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PETITIONER: RAMDHANDAS AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 10/04/1961

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1961 AIR 1559            1962 SCR  (1) 852  CITATOR INFO :  APL        1962 SC 316  (36)

ACT: Shop Establishments--Enactment to Provide for regulation  of hours work--Constitutional validity--Forty eight hour week-- Opening  and closing hours--Reasonable  restrictions--Punjab Shops and Commercial, Establishments Act, 1958 (Punj.  15 of 1958),  SS. 4, 7, 9, 10--Constitution of India, Arts.  19(1) (g), 19(6).

HEADNOTE: Section 7 of the Punjab Shops and Commercial Establishments Act,  1958, provided that no person shall be employed  about the  business of an establishment for more than forty  eight hours in any week and nine hours in any one day.  Under s. 9 of the Act no establishment shall save otherwise provided by the  Act,open  earlier than ten o’clock in  the  morning  or close  later  than  eight  o’clock  in  the  evening.    The petitioners  challenged the constitutional validity  of  the aforesaid provisions of the Act on the ground that  having,, regard  to  the  nature  of  their  business,  it  would  be impossible  for them to carry it on in the manner  in  which they  were  doing  unless the Act  permitted  them  to  work without regard to the restrictions imposed by the limitation as to hours of work of employees under s. 7(1) or the  hours for  the opening and closing of the establishments under  s. 9, and that, 853 consequently, these provisions imposed unreasonable restric- tions on their fundamental right to carry on their trade  or business under Art. 19(1)(e) of the Constitution  of  India. The petitioners’ case was that their business was such  that the  customers who supplied them with goods brought them  in vehicles which arrived at their godowns at all hours of  the day  and night and that they received messages by  telephone and  telegram  similarly both during day and  night.   These according to them rendered it necessary that their place  of business  should  be kept open practically for  all  the  24 hours of the day.

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Held,  that  ss.7 and 9 of the Punjab Shops  and  Commercial Establishments  Act, 1958  are intra vires the  Constitution of India. The test of constitutional validity is whether the  impugned provisions  of  the  Act which were enacted  to  afford  the worker better conditions of work and more regulated hours so as  to  avoid  physical  overstrain  and  ensure  to  him  a reasonable amount of leisure in the interest of the  general public, are unreasonable restrictions from the point of view of  the employer and go beyond what is reasonably needed  to protect the worker. judged by this test, neither the 48-hour week, nor the specification of the opening and closing hours could  be said to have gone beyond what by modern  standards are necessary for ensuring the health and efficiency of  the employee. Manohar  Lal  v. The State of Punjab, [1961] 2  S.C.R.  343, followed.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 164 01 1958. Writ Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. N. C. Chatterjee and Naunit Lal, for the petitioners. N. S. Bindra and D. Gupta, for the respondent. 1961.  April 10.  The Judgment of the Court was delivered by AYYANGAR,   J.-The  constitutional  validity  of   the   Ay. operative  provisions  of the Punjab  Shops  and  Commercial Establishments  Act, 1958 (Punjab Act 15 of 1958), which  we shall  hereafter refer to as the Act, is challenged in  this writ  petition  filed  under Art. 32  of  the  Constitution, seeking reliefs appropriate to such a challenge. There  are  two petitioners and the nature of  the  business carried on by, them, which is set out in the 854 petition,  indicates that they have combined with a view  to bring up before the Court the implications of the  enactment with  reference to different types of business which  trades in  the  Punjab  might be’ carrying on and  which  would  be impeded  or  restricted by the provisions of the  Act.   The first petitioner states that he has a shop at Mandi  Dabwali in  Hissar  District  where he carries on  business  in  the purchase  and  sale  of  grains,  etc.  in  wholesale.   The relevant averment in regard to the nature of his business is that  the  customers who supply him with  goods  bring  them loaded  in carts drawn by camels or bullocks and that  these vehicles  arrive at his godowns at all hours of the day  and night.  He also states that for the purpose of the purchases or sales effected by him, he receives messages by  telephone and  telegram  both during the day and  the  night.   These, according  to him, render necessary, if he has to  carry  on business  as he has been doing all along, that his place  of business  should be kept open practically the whole  of  the day  and  night,  i.e., for all the 24  hours.   The  second petitioner  states that he is carrying on a retail  business on  a  small  scale, and that he  employs  no  outsider  but attends  to  all  the work in the  shop  himself,  with  the assistance, if necessary, of the members of his family.   In this  case  also it is stated that the goods  purchased  are brought  to  him  at  all hours of the  day  and  night  and similarly  he  has  to receive messages  during  the  entire period.   It  is  in this background  that  the  petitioners desire  that the Court should view the restrictions  imposed upon  them  by  those  provisions  of  the  Act  which   are

