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PETITIONER: MANOHAR LAL

       Vs.

RESPONDENT: THE STATE

DATE OF JUDGMENT: 23/05/1951

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  315            1951 SCR  671  CITATOR INFO :  R          1961 SC 418  (6)

ACT: Punjab  Trade  Employees Act, 1940, ss. 2-A (i) and  (j),  7 (1), 16 --Shopkeeper without employees--Sate by son on close day-- Liability of shopkeeper--Scope of s. 2-A (i) and (j).

HEADNOTE: Section  7  sub-s. (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- section (2) (i) stated that "The choice  of a  close  day shall rest   with the owner or occupier  of  a shop  ......  and shall be intimated   87 672   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   appellant’s 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, by the Full Court--(i) that the provincial  Government could  under  item  No. 27 in List 1I  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;

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(iii)  the appellant  was not entitled to be exempted  under el. (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.

JUDGMENT:      CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal No. 11 of 1950.      Appeal  under Art. 134 (1) (c) of the  Constitution  of India  against the Judgment and Order dated the 10th  April, 1950,  of the High Court of Judicature at Simla in  Criminal Revision  No. 449 of 1949.  The facts of the case appear  in the judgment. Kundan  Lal  Arora for the appellant. S.N.  Chopra  for  the respondent.      1951.  May 23. The Judgment of the Court was  delivered by      Bose  J. --This is a criminal appeal against a  convic- tion  under  section 16 of the Punjab Trade  Employees  Act, 1940, as amended in 1943, read with section 7(1).      The appellant is a shopkeeper who owns and 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 673 divided into two sections.  In one, articles of haberdashery are sold; in the other, articles of stationery. Section 7(1) of the Act as amended requires that       "Save as otherwise provided by this Act, every shop  ......  shall remain  closed  on a close day." Sub-section (2)(i) states  that-- The  choice  of  a close day shall rest with  the  owner  or occupier  of a shop  ......  and shall be intimated  to  the prescribed authority within etc."     The  appellant made the following choice. He elected  to close the haberdashery section on Mondays and the stationery section  on Saturdays and gave the necessary  intimation  to the prescribed authority to that effect.     On  Monday, the 17th of May, 1948, the  appellant’s  son sold a tin of boot polish to a customer from the  haberdash- ery,  section  of  the shop. The appellant  was  present  in person  at the time of the sale. Monday was a close day  for the haberdashery section and so the appellant was prosecuted under section 16 read with section 7. The trying  Magistrate held that in selling the article of haberdashery on a  close day and in not observing Monday as a close day the appellant had infringed the provisions of section 7(1) of the Act.  He accordingly  convicted him and 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 substantial question of law relating to the  Govern- ment of India Act, 1935, was involved, was granted and  that is how we come to be seized of the matter.     The  learned  counsel for the appellant  contended  that section 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 Government 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. 674

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   Item No. 27 in List II covers "trade and commerce within the  Province."  In  our opinion,  a  Provincial  Government could, under that entry, regulate the hours, place, date and manner  of sale of any particular commodity or  commodities. It could, for example, state that the sale of explosives  or other dangerous substances should only be in selected areas, at  specified times or on specified days when extra  precau- tions for the general safety of the public and those direct- ly 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 and so forth. Instead of doing that, it has chosen to regulate  the internal trade of the Province in this manner which is  only one of the various ways in which it could have acted.     The  matter  can also be brought under item 27  in  List III:   "welfare  of labour; conditions of labour."  The  im- pugned section is a general one and 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  and  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 establish- ments.  Therefore, in so far as section 7 covers  establish- ments  where  labour is employed, it  is  undoubtedly  intra vires. But it was argued that the section can have no appli- cation  to  shops which an owner runs with  or  without  the assistance  of his family.  Reliance for this was placed  on section  2-A (i) and (j) which is as follows: "2-A.  Nothing in this Act shall apply to-- (i) persons employed in a  managerial capacity  ...... and (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 and he could not sell unless the shop was kept    675 open to enable him to do so.  So also as regards the  appel- lant, 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 close day.  Section 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 family, shall not  be affected by the provisions of the Act. Section 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.     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 section 7. This is also  fallacious. It happens in the present case that the owner and the manag- er 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 section  7-A  enjoins. The appellant’s capacity  as  manager will  have to be separated from his character as  owner  for this  purpose.   Section 2-A(i) does not control  section  7 (1).     Lastly,  it was argued 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

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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  27 in List III. We are of opinion that such a narrow  interpre- tation 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 employs one or two men, to close and 676 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  and in the end  react  upon  the relations  between  employer  and employed.  All  these  are matters of policy into which we cannot enter but which serve to  justify a wide and liberal interpretation of  words  and phrases in these entries. The appeal fails and is dismissed. Appeal dismissed. Agent for the appellant: Vidya Sagar. Agent for the respondent: P.A. Mehta.