S.L. Talati, J.
1. The petitioner was an accused person in Criminal 'Case No. 1763 of 1979 in the Court of the Judicial Magistrate, First Class, Gandhidham-Kutch. In that case complaint was filed against him, that when shop Inspector of Gandhidham Municipality, visited his cabin where he was carrying on business of Sweets and Farsan on 27-7-79, it was found that he had not exhibited a notice stating that a particular day will be a weekly holiday and further that he bad not submitted annual list of holidays and thus contravened the provisions of Section 18(1) of the Bombay Shops and Establishments Act, 1948. Ultimately, the learned Judicial Magistrate, First Class, Gandhidham-Kutch, held the accused guilty for an offence punishable under Section 18(1) of the Bombay Shops and Establishments Act, 1948 (herein after referred to as the Act) and sentenced him to pay a fine of Rs. 75/-, in default of payment of fine to suffer simple imprisonment for 8 days. That conviction came to be confirmed by the learned Sessions Judge, Bhuj-Kutch, in Criminal Revision Application No. 37 of 1980.
2. Thereafter again on 8-8-80 another complaint was filed against the accused and it was Criminal Case No. 1320 of 1980. That complaint was also, in regard to the same offence which was detected, according to the Shop Inspector on 14-5-80. This application is filed in this Court to get the conviction set aside which was recorded by the Judicial Magistrate, First Class, Gandhidham-Kutch as confirmed by the Sessions Judge, Bhuj and also for quashing the proceedings which are initiated on 8-8-80 by filing Criminal Case No. 1320 of 1980.
3. We have heard the learned Advocate Mr. A. K. Mankad for the petitioner and Mr. Akshay Mehta for the Gandhidham Municipality and learned P.P. Mr. C.K. Takwani for the State. It maybe stated that an error of law has been committed and, therefore, the conviction is required to be set aside and so also the proceedings initiated by filing another Criminal Case No. 1320 of 1980 are required to be quashed for the reasons that follow. 4. Section 4 of the Act reads as under:
4(1) Notwithstanding anything contained in this Act, the provisions of the Act mentioned in the third column of Schedule 11 shall not apply to the establishments, employees and other persons mentioned against them in the second column of the said Schedule:
Provided that the State Government may, by notification published in the Official Gazette, add to, omit or alter any of the entries of the said Schedule subject to such conditions, if any, as may be specified in such notification and on the publication of such notification, the entries in either column of the said Schedule shall be deemed to be amended accordingly.(2) Every notification issued under the proviso to Sub-section (1) shall be laid for not less than thirty days before the State Legislature as soon as possible after it is issued.
Now this section is required to be read with Entry appearing at S. No. 89 in Schedule 11, which reads as under:
S. No. Establishments, employees or Provisions of the Act.other persons. 1. 2. 3. 89. Shops dealing wholly or princi- Section 10, 11, 16 and 18 subjects topally in preparation and/or sale the following conditions, namely:-of sweets and farsan. (1) Opening and closing hours shall not be earlier than 5 A.M. and later than11 P.M. respectively. (2) No employees shall be required orallowed to commence work earlierthan 4.30. A.M. and to work laterthan 11.30 P.M. (3) the spreadover of an employee shallnot exceed fourteen hours. (4) The employees concerned are givenone day in a week as a holiday andno deduction from wages is made onaccount thereof.
5. It was tried to be argued that this case would fall in condition No. 4, and the employee concerned is given one day in a week as a holiday without deducting wages that weekly holiday is required to be published and list was required to be given. Such an argument cannot be accepted. Clearly by Section 4 and by Entry 89 provisions of the Act, namely, Sections 10, II, 16 and 18 are not to be applied at all except the conditions which are mentioned and they are four in number. Condition 4 would only require that if there is an employee kept in the establishment, that employee must be given a holiday once a week and for that holiday his wages should not be deducted. It is not the case of the petitioner that any employee was kept or that he was not given holiday once a week or that holiday was given and the wages were deducted. The case filed is that no notice is placed that the employee shall have a holiday on a particular day, that is the requirement of Section 18 which does not apply to the establishment where sale of Sweets and Farsan is to be made. Under these circumstances, it is clear that there is no breach of condition 4 mentioned in the third column of Entry No. 89 and, therefore, the conviction of the petitioner is required to be set aside and it is to be held that he cannot be prosecuted for the alleged breach of Section 18(1) of the Act.
6. The result would be that the petition is allowed and the conviction of the petitioner recorded by the learned Judicial Magistrate, F.C., Gandhidham-Kutch on 30th April 1980 and confirmed by the Learned Sessions Judge, Bhuj-Kutch on 13-1-81 are set aside. Proceedings initiated by filing a complaint dated 8-8-80 being Criminal Case No. 1320 of 1980 are hereby quashed. Fine if paid be refunded.