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challenged in the petition. We  shall now proceed to set out  he impugned provisions  of the  Act with a view to determine whether for all or any  of the  reasons  set out in the petition,any of them  could  be said to constitute an unreasonable restriction on the  right to  carry on trade or business so as not to be protected  by Art. 19(6) of the Constitution which is the gravamen of  the complaint formulated in the petition. The  Act received the assent of the President on  April  25, 1958, and was published in the Punjab 855 Gazette on May 1, 1958.  According to the preamble, it is an Act to provide for the regulation of conditions  of work and employment in shops and commercial establishments.  The  Act repealed  and  re-enacted, with  modifications,  the  Punjab Trade Employees Act, 1940, to which enactment also it  would be necessary to advert in its proper place.  Section 1(3) of the Act provides that the Act shall come into force on  such date  as  Government may, by notification  appoint  in  this behalf  and by a notification under this provision  the  Act was directed to come into force from June 1, 1958.  The Act, however,, did not of its own force apply to the entirety  of the Punjab State, for s. 1(4) enacted:               "1(4).   It shall apply in the first  instance               to  the areas specified in the  Schedule,  but               Government may by notification direct that  it               shall  also  apply to such other area  and  on               such   date  as  may  be  specified   in   the               notification." Mandi Dabwali where the petitioners carry on business is one of the local areas in the district of Hissar set out in  the Schedule  annexed.   We  might  here  note  that  the   main grievance of the petitioners appears to, be that it has  not been brought into force in neighbouring local areas and that this   disparity  in  the  regulations  is  acting  to   the disadvantage of people carrying on business in the areas set out  in the Schedule.  This, however, cannot obviously be  a ground  of  constitutional  grievance  and  learned  Counsel therefore very properly did not rely on it except merely  to draw our attention to this fact. Section  2(iv)  defines a ’a  commercial  establishment’  to which  the Act applies as meaning "any premises wherein  any business,  trade  or profession is carried on  for  profit", omitting the unnecessary words.  Section 2(v) defines  ’day’ as  meaning  "the period of twenty-four hours  beginning  at midnight", again omitting what is immaterial.  The operative provisions  of the Act which were attacked in  the  petition are ss. 7 and 9 and it would be convenient to set out  their material terms:                  "7. Hours of employment.--(1) Subject to                       the 856 provisions  of this Act, no person shall be  employed  about the  business of an establishment for more than  forty-eight hours in any one week, and nine hours in any one day. (2)............................... (3)............................... (4)............................... (5)............................... 9. Opening and closing hours.-- No establishment shall, save as  otherwise  provided by this Act, open earlier  than  ten o’clock in the morning or close later than eight o’clock  in the evening; Provided  that  any customer who was  in  the  establishment

