, Sri Waghmare has argued that 'service of any customer' would mean service rendered by any paid employee and not service by the owner acting on his own. The idea is that the shop need be closed only when it is possible for a paid employee to deal with the customer; but when the owner himself is dealing with the customer, the shop need not be closed. But it is difficult to accept this view in view of the clear wording of the definition.

7. The interpretation suggested in the Bombay judgment and in the single Bench Allahabad judgment would lead to several difficulties; firstly, ignoring for all practical purposes, the definition of 'employer' in the Act. Certainly it is unusual for the legislature to define a word in a manner altogether different from the popular meaning. It might, as in this case, give rise to confusion. But when the legislature has unequivocally decided to use the word in a very peculiar sense, we have to read the enactment in that sense. If confusion is likely, it should be minimised bearing in mind the special definition. When the legislature has given this definition, it is obvious that it is intending, to that extent (in this case the extent is practically the whole), to displace the popular meaning of the word as far as this enactment is concerned. The legislature may make law which is difficult; but that is no reason why once it is made, we should not take pains to ascertain the real effect. Again it is expressly enacted that a closed day is one in which business with customers is not allowed. In other words, the owner, even if he is running the shop on his own, cannot serve a customer on that day. Thin certainly cannot fit in with the Allahabad Single Bench and the Bombay view. Finally, the shops ran by its owners without the help of paid employees will be able to run seven days in a week while others, owned by persons who actually employ servants, will be entitled to work for six days only. Certainly, if the legislature intended such a thing, there would be nothing more to be said. But it appears in all the enactments [vide Section 16(1) of the Madhya Bharat Act] that the intention was that every shop and commercial establishment shall remain closed one day in the week. This again, cannot be reconciled with the single Bench and the Bombay view. On the other hand, the view taken by the Division Bench of Allahabad does not suffer from these difficulties. I would, therefore, follow the view taken in the Allahabad Division Bench, and hold that the word 'employer' had been used in a very peculiar sense and its usual grammatical sense has been displaced. The present respondent is an 'employer' for the purposes of the Act.

8. The facts being admitted, the respondent is clearly guilty under Section 47(f) for contravening Section 16(1) of the Act. He is convicted accordingly, and sentenced to pay a fine of Rs. 25--in default he shall suffer simple imprisonment for seven days. The appeal is allowed in these terms.


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