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Shantilal Popatlal Kotak Vs. Ramniklal Mohanlal Ashra and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR685
AppellantShantilal Popatlal Kotak
RespondentRamniklal Mohanlal Ashra and anr.
Cases ReferredBombay Shops and Establishments Act. Kailas Dhanjibhai v. The State of Bombay.
Excerpt:
- - 2. following aspects relating to the sarees printing business that may be tarried on upon the premises through paid workers must be clearly grasped and kept before the mental screen for resolving the problem: this argument must fail in view of the holding of the supreme court in kalidas dhanjibhai v......of the shops act are applicable to the premises where respondent no. 1 is carrying on his cloth printing activity. it appears that respondent no. 1 employs 9 to 10 employees for printing sarees on the premises in question. it is not clear as to whether the sarees which are printed on the premises are printed on the cloth belonging to the customers or whether the same are printed on cloth belonging to respondent no. 1. that a number of employees are employed and the work of printing sarees is earned on is not in dispute. according to the prosecution, once it is shown that this activity is carried on upon the premises, the shops act would be applicable. on the other hand, the case of the defence is that the activity carried on in the premises does not attract the definition of.....
Judgment:

M.P. Thakkar, J.

1. This appeal is directed against an order of acquittal passed by the learned Judicial Magistrate, First Class, Rajkot in Criminal Case No. 1084 of 1967. Respondent No. 1 was prosecuted under Section 11(l)(a) and Section 52 of the Bombay Shops and Establishment Act, 1948, hereinafter referred to as 'the Shops Act', on the charge of having kept his shop open beyond 8-30 p.m. The fact that the shop was kept open after 8-30 p.m. is not seriously in dispute. What is in dispute is whether the provisions of the Shops Act are applicable to the premises where respondent No. 1 is carrying on his cloth printing activity. It appears that respondent No. 1 employs 9 to 10 employees for printing sarees on the premises in question. It is not clear as to whether the sarees which are printed on the premises are printed on the cloth belonging to the customers or whether the same are printed on cloth belonging to respondent No. 1. That a number of employees are employed and the work of printing sarees is earned on is not in dispute. According to the prosecution, once it is shown that this activity is carried on upon the premises, the Shops Act would be applicable. On the other hand, the case of the defence is that the activity carried on in the premises does not attract the definition of 'shop' given in the Shops Act and that the premises cannot be called 'shop'. The trial Court has taken the view that it is not a shop within the meaning of the Shops Act and has acquitted respondent No. 1. Thereupon the petitioner, the Shops and Establishment Inspector of Rajkot Nagarpalika, has approached this Court on obtaining leave to appeal under Section 417(3) of the Code of Criminal Procedure.

2. Following aspects relating to the sarees printing business that may be tarried on upon the premises through paid workers must be clearly grasped and kept before the mental screen for resolving the problem:

(1) Customers may supply their own cloth and the contract may take the form of job work on the part of the owner of the saree printing business (hereafter referred to as the 'owner') requiring him to get the cloth printed with the design specified by the customer at his (owner's) premises through his work men. In this type of contract the cloth on which printing and processing is done belongs to the customer and the effort, energy and the skill of the worker engaged and paid by the owner goes into the finished product which is processed and prepared on the premises in question. This may be referred to as Type A job.

(2) Customers might merely specify the design and the cloth and direct the owner to apply the goods duly processed on cloth purchased by him (owner) and printed at his (owner's) factory. In this type of contract (he cloth which is subjected to printing and processing belongs to the owner who gets it processed by bus paid workers on the premises concerned. This may be referred to as Type B job.

(3) Customers, who consist of whole-sale or retail merchants, may place orders with the owner of the saree printing business either by post, or through a broker or salesman, or by placing an order by personal negotiations with the owner.

Two questions arise before the Court in this background. The first is whether the premises where the activity of printing sarees is carried on (with the help of employees) in compliance with the orders placed by customers would attract the definition of 'shop' within the meaning of Section 2(27) of the Shops Act in the case of Type B jobs where cloth on which the sarees are printed belongs to the employer. The second question which arises is, whether in relation to Type A job where an activity is carried on with respect to the cloth belonging to the customers, the premises where it is carried on would fall within the definition of 'shop' within the meaning of Section 2(27) of the Shops Act. The learned Counsel for the appellant has contended that even if the cloth belongs to the employer, the premises where such an activity is carried on would attract the definition of a shop. This argument must fail in view of the holding of the Supreme Court in Kalidas Dhanjibhai v. The State of Bombay : 1955CriLJ193 . Before examining the facts of that case, the definition of 'shop' as incorporated in Section 2(27) of the Shops Act may be quoted:

'Shop' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a store room, godown, warehouse or work place, whether in the same premises or otherwise, mainly used in connection with such trade or business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment;

