1. These are appeals preferred by the learned Public Prosecutor against the acquittals arising from C.C. Nos. 2390 to 2393 of 1957, on the file of the Sub-Magistrate, Tanjore.
2. The established facts are: The accused Shanmugham Pillai owns two premises bearing door Nos. 2308 and 2310 in Gandhiji Road, Karunthattankudi, Tanjore town. In door No. 2308 he has his shop where the accused sells cigars. Door No. 2310 is the workplace where cigars are rolled. The Assistant Inspector of Labour, First Circle, Tanjore, has chargesheeted this accused under the Madras Shops and Establishments Act XXXVI of 1947, in that with respect to the employees working in the workplace, premises No. 2310, the accused did not observe certain requirements of the aforesaid Act. The learned sub-magistrate upheld the contention of the accused that premises No. 2310 is not a shop and that therefore the prosecution under the Act is Incompetent. Hence these appeals.
3. The terms 'shop,' 'factory,' 'workplace,' 'workshop,' and 'Industrial establishment' have how to be analysed.
4. The term 'shop' under the Madras Shops and Establishments Act has been defined in Section 2, C1. (16), as follows :
Shop means any premises where any trade or business is carried on or where services are rendered to customers and include offices, store-rooms, godowns and warehouses, whether in the same premises or otherwise, used in connexion with such business but does not include a restaurant, eating house or commercial establishment.
In contrast to this definition, the Bombay Shops and Establishments Act, 1948, defines 'shop' as follows:
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 workplace, whether in the same premises or otherwise, used in connexion 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 Madras Shops and Establishments Act, a separate chapter is devoted to shops. The definition of 'shop' given in Madras Act is slightly different from the definition given under Section 2(d) of the Weekly Holidays Act, 1942. The definition adopted here makes no distinction between shops carrying retail trade or business and those carrying on wholesale business or trade, while in the Weekly Holidays Act, 1942, shops engaged in retail trade only were made to come under its definition. The words 'trade' and 'business' have not been defined. Trade means mechanical or mercantile employment for profit, as distinguished from a profession carried on as a means of livelihood. The word 'business' Indicates buying, selling (mainly in commodities or goods) and other mechanical avocation for profit. Any officer, doctor, or lawyer carrying on his respective profession cannot be said to engage in trade or business. The Act is not applicable to such persons. Where a shop selling goods to the public has a store-room, warehouse, or godown attached to the firm, but not necessarily in the same premises, then the shop and its annexe together form one single establishment within the meaning of the Madras Act. Premises where auction sales are held are also shops. Certain shops, like cycle shops, doing services to customers for charges, i.e., lending for hire, inflating air in the tubes, etc., petrol bunks catering to cars and serving their needs at the premises, barber's and hairdresser's saloons doing service and charging customers also come under the definition of shops. Washing laundries are also shops.
5. 'Workplace' means premises including the precincts thereof (not being a factory or workshop), wherein is carried on any industrial, manufacturing or trade process at which not less than five persons are employed for wages or any other remueration. 'Workshop' means any premises including the precincts thereof (not being a factory) wherein an article or part of an article is made, repaired, altered, ornamented, finished or otherwise adapted for use on a commercial basis and not less than five persons are employed for that purpose for wages or any other remuneration. The term 'workshop' has been defined in Section 2(d) of the Employment of Children Act, XXXVI of 1938, as meaning any premises (including precincts thereof) wherein any industrial process is carried. Under the schedule to that Act, an industrial undertaking engaged in bidi-making is declared to be a workshop. In Section 2(ii) of the Payment of Wages Act. IV of 1936, an industrial establishment is defined as meaning a workshop or other establishment in which articles are produced, adapted, or manufactured, with a view to their use, transport or sale.
6. In other words, a 'shop' under the Madras Act unlike the term in the Bombay Act (Borkar. The Bombay Shops and Establishments Act, 1948, p. 24; D.G. Khandekar, ditto, p. 10) covers only the premises where goods are sold and does not include workshops used in connexion with such trade or business.
