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Jethalal Tribhovandas Valand Vs. Vipinchandra Ramanlal Gandhi and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR58
AppellantJethalal Tribhovandas Valand
RespondentVipinchandra Ramanlal Gandhi and anr.
Excerpt:
- - 1. this revision application raises a question of interpretation of section 2(3) and section 2(4) as well as section 18(1) of the bombay shops and establishments act, 1948, hereafter referred to as the act. vin, on account of this amendment, employers cannot be said to have opened their shop or a establishment within the term of section 18 of the act, even if they keep them open and render services to the customers personally because condition laid down by the definition that the service should be by or with the help of the employee of the shop, is not satisfied. 11. therefore, it is clear that prohibition against giving service to any customer or for doing any business of the establishment on a closed day is absolute and is applicable to the employer as well as the employee......such calendar or list shall be prepared at the beginning of the year but in the case of a shop or establishment in which this act becomes applicable for the first time after the beginning of a year, the first calendar or list for the remaining part of the year shall be prepared before the expiry of one month from the date of the application of this act thereto.it will also be necessary to reproduce sub-section (2) of section 18 of the act, which reads as under:it shall not be lawful for an employer to call an employee at, or for an employee to go to his shop or commercial establishment or any other place for any work in connection with the business of his shop or commercial establishment on a day on which such shop or commercial establishment remains closed.6. reading the.....
Judgment:

D.P. Desai, J.

1. This revision application raises a question of interpretation of Section 2(3) and Section 2(4) as well as Section 18(1) of the Bombay Shops and Establishments Act, 1948, hereafter referred to as the Act. For this limited purpose, facts may be stated briefly.

2. The petitioner is the partner of a hair cutting saloon and as such owner of that shop which was registered under the Act as an establishment. Its weekly holiday was notified as Tuesday. On 1-8-1967, which was Tuesday, Inspector under the Act visited the shop at about 8-30 a.m. and found that the shop was open and the petitioner and his brother who was also a partner in the same shop, were shaving beards of two customers. Therefore, a complaint was filed, against the petitioner and his brother for an offence punishable under Section 52(b) as a result of contravention of the provisions of Section 18 of the Act. After the complaint was filed the same was withdrawn against the brother of the petitioner and the case proceeded against the petitioner only.

3. The learned Magistrate held the prosecution case established and sentenced the petitioner to fine of Rs. 100/-. An appeal against this conviction and sentence was taken to the Sessions Court at Broach and the learned Sessions Judge maintained the conviction under Section 18(1) read with Section 52(b) of the Act, but reduced the sentence of fine to Rs. 50/-. Against this order, the petitioner has come in revision.

4. The only point urged by Mr. Vin appearing in this revision application was that in view of the definition of the words 'Closed' and 'Opened' as amended by Gujarat Act 11 of 1962, an establishment is to be considered closed and opened only if service to a customer is rendered by any employee of the establishment or any business in the establishment is done by the employee. It is urged that in view of the amended definition, it is open to the employer to render service personally to any customer even on closed day and therefore, if employer himself renders any service to a customer on closed day, no offence takes place. As observed earlier, this contention raises a question of interpretation of the relevant provisions of the definition Clause and Section 18 of the Act.

5. It will be necessary for this purpose to reproduce the definition of the word 'closed' as it existed prior to 1962 and also after the amendment of 1962. Under the old definition, the term 'closed' meant-'Not open for service of any customer or open for any business connected with the establishment', and the term 'Opened' meant-'opened for service of any customer.'

The amended definition of these terms reads:

'Closed' means not open for the service of any customer, or for any business of the establishment, or for work, by or with the help of any employee, of or connected with the establishment;

'Opened' means 'opened for the service of any customer, or for any business of the establishment, or for work, by or with the help of any employee, of or connected with the establishment.'

Relevant portion of Section 18(1) of the Act reads-

Every shop and commercial establishment shall remain closed on one day of the week. Except where the day is fixed under Sub-section (IB) the employer shall prepare a calendar or list of such closed days notify such calendar or list to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the shop or commercial establishment. Such calendar or list shall be prepared at the beginning of the year but in the case of a shop or establishment in which this Act becomes applicable for the first time after the beginning of a year, the first calendar or list for the remaining part of the year shall be prepared before the expiry of one month from the date of the application of this Act thereto.

