1951 JTR(SC) 44
1951 AIR(SC) 315 ; 1951 AllLJ 605 ; 1951 CrLJ 1237 ; 1952 CrLJ 1237 ; 1951 3 FJR 149 ; 1951 2 MLJ 139 ; 1951 SCJ 475 ; 1951 SCR 671 ; 1951 KLT(Online)(SC) 805 ; 1951 KLT(Online) 805 ; 1951 KHC 258
SUPREME COURT OF INDIA
M.H. Kania, CJI., Saiyid Fazal Ali, Mehr Chand Mahajan, N. Chandrasekhara Aiyar, Vivian Bose, JJ.
Manohar Lal – Appellant
Versus
The State – Respondent
Criminal Appeal No. 11 of 1950
Decided On : 23-05-1951
Act
Referred
:CONSTITUTION OF INDIA : Sch.7 List.3 Item.24
GOVERNMENT OF INDIA ACT : Sch.7 List.3 Item.27, Sch.7 List.2 Item.27
PUNJAB TRADE EMPLOYEES ACT : S.7(1), S.7(2)(a)
Schedule 7-List II, Entry 26.
Section 7 sub-So (1) of the Punjab Trade Employees Act, 1940 as amended in 1943, provided that "save as otherwise provided by this Act, every shop shall remain closed on a close day." Sub-S. (2) (i) stated that "the choice of close day shall rest with the owner or occupier of a shop ... and shall be intimated to the prescribed authority." Clauses (i) and (j) of S. 2-A provided that nothing in the Act shall apply to persons employed in a managerial capacity, and the members of the family of the employer. The appellant owned a shop and on a close day the appellants son sold an article from the shop and the appellant was convicted under S. 16 of the Act. It was contended on his behalf that S. 7 of the Act was ultra vires as it did not fall under any of the items in either the Provincial or the Concurrent Legislative List of the Government of India Act, 1935, and that, in any event as he did not employ any labour and was also the manager of the shop he cannot be convicted in view of the provisions of clauses (i) and (j) of S. 2-A of the Act.
Held: (i) that the Provincial Government could under item No. 27 in List II regulate the hours, place, date and manner of sale of any commodity and S. 7 of the Act was not ultra vires; the matter could also be brought under item 27 in List III "welfare of labour; conditions of labour."
(ii) clause (j) of S. 2-A did not protect the appellant because the conviction was not for the sale by the son but for the appellant having kept the shop open on a close day;
(iii) the appellant was not entitled to be exempted under cl. (i) of S. 2-A even though he was himself the manager of the shop, because his capacity and liability as an owner must be kept distinct from that of a manager for the purposes of the Act.
Punjab Trade Employees Act, 1940, Ss. 2-A (i) and (j), 7(1), 16-Scope-Shopkeeper without employees-Sale by son on close day-Liability of shopkeeper-Government of India Act (1935), Sch. VII, List, n, item 27, and List III, item 27-Constitution of India, Sch. VII, List, II item 26 and List III, items 24 and 33.
Section 7 sub-So (1) of the Punjab Trade Employees Act, 1940 as amended in 1943, provided that "save as otherwise provided by this Act, every shop shall remain closed on a close day." Sub-S. (2) (i) stated that "the choice of close day shall rest with the owner or occupier of a shop ... and shall be intimated to the prescribed authority." Clauses (i) and (j) of S. 2-A provided that nothing in the Act shall apply to persons employed in a managerial capacity, and the members of the family of the employer. The appellant owned a shop and on a close day the appellants son sold an article from the shop and the appellant was convicted under S. 16 of the Act. It was contended on his behalf that S. 7 of the Act was ultra vires as it did not fall under any of the items in either the Provincial or the Concurrent Legislative List of the Government of India Act, 1935, and that, in any event as he did not employ any labour and was also the manager of the shop he cannot be convicted in view of the provisions of clauses (i) and (j) of S. 2-A of the Act.
Held: (i) that the Provincial Government could under item No. 27 in List II regulate the hours, place, date and manner of sale of any commodity and S. 7 of the Act was not ultra vires; the matter could also be brought under item 27 in List III "welfare of labour; conditions of labour."
(ii) clause (j) of S. 2-A did not protect the appellant because the conviction was not for the sale by the son but for the appellant having kept the shop open on a close day;
(iii) the appellant was not entitled to be exempted under cl. (i) of S. 2-A even though he was himself the manager of the shop, because his capacity and liability as an owner must be kept distinct from that of a manager for the purposes of the Act.
Punjab Trade Employees Act, 1940, Ss. 2-A (i) and (j), 7(1), 16-Scope-Shopkeeper without employees-Sale by son on close day-Liability of shopkeeper-Government of India Act (1935), Sch. VII, List, n, item 27, and List III, item 27-Constitution of India, Sch. VII, List, II item 26 and List III, items 24 and 33.
For the Appellant :Kundan Lal Arora Advocate, Vidya Sagar, Agent.
For the Respondent:S.N. Chopra, Advocate, P.A. Mehta, Agent.