In the case before the Supreme Court the appellant was the owner of a small establishment called 'The Honesty Engineering Works' situated in Ahmedabad. He employed 3 workers. He used to visit certain local mills, collect orders from them for spare parts, manufacture the parts so ordered at his workshop, deliver them to the mills when ready, and collect the money therefore. No buying or selling was done on the premises. From facts which appear on record it seems that the raw material with which the spare parts were manufactured used to be purchased by the employer from the market with his own funds. On these facts, the Supreme Court came to the conclusion that the premises where such an activity is carried on cannot be called a shop as defined in Section 2(27) of the Shops Act. In the first place what was being done was merely manufacture of the spare parts and no purchasing or selling activity took place on the premises in question. Such being the case, the first part of the definition of shop 'premises where goods are sped either by retail or wholesale' would not be attracted. The second part of the definition 'where services are rendered to customers' will not also apply because no services are rendered in the premises itself. Such being the case, the contention of the State that the premises where such activity was carried on attracted the definition of 'shop' was rejected. The principle laid down by the Supreme Court in the aforesaid case when applied to the facts of the present case in relation to Type B jobs will lead to the same conclusion for what is being done at the premises is printing work with the aid of the employees. No goods are purchased or sold. No trading activity is carried on there. Therefore, the first part of the definition cannot apply. In order to succeed, the propounder of the view that the premises attract the definition of 'shop' will have to fall back on the second part of the definition 'where services are rendered to customers'. Now if the cloth belonging to the employer himself is being printed with the help of employees, it cannot be said that any services are rendered to customers. It makes no difference even if the printing is done in accordance with the design supplied by the merchants who may have entered into a transaction with the employer. The contention of the learned Counsel for the appellant, therefore, cannot be accepted.

3. With regard to the second question as to whether the premises where such an activity (Type A job) is carried on (if the printing work is done according to the design supplied by the customers on the cloth supplied by the customers) would attract the definition of 'shop', the matter requires to be given anxious consideration. The ratio of Kalidas Dhcmjibhai's case will not apply because what the employer is doing is not his own work. What he is doing is to cater to his customers and render the service of printing with the help of the employees. When the employer subjects the cloth belonging to himself to the printing process, the finished product is his own. When he subjects the cloth supplied by the customer to the printing process, the finished product is the product of the customer which has undergone processing at the premises. That is to say, into the imprinted cloth belonging to the customer has gone in the skill, the labour, the artistic talent, and the ability of the employees engaged by the employer. The question which may then be legitimately posed is: 'to whom have the services been rendered?' And the answer, to my mind, is unequivocal. These services have been rendered to the customers albeit indirectly through the medium of the employer. The beneficiary of the service, that is to say, the labour, skill and the artistic talent which has gone into the product, is the customer for it has been employed on the unprinted cloth belonging to the customer. The services have, therefore, been obviously rendered for the benefit of the customer and to the customer. The argument of the learned Counsel for respondent No. 2 that a service can be rendered to the customer only if he himself personally comes to the premises has merely to be advanced to be rejected. Unless it is the case of rendering a personal service, the personal presence of the customer is not at all necessary. If services are rendered for the benefit of the customer, as per the order placed by the customer, it is futile to contend that the services are not rendered to him merely because he himself has not personally come to the shop to place an order but has placed it by post or through a salesman. I am fortified in the view that I take by Homi J. Bhajiwala v. The State 62 B.L.R. 1021 wherein a similar question raised its head before the Bombay High Court. Says V.J. Desai J. at page 1022 as follows:

In order to satisfy the requirements of the definition it is not necessary that the customers must themselves go to the premises. Services rendered to customers are services as are required by or called for by the customers. If the services required or called for are in respect of articles belonging to the customers the rendering of service to the customers will consist of accepting the articles for doing such work as is required in respect of them and delivering back the articles after executing the work as desired by the customers. If there is a defined premises where the articles are received for and on behalf of the customers and are renamed to them after executing the required work that is a premises where services are rendered to the customers irrespective of whether the customers themselves have brought the articles to the premises or have sent them with their agents or servants. The argument, therefore, of Mr. Purohit that the premises of the petitioner are not premises where services are reordered to the customers because the car owners who are the customers do not themselves bring the car parts for electroplating to the premises of the petitioner is not tenable.

Mr. Purohit has next argued that the premises of the petitioner is not a premises where service is rendered to customers because the articles sent by the customers are not received inside the premises or delivered back after executing the work anywhere inside the premises According to Mr. Purohit the car-parts are received just outside the premises and are also returned at that place. All that is done inside the premises is the process of electroplating. In these circumstances says Mr. Purohit that the establishment of the petitioner is a small laboratory or factory for carrying out the work of electroplating and not a shop within the meaning of the Bombay Shops and Establishments Act. Kailas Dhanjibhai v. The State of Bombay.

I do not think that there is any substance in this contention also. It may be as Mr. Purohit says that the car-parts are delivered not at a counter inside the premises but a few feet outside the premises. It may be that the car-parts are detached from the cars outside the shop and it may also be that after they are electroplated they are fitted to the cars outside the shop. But the premises of the petitioner is the place where the business of rendering services to customers is conducted. It is there that the orders and instructions of the customers are received and it is there that the goods are delivered back to the customers after the work as required by them is executed. Moreover, the works-place of the petitioner, which he calls the factory or laboratory for carrying out the electroplating process, which is solely used in connection with the business, which is conducted on the premises, is also a shop within the inclusive part of the definition of a 'shop' under Section 2(27) of the Bombay Shops and Establishments Act.

In my opinion, therefore, if it is established by the prosecution that the work of printing sarees is carried on upon the premises in question on the cloth belonging to the customers, the premises would fall within the definition of a 'shop'. In the present case, however, unfortunately, there is no evidence Lo this effect. The order of acquittal, therefore, cannot be disturbed though the view taken by the learned Magistrate that the Shops and Establishments Act would not be applicable even to an activity of printing sarees on the cloth supplied by the customers (i.e. to an A Type job) is erroneous. The acquittal must therefore be sustained though on different grounds.

The appeal is dismissed.


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