It will also be necessary to reproduce Sub-section (2) of Section 18 of the Act, which reads as under:

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

6. Reading the definitions of 'Closed' and 'Opened' under the Amended Act, it is possible to analyses them as covering three purposes and they are-

(i) service of any customer; (ii) any business of the establishment; and (iii) work of or connected with the establishment. Mr. Vin submits that the phrase 'by or with the help of employee' should be read as qualifying all the three purposes mentioned above. If so read, it would necessarily follow that the word 'Closed' means not open for service of any customer by or with the help of any employee of the shop and the term 'Opened' would mean-open for service of any customer by or with the help of any employee of the shop. Therefore, in the submission of Mr. Vin, on account of this amendment, employers cannot be said to have opened their shop or a establishment within the term of Section 18 of the Act, even if they keep them open and render services to the customers personally because condition laid down by the definition that the service should be by or with the help of the employee of the shop, is not satisfied. In substance therefore, the contention is that in view of the amended definition, employers can keep their establishments open even on closed day of the week and do business personally or render service to the customer personally. The position before the amendment was not seriously disputed. As per definitions of 'Closed' and 'Opened' prior to the amendment, an employer who opened the establishment and rendered service to the customer on a closed day would incur penalty for contravention of provisions of Section 18(i) of the Act, because within the old definition, he can be said to have opened the establishment for service to customer. Therefore, the contention amounts to this; whereas prior to the amendment, there was restraint on the employers and employees rendering service to customers on closed days, the purpose of the amendment was to lift that restraint so far as employers were concerned and to continue it so far as employees, were concerned. Mr. Vin also urged that the object of the enactment was to regulate conditions of work and employment in shops and other establishments meaning thereby to regulate conditions of work and employment of employees and the amended definition is consistent with this object. Now, it would not be correct to say that the object was only to consolidate and amend the law, in order to regulate conditions of work and employment in shops and other employments. The object was also to consolidate and amend the law for certain other purposes specified under the Act. Thus provisions of Sections 39 to 42 A occurring in Chapter VIII of the Act relate to health and safety in an establishment and have no reference to an employer of employee. If we turn to Sections 10, 11 and 13 of the Act, in this connection, these other purposes become clear. The object of Section 10 is to see that no shop dealing in milk and other specified goods is opened earlier than 5 a.m. and no shop dealing in other goods is opened earlier than 7 a.m. Similarly, Section 11 provides that certain shops will be closed at 8-30 p.m. and others at 11 p.m. Section 13 provides for opening and closing hours of commercial establishments. These three sections would also apply to an employer who is running his shop by himself without employing any servant to assist him. That is to say they cover a one-man shop. Now Section 10 lays down that no shop dealing in milk, etc. shall on any day be opened earlier than 5 a.m. and that no other shop shall on any day be opened earlier than 7 a.m. Section 11 lays down that no shop other than shops dealing mainly in pan bidi cigarettes, matches and other ancillary articles, shall be kept open later than 8-30 p.m. and that the excepted shops shall not be kept open later than 11 p.m. Section 11 uses terminology to the effect that no shop other than those specified in Clause (b) 'shall on any day be closed later than 8-30 p.m. and that no shop dealing mainly in pan bidi, cigarettes, etc. shall 'on any day be closed later than 11 p. m.' These three sections also contain the words 'Opened' and 'Closed' and if the interpretation sought to be placed by Mr. Vin on these terms as defined by definition section, is to prevail, then it follows that one man shop can be opened at any time even before 5 a.m. and can be closed at any time even after 11 p.m. There is no reason why the Legislature should have treated one-man shop on a different basis than a shop which employs employees or workers so far as closing and opening hours are concerned. In fact, the owners of shops or establishment employing workers will be in disadvantageous position because their hours of work will be restricted; whereas owners doing their own work will be in more advantageous position. And there is no reason for such a discrimination. The prohibition against opening shops and establishments before specified hours and not closing them after specified hours is enacted in absolute terms. This is clear from the opening words as 'no shop' and 'no commercial establishments.