7. This definition of 'shop' in the Madras Act is in accordance with the accepted meaning of the word 'shop' in the lexicons and law lexicons, extracts from which are produced below:
Dictionary meaning of the ward 'shop' :
(1) From Murray: New English Dictionary) A building or room set apart for the sale of merchandise. To keep shop: to exercise the calling of a shopkeeper ; also occas. to take charge of a shop in the shopkeeper's absence. Shop: an exclamation used to summon an attendant or shopkeeper.
From Funk and Wagnalls (New Standard Dictionary of English Language, U.S.A.): (1) A fixed place or building for the regular sale of commodities at retail; a store, as, a dry goods shop; a butcher's shop.
(2) A room or building for making or repairing any article, or the carrying on any artisan craft; sometimes including both sale and manufacture; as, a blacksmith's shop ; car-shops.
(3) From Ballentine (Law Dictionary, U.S.A.): A place where goods are sold by retail. Strictly, a store is a place where goods are stored or deposited, but in this country shops are frequently called ' stores.' See Commonwealth v. Annis 81 Mass. (15 Gray) 197.
(4) From Strand's (Judicial Dictionary, 3rd Ed.): The word 'shop' implies a place where a retail trade is carried on ; Dennis v. Hutchinson (1922) 1 K.B. 693; a blacksmith's shop is rather a warehouse than a shop R. v. Chapman 1 J.P. 132, so of a carpenter's shop (per Alderson B.R. v. Sanders, 9 C. and P. 79). A blacksmith's shop is not a ' shop ' within Section 15(1) of the Shops Act, 1934-see now Shops Act, 1950 (14 Geo. 6, C. 28), Section 74 [Golder v. Thomas Johnston's (Bakers)] 1950 S.L.T. 50.
In order to constitute a shop, there must be some structure of a more or less permanent character ' [per Mellor, J. Hooper v. Kenshole 2 Q.B.D. 127; see also Summers v. Roberts 1944 K.B. 106; it must be ' something more than a mere place for sale; it imports a place for storing also, where the commodities admit of storing' [per Mellor, J., Pope v. Whalley 34L.J.M.C. 80; see also Llandaff Co. v. Lyndon 30 L.J.M. 0. 105; Fearon 7. Mitchell (L.R. 7 Q.B. 690), McHole v. Davies 1 Q.B.D. 59. These cases were on the phrase ' own shop ' as used In the exception to Section 13, Markets and Fairs Clauses Act, 1847 (10 and 11 Viet. C. 14), and they are here referred to thereon; but they seem of general application. A vessel moored in a canal is not a ' shop' within the exception [Wiltshire v. Baker 31 L.J.M.C. 10, n]; but a wooden shed affixed to a house and supported on wooden posts is within It [Ashworth v. Heyworth L.R. 4 Q.B. 316], see also Wiltshire v. Willett 31 L.J.M.C. 8; a like exception as to a person's ' own shop' within 1,000 yards of Southwark Borough Waket is contained in Southwark Market Act, 1756 (30 Geo. 2 Ch. 31), Section 10, on which Neville, J., said: 'a warehouse which is used to store goods for the purpose of immediate sale may very well be a shop '; see Haynes v. Ford (1911) 2 Ch. 237. See further Market Overt. If a, photographer takes a private house on the ground floor of which he displays and sells photographs, albums, or such like things, he converts the house into a shop, even though he makes no structural alteration in the building [Wilkinson v. Rogers 2 D.G.J. and S. 62 see Convert],
'A tavern would not come within the definition of' shop' in an exception from a covenant requiring a property generally to be used for private houses [per Huddleston, B.] Coombs v. Coock, Cab. & El. 75] ; see further Hall v. Box (18 W.E. 820): Savoy Hotel Co. v. London County Council (1900) 1 Q.B. 665, Inf.