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before  the closing hour may be served during the period  of fifteen minutes immediately following such hour; Provided further that the State Government may, by order and for   reasons   to  be  recorded  in   writing,   allow   an establishment attached to a factory to open at eight o’clock in the morning and close at six o’clock in the evening. Provided   further  that  the  State  Government   may,   by notification in the official Gazette, fix such other opening and  closing hours in respect of any establishment or  class of  establishments, for such period and on such  conditions, as may be specified in such notification." For the sake of completeness and to understand the scheme of the  enactment  we would set out the terms of  s.  10  also, which reads:               "10.    Close  day.-(1)  Save   as   otherwise               provided  by  this  Act,  every  establishment               shall remain close on every Sunday:               Provided that, in the case of an establishment               attached  to  a  factory,  the  employer   may               substitute the close day of such establishment               so  as to correspond to the substituted  close               day  of  the factory in the  same  manner  and               subject  to  the same conditions as  are  laid               down  in  this behalf in  the  Factories  Act,                             1948.               (2) (i) The employer of an establishment shall               in   the  prescribed  form  intimate  to   the               prescribed 857               authority the working hours and the period  of               interval   of  the  employed  persons   within               fifteen  days of the date of  registration  of               the establishment.               (ii)The  employer  of  an  establishment   may               change,  the working hours and the  period  of               interval  once  in a quarter of  the  year  by               giving  intimation in the  prescribed form  to               the prescribed authority at least fifteen days               before the change is to take place.               (3)  Notwithstanding  anything  contained   in               subsection    (1),   the   employer   of    an               establishment  may open his  establishment  on               the close day if--               (a)  such  day  happens to  coincide  with.  a               festival; and               (b) employees required to work on that day are               paid remuneration at double the rate of  their               normal wages calculated by the hour". It  is  urged  by Mr.  Chatterji--learned  Counsel  for  the petitioners-that   having  regard  to  the  nature  of   the petitioners’  business,  whose  features  we  have  set  out earlier,  it would be impossible for them to carry it on  in the  manner in which they have been doing up to now,  unless the  Act  permitted  the first petitioner  to  work  without regard  to the restrictions imposed by-the limitation as  to hours  of work of employees imposed by s. 7(1) of  the  Act, and both the petitioners without regard to the hours for the opening and closing of the "establishments" under s. 9. Before  entering  on  a  discussion  of  the  constitutional propriety of the restrictions imposed we may point out  that the  provisions of the Act contemplate  that  establishments might   fall  under  three  categories:.-(1)  where  it   is necessary  in the public interest, and having regard to  the service which they render to the community, that the  normal hours  of working should not be subject to the  restrictions

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imposed by ss. 9 or 10, (2) those in which there is no  need for  complete freedom from these restrictions, but in  which an adjustment merely as regards the hours set out in s. 9 is sufficient,  (3) those in which neither the requirements  of the trade nor, of course, the interest of the general public 858 would suffer if the establishment adjusted its operations in conformity with the Act. The first head is dealt with by s. 4 of the Act which reads: "4.  Provisions  of  sections 9 and  10  not  applicable  to certain  establishments.-Nothing in sections 9 and 10  shall apply to- (a)  clubs, hotels, boarding houses, stalls and  refreshment rooms at the railway stations; (b) shops of barbers and hair-dressers; (c) shops dealing mainly in meat, fish, poultry, eggs,  dairy  produce (except ghee),  bread,  confectionery, sweets,  chocolates,  ice, ice-cream,  cooked  food,  fruit, flowers, vegetables or green fodder; (d) shops dealing mainly in medicines or medical or surgical requisites   or  appliances  and  establishments   for   the treatment or care of the sick, infirm, destitute or mentally unfit; (e) shops dealing in articles required for funerals, burials or cremations; (f)   shops  dealing  in  pans  (betel  leaves),  biris   or cigarettes,  or  liquid refreshments sold  retail  for  con- sumption on the premises; (g) shops dealing in newspapers or periodicals, editing  and despatching sections of the newspaper offices and offices of the news agencies; (h)   cinemas,   theatres  and  other   places   of   public entertainment; (i)  establishments  for  the  retail  sale  of  petrol  and petroleum products used for transport; (j) shops in regimental institutes, garrison shops and troop canteens in cantonments; (k)  tanneries; (1)  retail  trade carried on at an exhibition or  show,  if such  retail  trade is subsidiary or ancillary only  to  the main purpose of the exhibition or show; (m) oil mills not registered under the Factories Act, 1948; (n)  brick and lime kilns; (o) commercial establishments engaged in the manufacture  of bronze and brass utensils so far as 859               it  is confined to the process of  melting  in               furnaces; and               (p) saltpetre refineries."               Similarly   by  notification  of   the   State               Government  State  dated  June  1,  1958,  the                             following   classes  of   establishments   wer e               exempted from the provisions of SS. 9 and 10:               "(1) establishments dealing in the retail sale               of  Phullian, Murmura, sugar-coated grams  and               Reoris;               (2) commercial colleges of shorthand and type-               writing.               (vide Punjab Government notification No. 6567.               S-Lab. 58/1737-RA, dated June 1, 1958.)               (3)all booking offices of the Transport  (vide               Punjab Government notification No. 6147/ 5815-               C-Lab-58/1741-RA, dated June 1, 1958)." (2)The  second  category of cases are those covered  by  the