Judgment
Bose J.- This is a criminal appeal against a conviction under S. 16, Punjab Trade Employees Act, 1940 as amended in 1943 read with S. 7 (1)
2. The appellant is a shopkeeper who owns & runs a shop in the Cantonment Area of Ferozepore. He has no "employees" within the meaning of the Act but is assisted by his son in running the shop. The shop is divided into two sections. In one, artiCles of haberdashery are sold: in the other, artiCles of stationery.
3. S. 7 (1) of the Act as amended requires that -"Save is otherwise provided by this Act, every shop. . . . shall remain Closed on a Close day." Sub--s. 2 (i) states that- "The choice of a Close day shall rest with the owner or occupier of a shop.. . . . & shall be intimated to the prescribed authority within etc."
4. The Appellant made the following choice. He elected to Close the haberdashery section on Mondays & the stationery section on Saturdays & gave the necessary intimation to the prescribed authority to that effect.
5. On Monday, the 17-5-1948, the appellant s son sold a tin of boot polish to a customer from the haberdashery section of the shop. The appellant was present in person it the time of the sale. Monday was a Close day for the haberdashery section & so the appellant was prosecuted under S. 16 read with S. 7. The trying Magistrate held that in selling the article of haberdashery on a Close day & in not observing Monday as a Close day the appellant had infringed the provisions of S. 7 (1) of the Act. He accordingly convicted him, & imposed a fine of Rs. 20. A revision application to the High Court failed. The High Court held that as the appellant had failed to keep his shop closed one day in the week, his conviction was proper. A certificate for leave to appeal to this Court, on the ground that a sub-stantial question of law relating to the Govt. of India Act, 1935 was involved, was granted & that is how we come to be seized of the matter.
6. The learned counsel for the appellant contended that S. 7 of the Act is ultra vires in that it does not fall under any of the items in either the Provincial or the Concurrent Legislative Lists in the Govt. of India Act, 1935. In our opinion the matter can come either under item No. 27 in List II or Item No. 27 in List III.
7. Item No. 27 in List it covers "trade & commerce within the Province." In our opinion, a Provincial Govt. could, under that entry, regulate the hours, place, date & manner of sale of any particular commodity or commodities. It could, for example, state that the sale of explosives or other dangerous Sub-stances should only be in selected areas, it specified times or on specified days when extra precautions for the general safety of the public & those directly concerned could be arranged for. That would appear to be obvious. In the same way, it could, if it so pleased, say that there shall be no sales on a particular day, say a Sunday or a Friday, or on days of religious festivals & so forth. Instead of doing that, it has chosen to regulate the internal trade of the Province 316 in this manner which is only one of the various ways in which it could have acted.
8. The matter can also be brought under Item 27 in List III: "Welfare of labour; conditions of labour." The impugned section is a general one & applies to all kinds of shops; that is to say, to those in which labour is employed as well as to those which are run by the owners & their families. The Act in which the section occurs is directed at regulating the hours of employment of persons who are employed in the business of shops or commercial establishments. Therefore, in so far as S. 7 covers establishments where labour is employed, it is undoubtedly intra vires. But it was argued that the section can have no application to shops which an owner runs with or without the assistance of his family. Reliance for this was placed on S. 2 (A) (i) & (j) which is as follows: "2A. Nothing in this Act shall apply to - * * * * * (i)persons employed in managerial capacity. . . . . & (j) the members of the family of the employer." It was argued that the sale was by the son. He is not affected by the Act. Therefore, he was entitled to sell & he could not sell unless the shop was kept open to enable him to do so. So also as regards the appellant, the owner, who was there in a managerial capacity. In our opinion, this is fallacious because the conviction here is not for the sale but for keeping the shop open on a Closed day. S 2-A (j) does not give the son a right to keep the shop open or, for that matter, a right to sell. All it says is that he, being a member of the fancily, shall not be affected by the provisions of the Act. S 7 (1), on the other hand, is directed against the owner of the shop, not against his family. It compels the owner to keep his shop Closed one day in a week.
9. It was then contended that if a person employed in a managerial capacity cannot be affected by the Act, then the appellant who was there in that capacity cannot be compelled to Close the shop under S. 7. This is also fallacious. It happens in the present case that the owner & the manager are the same but the Act obviously makes provision for a Class of case in which they are different. The owner is obliged to Close the shop one day in a week, though the manager of the shop can work without, for example, having the twenty four consecutive hours of rest every week which S. 7A enjoins. The appellant s capacity as manager will have to be separated from his character as owner for this purpose. S. 2A (1) does not control S. 7 (1).
10. Lastly, it was contended that the scheme of the Act makes it plain that it is for ameliorating the conditions of labour employed in shops. It cannot therefore apply to shops in which no labour is employed particularly when the family of the employer" is expressly exCluded from the purview of the Act. For this reason also, it cannot fall under Item 97 in List III. We are of opinion that such a narrow interpretation cannot be placed upon the entry. The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected. That we think it had power to do. Further, to require a shopkeeper, who employee one or two men, to Close & permit his rival, who employs perhaps a dozen members of his family, to remain open, Clearly places the former at a grave commercial disadvantage. To permit such a distinction might well engender discontent & in the end react upon the relations between employer & employed. All these are matters of policy into which we cannot enter but which serve to justify a wide & liberal interpretation of words & phrases in these entries.
11. The appeal fails & is dismissed.
Appeal dismissed.
For Citation : AIR 1951 SC 315
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