8. In a covenant in a conveyance of land, prohibiting the erection of ' any beer house or shop or any hotel of less annual value than ' so much, ' shop ' is to be read as Beer-shop [Formby v. Barker (1903) 2 Ch. 539]. So, Semble; ' shop ' in Section 10(1), London Building Act, (1905) 5 Edw. 7, C. ccix), includes a public house; see London County Council v. Cannon Brewery Co., (1911) 1 K.B. 235], cited Dwelling house. See now London Building Acts (Amendment) Act, 1939 (2 and 3 Geo. 6 c. xcvii, Section 35.
9. Conversely, although licensed premises ' might, for some purposes. in strictness be galled a 'shop', because goods in the shape of beer, spirits, etc., are sold therein by retail, it is not, necessarily, a ' shop' within the House Tax Acts' [per Lord Brampton Grant v. Langston 69 L.J.P.C. 73. also cited House).
10. A market stall is not a 'shop' within Section 30, Municipal Corporations (Ireland) Act, 1840, 3 and 4 Vict. C. 108 Lovell v. Callaghan (1894) 2 I.R. 346.
11. There is no law in Scotland-as there certainly is none in England-whereby, on a lease of a ' shop, ' there is an inherent prohibition against the use of it occasionally for the sale of goods by public auction [Keith v. Reid L.R. 2 Sc. and D. App. 39] Cp. Graham v. Shiels, 8 Sc. L.T. 368.
Shop for the sale of any goods or commodities other than foreign wine' [Section 3, Refreshment Houses Act, 1860 [23 and 24 Vict. C. 27] includes the premises of a brewer who has a spirit dealer's retail licence or (probably; who has a brewer's licence to sell beer wholesale [R. v. Bishop 50 J.P. 167]:
Pawnbrokers Act, 1872 (35 and 36 Vict. c. 93), Section 5, ' shop' includes dwelling-house and warehouse, or other place of business, or place where business is transacted; see further Pawn.
Pharmacy and Medicines Act, 1941 (4 and 5 Geo. 6 c. 42) Section 17(1) and Shops Act (1912, 2 and 3 Geo. 5 c. 3), Section 19(1)-see now Shops Act, 1950 (14 Geo. 6 c. 28), Section 74-held not include a stall, consisting of a board on trestles In the uncovered part of a city market [Summers v. Roberts 1914 K.B. 106].
Shop Hours Act, 1892 (55 and 56 Vict. c. 62), Section 9. ' Shop ' means retail and wholesale shops, markets, stalls and warehouses, in which assistants are employed for hire; and includes licensed public houses and refreshment houses of any kinds.' Within that definition, a newspaper stall may, for some purposes, be a ' shop ' [Smith v. Kyle 71 L.J.K.B. 16]; and an hotel, even of such a superior character as the Savoy Hotel, London, is a 'public house' [Savoy Hotel Co. v. London County Council (1900) 1 Q.B. 665; Cp. Coombs v. Cook, sup.)]. ' In or about a shop' (S. 3 ibid.) means in or about a shop or its business; therefore, it is an offence against this section to employ a young person more than 74 hours a week, whether in a shop or about its business [Collmen v. Roberts-(1896) 1 Q.B. 457].
Shops (Sunday Trading Restriction) Act, 1936 (26 Geo. 5 and 1 Edw. 8 c. 53) does not include a warehouse where ice-cream is kept, or a tricycle from which it is retailed [Eldorado Ice-cream Co. v. Clark (1938) 1 K.B. 715]. Cp. now Shops Act, 1950 14 Geo. 6 Ch. 28, Sections 22, 23.
' Shop' (S. 3, Malicious Damage Act, 1861, 24 and 25 Vict. C. 97) is not necessarily a completed building [R. v. Manning L.R. 1 C.C.R. 338, cited Building].
' Aerated water shop.' See Aerated.
