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PETITIONER: MANOHAR LAL

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 11/11/1960

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA IMAM, SYED JAFFER KAPUR, J.L. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1961 AIR  418            1961 SCR  (2) 343  CITATOR INFO :  R          1961 SC1559  (9)  APL        1962 SC 316  (56)

ACT: Trade  Employees--Close  day--Enactment,  if  violative   of fundamental     rights--Workers’       Welfare--Protection-- Restriction,  if unreasonable--Punjab Trade  Employees  Act, 1940, (Punj.  X of 1940) s. 7 (1)

HEADNOTE: The  appellant  who was a shopkeeper was convicted  for  the second  time  by  the  Additional  District  Magistrate  for contravening  the provisions of s. 7(1) of the Punjab  Trade Employees Act, 1940, under which he was required to keep his shop  closed on the day which he had himself chosen as  a  " close  day ". He raised the plea that the Act did not  apply to  his  shop  as he did not employ any  stranger  but  that himself  alone worked in it and that the application  of  s. 7(1)  to  his  shop would be violative  of  his  fundamental rights under Arts. 14, 19(1)(f) and (g) of the  Constitution and  also  that the restriction imposed was  not  reasonable within  Art.  19(6)  as it was not in the  interest  of  the general 344 public.   The  High  Court  dismissed  his  application  for revision  of  the  Magistrate’s  order.   On  appeal  on   a certificate of the High Court, Held, that the main object of the Act was the welfare of the employees  and  to protect their as well as  the  employers’ health   by  preventing  them  from  over  work.    Such   a restriction being in the interest of the general public  was reasonable   within  the  meaning  of  Art.  19(6)  of   the Constitution. The  provisions of s. 7(1) were constitutionally  valid  and were  justified as for securing  administrative  convenience and  avoiding evasion of those provisions designed  for  the protection of the workmen. Manohar Lal v. The State, [1951] S.C.R. 671, referred to.

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JUDGMENT: CRIMINAL   APPELLATE  JURISDICTION:  Criminal   Appeal   No. 173/1956. Appeal  from the judgment and order dated May 23,  1956,  of the Punjab High Court in Criminal Revision No. 1058/1954. K.   L. Arora, for the appellant. N.   S. Bindra and R. H. Dhebar, for the respondent. 1960.  November 11.  The Judgment of the Court was delivered by AYYANGAR J.-This appeal on a certificate under Arts. 132 and 134(1)  of  the Constitution granted by the  High  Court  of Punjab raises for consideration the constitutionality of  s. 7(1) of the Punjab Trade Employees Act, 1940. The  appellant-Manohar Lal--has a shop at Ferozepore  Cantt. in which business is carried on under the name and style  of I  Imperial  Book  Depot’.  Section 7 of  the  Punjab  Trade Employees Act, 1940 (hereinafter called the Act), enacts: " 7. (1) Save as otherwise provided by this Act, every  shop or  commercial establishment shall remain closed on a  close day. (2)(i).   The  choice  of a close day shall  rest  with  the occupier of a shop or commercial establishment and shall  be intimated  to the prescribed authority within two months  of the date on which this Act comes into force." to extract the provision relevant to this appeal.  The 345 appellant had chosen Friday as " the close day ", i.e.,  the day of the week on which his shop would remain closed.   The Inspector of Shops and Commercial Establishments, Ferozepore Circle, visited the appellant’s shop on Friday, the 29th  of January,  1954, and found the shop open and the  appellant’s son selling articles.  Obviously, if s. 7(1) were valid, the appellant was guilty of a contravention of its terms and  he was  accordingly prosecuted in the Court of  the  Additional District Magistrate, Ferozepore, for an offence under s.  16 of the Act which ran: "  Subject  to  the other provisions of  this  Act,  whoever contravenes    any    of    the    provisions    of     this Act  ................................................  shall be liable on conviction to a fine not exceeding  twenty-five rupees  for  the first offence and one  hundred  rupees  for every subsequent offence ". The appellant admitted the facts but he pleaded that the Act would not apply to his shop or establishment for the  reason that  he had engaged no strangers as employees but that  the entire work in the shop was being done by himself and by the members of his family, and that to hold that s. 7(1) of  the Act  would  apply to his shop would be  unconstitutional  as violative of the fundamental rights guaranteed by Arts.  14, 19(1)(f)  and  (g)  of  the  Constitution.   The  additional District   Magistrate  rejected  the  plea  raised  by   the appellant regarding the constitutionality of s. 7(1) in  its application to shops where no " employees " were engaged and sentenced  him to a fine of Rs. 100 and simple  imprisonment in  default of payment of the fine (since the appellant  had been  convicted once before).  The appellant applied to  the High Court of Punjab to revise this order, but the  Revision was dismissed.  The learned Judges, however, granted a  cer- tificate of fitness which has enabled the appellant to  file the appeal to this Court. Though the validity of s. 7(1) of the Act was challenged  in the  High  Court  on various grounds,  learned  Counsel  who appeared before us rested his attack on one point.  He urged