7. These provisions will show that the purpose of the Act is not only to regulate conditions of work of employees but also to regulate carrying on of trade or business by the owners themselves If the reading of the provisions of Sections 10, 11 and 13 as above is correct, then the contention of Mr. Vin would mean that the definition of the terms 'Closed' and 'Opened' will bear one meaning (namely the interpretation made by Mr. Vin) when read for the purpose of Section 18(1) of the Act and a different meaning when read for the purpose of Sections 10, 11 and 13 of the Act. This position would be untenable.

8. Now coming to the question of interpretation of the terms 'Closed' and 'Opened', the first thing to be noted is that the word 'for' precedes each of the three purposes mentioned earlier. Thus, the term 'Closed' means not opened (i) for service of any customer; (ii) for any business of the establishment; and (iii) for work of or connected with the establishment. It is fairly clear that the phrase of or connected with the establishment' at the end of this definition, has reference to the word 'work' and cannot be said to have reference to the phrase 'by or with the help of any employee'. The repetition of the word 'for' in case of each of the three purposes would indicate that the phrase 'by or with the help of any employee' is restricted to the last purpose only viz. 'for work of the establishment or for work connected with the establishment.' This interpretation also gets support from the position of the phrase 'by or with the help of any employee' in this clause. The phrase does not occur at the end of the clause but between the word 'work' and the phrase 'of or connected with the establishment'. Therefore, the definition can properly be read as providing for restraint on (i) service to any customer (ii) any business of the establishment and (iii) work of the establishment of work in connection with the establishment, by or with the help of any employee.

9. The first two contingencies viz., giving of service to any customer and business of establishment exist irrespective of the question whether the services are rendered by the employee of the establishment or the business is done by employer or employee of the establishment. The first two contingencies therefore take in both employer and employee. The last contingency which has been added by the Amending Act of 1962 seems to have been added in order to make a closed day completely effective with regard to an employee so that an employee may not go even of his free will for work of the establishment other than giving service to the customer or running the business. Section 18(2) which has been reproduced above already contained, even before the amendment, prohibition against calling an employee for doing any work connected with business of the establishment or shop on a closed day. It also prohibited the employee from going to the shop or establishment for any work in connection with its business. But the sub-section did not prohibit any work of establishment which had no direct connection with the business of the establishment. And it appears that by the amendment in question, the words 'for work, by or with the help of any employee, of or connected with the establishment' were inserted in the definition of 'Closed' and 'Opened' so that the establishment remains closed not only for the purpose of rendering service to the customer and for the purpose of doing any business but also for the purpose of taking any other work unconnected with the business so far as the employee of the establishment is concerned. By this amendment, an attempt is made to bring the definition of these terms in line with the provisions of Section 18(2). The purpose was to see that the benefit of closed day is not denied to an employee by taking work of the establishment other than rendering service or of business from him. This provision is made in order to prevent a possible exploitation of the employee and not in order to lift the restraint on doing business personally which was already imposed on the employer under the old definition.

10. If the interpretation placed by Mr. Vin on the amended definition of 'Closed' and 'Opened' is correct, then the provision of entry No. 17 of Schedule II of the Act relating to exemption of employers of commercial establishments inter alia from the provisions of Section 18(1) of the Act would become superfluous because by the very definition of the terms 'Closed' and 'Opened' the employers will be entitled to render service to the customer even on closed day and no question of exempting them from the provisions of Section 18(1) will arise.

11. Therefore, it is clear that prohibition against giving service to any customer or for doing any business of the establishment on a closed day is absolute and is applicable to the employer as well as the employee. So far as employee is concerned, he cannot go to the shop or establishment for any other work of the establishment also on a closed day. Thus, no work can be taken from the employee on a closed day even under the pretext that the work was not connected in any way with the business of the establishment. Thus, the employee cannot be called for arrangement of the establishment or for cleansing the premises, etc.

No other contention was advanced on behalf of the petitioner. In the result, the petition fails and is dismissed. Rule discharged.


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