1. Petitioner, P. S. Srinivasa Ayyar, has been convicted under Rule 16 (1) read with Rules 16 (7) and 18 of the Madras Shops and Establishments Rules (hereinafter called the rules) and sentenced to a fine of Rs. 10, in default, simple imprisonment for two days. The petitioner is the manager of the Tanjore Permanent Bank, Ltd., at Dindigul. The charge against him was that he failed to enter the name of P. W. 2, Narayanaswami, In the register of employment as found by P. W. 1, Rama Rao, the Assistant Inspector of Labour, First Circle, Dindigul, during his inspection at 11-45 a.m. on 14 April 1964. The contention of the petitioner was that P. W. 2, Narayanaswami, was only a caretaker at that time, though he was a watchman on an earlier date and became a peon subsequently. In fact, the manager of the Tanjors Permanent Bank at Dindigul corresponded with the Inspector of Labour In vain for clarification whether a perssn employed as a watchman during the night would be exempt-ed as a caretaker.
2. The short point for consideration in this case is whether P. W. 2, Narayanaswami, is a person employed within the meaning of the words in Section 2 (12)(iii) of the Madras Shops and Establishments Act (hereinafter called the Act) and whether he would be a caretaker within the meaning of the words in Section 4(1)(b) of the Act. It is not disputed that the Tanjore Permanent Bank, Ltd., at Dindigul, is a commercial establishment within the meaning of the words of Section 2 (3) of the Act and that the relevant sections referred to above apply to them.
3. The Courts below have found that P. W. 2, Narayanaswami, was a watchman and not a caretaker on the relevant date. But P. W. 2, Narayanaswami, deposed that on the relevant date, 14 April 1964, he was a caretaker. Even P. W. 1, Rama Rao, Assistant Labour Inspector, Dindigul, deposed that he found the name of P. W. 2 entered in the register of the bank as a caretaker from January 1963 when he went and made the inspection on 14 April 1964. Thus, if one goes by the evidence of P. Ws. 1 and 2, Narayanaswami was only a caretaker and the petitioner would be entitled to claim exemption under Section 4(1)(b) of the Act.
4. Section 2 (12)(iii) runs as follows:
'person employed' means in the case of a commercial establishment other than a clerical department of a factory or an Industrial undertaking, a person wholly or principally employed in connexion with the business of the establishment and includes a peon.
Section 4 (1)(b) runs as follows:
Nothing contained in this Act shall apply to persons whose work involves travelling; and persons employed as canvassers and caretakers.
5. In the Concise Oxford Dictionary, 4th Edn. the meaning of the word 'caretaker' is given as 'person hired to take charge especially of house in owner's absence ' and the meaning of the word ' watchman' is given as ' man employed to look after empty building, etc., at night.' In Stroud's Judicial Dictionary, 3rd Eds., Vol. I, at p. 402, ' caretaker' is defined as one whose only business is to guard the premises against injury; and does not include one who may create danger, and this definition has been given even in Law Lexicon of British India by P. Ramanatha Ayyar. It is clear from the evidence in this case that P. W. 2, Narayanaswami, was employed in the bank during the relevant period only to guard the premises of the bank during night-time between 6 p.m. and 6 a.m. Hence he would clearly be a caretaker within the meaning of the word in Section 4 (1)(b) of the Act. The business hours of the bank are only during day-time. It could not be said that P. W. 2, Narayanaswami, is a person who is wholly or principally employed in connexion with the business of the bank. It is true that if he is employed to do any work during daytime as a peon, he would come within the definition of a ' person employed ' in Section 2 (12)(iii) of the Act. Hence, one should not be carried away by the mere use of the nomenclature 'watchman' to find out whether he is a person employed as a caretaker. Even if a person is called a watchman in a bank, but is used as a peon during day-time, he would be a person employed within the meaning of Section 2 (12)(iii) of the Act. But, if ho is employed only to guard the premises of a bank as in this case, he would only be a caretaker and the bank would be entitled to claim exemption tinder Section 4 (1)(b) of the Act.
6. The conviction of the petitioner cannot, therefore, be sustained. The conviction as well as the sentence of fine are, therefore, set aside and the fine amount, if collected, is ordered to be refunded to the petitioner.