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that the provision violated the 44 346 appellant’s  right  to  carry  on  his  trade  or   business guaranteed by Art. 19(1)(g) and that the restriction imposed was  not reasonable within Art. 19(6) because it was not  in the  interest of the general public.  Learned  Counsel  drew our attention to the long title of the Act reading " An  Act to limit the hours of work of Shop Assistants and Commercial Employees  and to make certain regulations concerning  their holidays, wages and terms of service " and pointed out  that the insistence on the appellant to close his shop, in  which there were no " employees ", was really outside the  purview of  the  legislation and could not be said to  subserve  the purposes  for  which  the Act was enacted.   In  short,  the submission of the learned Counsel was that the provision for the  compulsory closure of his shop for one day in the  week served  no interests of the general public and that  it  was unduly and unnecessarily restrictive of his freedom to carry on a lawful trade or business, otherwise in accordance  with law,  as he thought best and in a manner or mode  most  con- venient or profitable. We  are clearly of the opinion that the submissions  of  the learned  Counsel should be repelled.  The long title of  the Act  extracted earlier and on which learned  Counsel  placed considerable  reliance as a guide for the  determination  of the  scope  of  the  Act  and  the  policy  underlying   the legislation,  no doubt, indicates the main purposes  of  the enactment   but  cannot,  obviously,  control  the   express operative  provisions  of the Act, such as for  example  the terms  of s. 7(1).  Nor is the learned counsel right in  his argument that the terms of s. 7(1) are irrelevant to  secure the  purposes  or to subserve the underlying policy  of  the Act.  The ratio of the legislation is social interest in the health of the worker who forms an essential part of the com- munity  and  in whose welfare, therefore, the  community  is vitally interested.  It is in the light of this purpose that the provisions of the Act have to be scrutinized.  Thus,, S. 3 which lays down the restrictions subject to which alone "I young persons ", defined as those under the age of 14, could be  employed  in any shop or  commercial  establishment,  is obviously with a view to 347 ensuring  the health of the rising generation  of  citizens. Section 4 is concerned with imposing restrictions  regarding the  hours  of work which might be  extracted  from  workers other than " young persons ". Section 4(1) enacts: " Subject to the provisions of this Act, no person shall  be employed  about  the  business  of  a  shop  or   commercial establishment  for  more  than the  normal  maximum  working hours, that is to say, fifty-four hours in any one week  and ten hours in any one day. bringing the law in India as respects maximum working  hours in line with the norms suggested by the International Labour Convention.  Sub-clauses (4) and (5)    of this section  are of some relevance to the matter now     under consideration: " (4) No person who has to the knowledge of the occupier  of a shop or commercial establishment been previously  employed on any day in a factory shall be employed on that day  about the  business of the shop or commercial establishment for  a longer period than will, together with the time during which he has been previously employed on that day in the  factory, complete the number of hours permitted by this Act. (5)  No  person shall work about the business of a  shop  or commercial establishment or two or more shops or  commercial

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establishments  or a shop or commercial establishment and  a factory  in  excess  of the period during which  he  may  be lawfully employed under this Act." It  will be seen that while under sub-cl. (4) employers  are injuncted from employing persons who had already worked  for the   maximum   number  of  permitted   hours   in   another establishment,  sub-cl.  (5) lays an embargo on  the  worker himself from injuring his health by overwork in an endeavour to  earn more.  From this it would be apparent that the  Act is concerned-and properly concerned-with the welfare of  the worker  and seeks to prevent injury to it, not  merely  from the  action  of  the employer but from his  own.   In  other words, the worker is prevented from attempting to earn  more wages by working longer hours than is good 348 for him.  If such a condition is necessary or proper in  the case  of  a  worker,  there does not  seem  to  be  anything unreasonable  in applying the same or similar principles  to the  employer  who works on his own business.   The  learned Judges of the High Court have rested their decision on  this part  of  the case on the reasoning that the  terms  of  the impugned section might be justified on the ground that it is designed  in  the  interest  of the owner  of  the  shop  or establishment  himself and that his health and welfare is  a matter  of interest not only to himself but to  the  general public  The legislation is in effect the exercise of  social control over the manner in which business should be  carried on-regulated in the interests of the health and welfare  not merely  of those employed in it but of all those engaged  in it.   A  restriction  imposed with a  view  to  secure  this purpose  would,  in our opinion, be clearly  saved  by  Art. 19(6). Apart  from  this,  the constitutionality  of  the  impugned provision  might be sustained on another ground also,  viz., with  a  view to avoid evasion  of  provisions  specifically designed for the protection of workmen employed.  It may  be pointed  out  that  acts  innocent  in  themselves  may   be prohibited  and  the restrictions in that  regard  would  be reasonable,  if  the  same  were  necessary  to  secure  the efficient enforcement of valid provisions.  The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with   the   character  of  unconstitutionality   as   being unreasonable.  The provisions could, therefore, be justified as  for  securing  administrative convenience  and  for  the proper enforcement of it without evasion.  As pointed out by this  Court  in  Manohar  Lal v. The  State  (1)  (when  the appellant   challenged  the  validity  of   this   identical provision but on other grounds): "  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............ To require a shopkeeper,  who employs one or two men, (1)  [1951] S.C.R. 671, 675. 349 to  close and 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." We have, therefore, no hesitation in repelling the attack on the  constitutionality  of s. 7(1) of the Act.   The  appeal fails and is dismissed. Appeal dismissed.

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