12. Milk supplied from an automatic machine placed outside the door of a shop and fed from a reserve within when the shop was closed was held to be sold from a ' shop ' within the meaning of Section 4(1), Shops Act, 1912 (2 and 3 Geo. 5 c. 3); see Willesden Urban Council v. Morgan (1915) I K.B. 349. See now Shops Act, 1950 (14 Geo. 6 c. 28), Section 1(l). But a stall where games of mixed chance and skill are played on payment of a fee for prize of chocolates is not a shop within Section 19(1) Shops Act, 1912, sup. see Dennis v. Hutchinson (1922) 1 K.B. 693. Neither is an hotel a shop within this section ; see Gordon Hotels Co. v. London County Council (1916) 2 K.B. 27, citd Shop assistant but in this section the word ' shop ' is not used only in its popular and recognized meaning, and would include, e.g., a coal merchant's branch office where no coal is kept but where orders are taken and the person taking the orders is a shop assistant: See Wallace v. Dixon (1917) 2 Ir. R. 236. See now Shops Act, 1950 (14 Geo. 6 C. 28), Section 74. (16 'Shop' in Section 21 Bolton Improvement Act, 1865 (28 and 29 Vict. c. xii); see Pike v. Jones, 27 Cox, C.C. 370X17) (Tenancy of Shops (Scotland) Act, 1949 (12, 13 and 14 Geo. 6 c. 25); Section 3(2). A garage is a shop [Thorn v. British Transport Commission 68 Ch. Ct. Rep. 290)].
13. Leasehold Property (and Temporary Provisions) Act, 1951 (14 and 15 Geo. 6 Section 3, 8. 20(1). Premises are not a 'shop' if the business carried on is not' wholly or mainly for the purposes of a retail trade or business'; a business in which only a small percent is retail business is not a shop within the section Lert elemy v. Neale (1952) 1 T.L.R. 458. Premises where a builder and decorator's business is carried on are not a shop ' (M. and F. Fra-weley v. Ve-ri-Best Manufacturing Co. (1953) 1 W.L.R. 165. See also Warwick v. Spencer 1 C.L.C. 5504. Clothing cleaner and dyers are not a shop. See Wilson's The Shops Act, 1933-1938, 3rd Edn. 1947, at pp. 58 and 59 wherein definitions of shop are fully set out and Stones Justices Manual, 88th Edn. 1956) pp. 2221 to 2223, 2231, 2238, 2240, 2254). The Law Lexicon of British India by Ramanatha Iyer (M.L.J. publication) at p. 1192:
The word ' shop' in its ordinary meaning denotes a building which is primarily used for buying and selling goods [(69 P.R. 1955-311.C. 191)]. [See also 15 Bom. 530.]
The word ' shop' denotes a building primarily used for the retail sale of goods. Where a building was mainly used as a residence, the mere fact that a part of it is used as a tailor's workshop does not convert the whole of it into a shop. [731.C. 454-A.I.R. 1923 Lah. 209].
The word 'shop' in Section 5 of the Punjab Preemption Act is primarily a place where goods are bought and sold and cannot be extended to business premises in the general sense of the words. Consequently the house where a carpenter lives does not become shop merely because he also works in that place [100 I.C. 910: A.I.R. 1927 Lah. 328].
'Shop' includes dwelling house and warehouse or other place of business, or place where business is transacted. [Bur. Act IV of 1899 of the Rangoon Police, Section 5, Clause (3)].
To sum up : Prima facie, a shop is a place where goods are sold by retail and stored for sale or in its primary significance shop clearly means a place where articles of commerce are dealt in.
14. Bearing these principles in mind, if we examine the facts of this case, there cannot be the slightest doubt, agreeing with the reasons of the learned sub-magistrate, that the premises in question constitute an industrial establishment in which articles are produced with a view to their use, transport or sale as defined under the Payment of Wages Act, 1936, and that premises No. 2310 is not a shop within the meaning of Section 2(16) of the Madras Shops and Establishments Act and that these prosecutions were wholly incompetent.
15. These appeals are dismissed.