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second  and  third provisos to S. 9. Action has  been  taken under the third proviso to S. 9, by a notification which was issued  at  the same time as when the Act was  brought  into force which runs in the following terms:               "The following categories of establishments in               the  State  of Punjab shall not  open  earlier               than  eight  o’clock in the morning  or  close               later  than six o’clock in the evening  during               the period from 1st May to               thirty-first August every year:-               (1)establishments    dealing    in     timber,               manufacture  of  furniture, tents,  supply  of               furniture  or tents on hire, cycles  or  their               repairs  or painting or dyeing;                (2)establishments,   other   than   tailoring               establishments,  which include ’workshops’  or               other   establishments  where   articles   are               produced, adapted or manufactured, with a view               to their use, transport or sale; and                (3)  establishments dealing  in  agricultural               produce  brought for sale  by  producers.(vide               Notification   No.  6567.    S-Lab-58/1735-RA,               dated June 1, 1958)." (3)  Those  outside  S.  4 and  which  are  not  covered  by notifications under the provisos to S. 9 have, of 860 course,  to  adjust their business in  accordance  with  the requirements  of  the Act.  It is in the  context  of  these exceptions and the elasticity for which provision is made to meet  the  imperative requirements of  particular  types  of business,  that  the  constitutional  objection  has  to  be considered. The   constitutional   objection  is  that,   the   impugned provisions   impose   unreasonable   restrictions   on   the fundamental  right  of the petitioners "to  carry  on  their trade  or business".  The regulation of contracts of  labour so as to ameliorate their conditions of work is in reality a problem  of  human relationship and social control  for  the advancement  of  the  community.   The  public  and   social interest  in the health and efficiency of the worker is,  at the present day, beyond challenge. Our Constitution does not protect or guarantee any fundamental right in the nature  of the provision in Art. 1, s. 10(1), of the U. S. Constitution against  "impairment of the obligation of  contracts".   The only  test of constitutional validity therefore  is  whether the provision in the impugned law, which is enacted to avoid physical  overstrain of the worker, and so as to afford  him better  conditions of work, and more regulated  hours,  thus ensuring to him a reasonable amount of leisure-factors which would render the restrictions in the interest of the general public,  is  unreasonable  from the point  of  view  of  the employer. For answering this question it would be  necessary to ask-are the restrictions necessary,  or do they go beyond what is reasonably needed to protect the worker?  Judged  by this  test, neither the 48-hour week, nor the  specification of  the opening and closing hours can be said to  have  gone beyond  what by modern standards are necessary for  ensuring the health and efficiency of the employee.  It might also be added  that the concept of what is necessary to  secure  the welfare of labour, or indeed of the elements which determine its  content  are neither of them fixed or static,  but  are dynamic,  being  merely the manifestation or  index  of  the social  conscience  as it grows and develops  from  time  to time. Besides, this point regarding restrictions of this

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861 nature   being   unreasonable  is  concluded   against   the petitioners by the decision of this Court in Manohar Lal  v. The  State of Punjab (1) judgment on which was delivered  on November  11, 1960.  The provision there  impugned was s.  7 of  the Punjab Trade Employees Act, 1940, (which, as  stated earlier, had been repealed and re-enacted with modifications by the Act) which directed that the shops and establishments to  which it applied should remain closed on one day in  the week  (corresponding  to  s. 10 of the Act  of  1958).   The appellant  before this Court was a small trader who did  not employ  any  person  under  him but  who,  like  the  second petitioner before us, himself with the members of his family attended  to  all  the requirements  of  his  shop.   Basing himself  on this feature he challenged the validity  of  the provision  which  restricted  his  right  to  carry  on  his business in such manner as he chose on all the seven days in the week.  In repelling these objections this Court said:               "The  ratio  of  the  legislation  is   social               interest in the health of the worker who forms               an  essential  part of the  community  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.......  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..A                             restriction imposed, with a view to secure thi s               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 (1)  [1961] 2 S.C.R. 343. 862               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." These  observations,  in  our  opinion,  clearly  apply  and suffice  to support the validity of the  related  provisions here impugned. The petition fails and is dismissed with costs.                             Petition dismissed.