1. These are two connected revision rises which have been filed against the convictions and sentences of the learned Additional First Class Magistrate, Kollegal, in C.C. Nos. 152 and 153 of 1951.
2. The facts are: The area occupied by Kollegal in Coimbatore district is served by the Mysore railway. Kollegal itself has no railway station and Maddur is the nearest railway station. Therefore, an out-agency is working 'in Kollegal for the purpose of booking goods there for being sent to Maddur railway station. This out-agency at Kollegal has been taken by Royal Motor Service, Kollegal, through one Dr. Mahadevan. But it appears that it is managed by the petitioner before us who is stated to be a brother of that Dr. Mahadevan.
3. This establishment in Kollegal wasvisited by the Assistant Inspector of Labour.Gobichettipalayam and he found that thisout-agency did not maintain a register ofwages for the persons employed in it, a register of employment in the prescribed formE or F or a notice in the prescribed form G ora register in the prescribed form H or a register of holidays and leave in the prescribedform K for persons employed under this petitioner in this out-agency. It was further foundthat this petitioner failed to exhibit thenotices containing the extracts of the MadrasShops and Establishments Act, 1947, and therules, 1948, in English and Tamil and that hefailed to maintain and produce them whendemanded by the Assistant Inspector ofLabour.
4. In addition the Labour Inspector also found that the timings of work were not in consonance with the provisions of the Madras Shops and Establishments Act and what is more one particular individual was being employed constantly exceeding the spread over periods.
5. This Inspector therefore recommended the prosecution of this petitioner under the Madras Shops and Establishments Act to the Commissioner of Labour setting out all these tacts. The Commissioner of Labour on coming to the conclusion that this was a case falling within the Madras Shops and Establishments Act and tnai there had been infractions thereof, sanctioned the prosecution of this petitioner excepting for the hours of work and the employment of that particular individual contrary to the provisions of the Madras Shops and Establishments Act.
6. The petitioner in the meanwhile has made a reference to the Traffic Manager of the Mysore Railway pointing out that he has been required by the Labour Inspector to observe the rules and regulations as required by the Madras Shops and Establishments Act and that if such regulations were to be observed in his out-agency he would not be able to discharge his functions. Therefore the Traffic Manager having only the hours of work and nothing else in his mind replied that the Madras Shops and Establishments Act did not apply in regard to the timings of work in this out-agency.
7. The plea of the accused in Court was that he thought that this out-agency formed part of the Mysore railway establishment and did not come within the ambit of the Madras Shops and Establishments Act and that therefore he did not keep the registers and perform the duties prescribed under that Act.
8. The learned Additional First Class Magistrate overruled these contentions and found the accused guilty as charged and sentenced him to a nominal fine of Rs. 10 in regard to each offence.
9. In this Court two additional points are also taken viz., in terms of Section 4(e) of the Act that this out-agency as part of the railway establishment working under the Central Government and therefore does not fall within the ambit of the Madras Shops and Establishments Act and secondly that the Commissioner 'of Labour under Section 51 of the Act is alone the person who should have decided whether the Act applied or not to this out-agency and that the Magistrate should have made a reference to the Commissioner of Labour and therefore not having done so the Magistrate was not competent to dispose of the matter himself.
10. In my opinion on the evidence on record the convictions are correct and the points taken are without substance.
11. The term 'establishment' has been defined in the Madras Shops and Establishments Act in Section 2(6) as to include a commercial establishment and a commercial establishment would certainly include a commercial out-agency of this description. The railway department cannot perform all the functions involved in running the railway. They have got to establish agencies for definite purposes. In places where there are no railway stations and goods have got to be collected and sent to the goods-shed the railway department instead of leaving it to private contractors employ out-agencies to canalise the transporting of all these goods to the railway station. These agencies are subject to rules and regulations so that the public are not victimized in regard to the rates charged etc. by them. This would not make the out-agency any more a part of the establishment of the Central Government than tor instance the book-status of Messrs. Higginbothams or various catering establishments which are functioning in the railway stations and which are also governed by the uniform rules framed by the railway department and which prescribe the functions they have got to perform and the way in which the public have got to be served. There fore there is no point in stating that this is a commercial establishment not falling within the definition of Section 2 (6) of the Madras Shops and Establishments Act. In arriving at this conclusion we need not be unduly perturbed by the information given by the Traffic Manager of the Railways, because I have already pointed out that this letter related to working hours and in particular to the spread over of the periods of work of a particular individual to which this Assistant Inspector of Labour seems to have taken exception. Therefore the lower Court was right in holding that this out-agency working in Kollegal and not forming part of the railway establishment is an establishment within the meaning of Section 2(6) of the Act.
12. Then coming to the point that this matter ought to have been decided by the Labour Commissioner, the Labour Commissioner has as a matter of fact decided it because on a reference made to him for prosecuting this individual all these facts have been set out and the Labour Commissioner has been asked for sanction for prosecution and the Labour Commissioner after going through the records has accorded sanction thereby deciding that the provisions of the yarious sections of the Act for the contravention of which that individual was about to be charged were provisions which were applicable to this out agency. Therefore, this point is without any substance.
13. Besides the Magistrate need not refer to the Labour Commissioner before deciding whether this case attracted the provisions of the Madras Shops and Establishments Act or not. Section 51 of the Act is a miscellaneous departmental provision which states that when there is a dispute about the application of one or more of the provisions of the Act to_ a particular establishment or particular individual the authority who will have to decide that matter will be Labour Commissioner and that his decision thereon shall be final. It only means that the decision is final in so far as appeals in the department are concerned and not that it takes away the powers of the Court to decide whether in the particular circumstances of the case the Madras Shops and Establishments Act applied or not. I am unable to accept the contention that the decision of the Commissioner of Labour is a prerequisite for a Magistrate to find out whether the offence for which the accused has been charged before him has been committed by him or not. This miscellaneous provision in Section 51 of the Act is merely for the removal of difficulties in deciding certain questions in so far as the department is concerned and would not stand in the way of the Magistrate at all.
14. Therefore, in these circumstances the convictions of this accused for which he has no other defence excepting the two points which have been set out above, are correct and the sentences which the Magistrate himself describes as lenient deserve no interference. Both the convictions and sentences are confirmed and these criminal revision cases are dismissed.
15. If the petitioner feels aggrieved thatthe application of the Madras Shops andEstablishments Act will make it impossible towork these out-agencies and can make out anarguable case the remedy is in his own hands.The State Government may be moved and theState Government if so convinced can exemptthese out-agencies from the operation of thisAct.