ORDER Mohd. Ahmed Ansari, J.
1. This Writ Petition is by the Manager of a Hindu family firm known as Brothers Shops and Branch, which does business in Rajam, Srikakulam District. The family consists of seven brothers, who claim to he personally attending to their business, and six out of the brothers are still un-divided. They have a main shop which has two branches. In thy main shop as well as in one of its branches the six undivided brothers carry on retail business in a variety of goods including medicines. In the other branch the brother, who is the eldest and has separated, attends to the business in the footwear.
Their case in the writ petition is that they do not employ any other person either in the main shop or in its branches, and that as soon as the Madras Shops and Establishments Act, XXXVI of 1947, came into force they declared Sundays as weekly holidays in respect of the main shop and the foot-wear branch shop, Saturdays being such holidays in respect of the other branch shops. It appears that the Assistant Labour Inspector of Srikakulam who has been impleaded as the respondent to the writ petition, had visited the main shop on July 26, 1958 and issued directions for its closure on the weekly holiday, The petitioner claims to have then protested on the grounds that there were no persons employed in the shop except the owners.
It is further averred that they had pointed that the sale on that day was mainly of medicines; they having since 1951 obtained a drug licence for the two shops, excepting the footwear shop. Notwithstanding such protests the 1st respondent appears to have made a note in the visiting book that the shop was not to be kept opened on the weekly holiday. It is further alleged that the Labour Inspector had issued instructions to the Village Munsiff to watch the observance of the weekly holiday and to report breaches of the provisions of Section 11 (1) of the Madras Shops and Establishments Act.
The Village Munsiff had apprised the brothers of the instructions by the Labour Inspector, requested them to close the main shop on holidays and stated he. would otherwise make a report. A notice has also been served on the petitioner for having sold certain articles to two persons on Sunday, August 24, 1958, in contravention of Section 11 (1) of the Act. The writ petition challenges the constitutionality of Section 11 (1) of the Madras Shops and Establishments Act on the ground that:--
1. It contravenes the brothers' fundamental right to carry on business, which is given to them by Article 19 (1) (g), and it imposes restrictions which are not reasonable.
2. The Act, having been designed to regulate the conditions of work in shops, which have employees, travels beyond the scope and object of the statute by providing in the sub-section for total closure.
3. Section 11 (1) can have no application to shops without employees because of Section 4, but Section 45 (1) is wide enough to cover owners of such shops and to that extent Section 45 is ultra vires.
There are two other grounds for quashing the notice. These are that:--
4. There is a Notification No. 97 in G. O. 226, Development dated December, 22, 1953, which exempts all shops from the provisions of the Act, wherein the owner and his family members alone participate in the business, and
5. There is exemption by the Government Notification for the shops that deal mainly in sale of medicines and as the main shop partly sells medicines, it should also be exempted, there being no reason why such a shop should be closed and the differentiation made in favour of shops wholly selling medicines being void under Article 14 due to the discrimination without rational classification.
2. At this stage the impugned provisions can be usefully extracted, which read as follows:--
"11 (1) Every shop shall remain entirely closed on one day of the week, which day shall be specified by the shopkeeper in a notice permanently exhibited in a conspicuous place in the shop; and the day so specified snail not be altered by the shopkeeper more often than once in three months.
(2) Every person employed in a shop shall be allowed in each week a holiday of one whole day:
Provided that nothing in this Sub-section shall apply to any person whose total period of employment in the week, including any days spent on authorised leave, is less than six days, or entitle a person who has been allowed a whole holiday on the day on which the shop has remained close in pursuance of Sub-section (f), to an additional holiday.
(3) (a) The Provincial Government may, by Notification, require in respect of shops or any specified class of shops, that they shall, in addition to the day provided for by Sub-section (1), be closed at such hour in the afternoon of one week-day in every week at such hour as may be fixed by the Provincial Government.
(b) Every person employed in any shop to which a notification under Clause (a) applies, shall be allowed in each week an additional holiday of one half-day commencing at the hour in the after, noon fixed for the closing of the shop under Clause
(a).
(4) The Provincial Government may, for the purpose of Sub-section (3), fix different hours for different shops or different classes of shops or for different areas or for different times of the year.
(5) The weekly day on which a shop is closed in pursuance of a requirement under Sub-section (3) shall be specified by the shopkeeper in a notice permanently exhibited in a conspicuous place in the shop, and shall not be altered by the shop-keeper more often than once in three months.
(6) No deduction shall be made from the wages of any person employed in a shop on account of any day or part of a day on which if has remained closed or a holiday has been allowed in accordance with this section; and if such person is employed on the basis that he would not ordinarily receive wages for such day or part of a day, he shall none the less be paid for such day or part of a day the wages he would have drawn, had the shoo not remained closed, or had the holiday not been
" allowed, on that day or part of a day."
The intent of the Section is clear which is to provide holidays for those employed in shops without deductions in their wages. The compulsory closure of the shops for a day in each week is, therefore, enacted to secure such holiday to their employees, and the complaint by the writ petitioner is that such a closure where no employee exists is arbitrary, thereby amounting to interference with the brothers' fundamental right to carry on their trade. The Act was passed at the time when the International Labour Organisation was to meet at Delhi and it was expected to take up the question of social standard and security in the Asiatic regions.
It is equally well-known that the aforesaid Organisation through a series of conferences all over the world had notified certain standards, which were put forward before countries and after their acceptance by the countries there are checks to ascertain how far the recommendations have been implemented. That apart, the statement of object and reasons of the Act also states that there was no enactment within the Madras State regulating the conditions of work of employees in shops, commercial undertakings, restaurants, etc. The Weekly Holidays Act, 1942, which was the Central Act, was found limited in scope, as it contained no provisions for regulating hours of work, payment of wages, health and safety of these employees.
The preamble of the Act also states that it was intended to provide some regulation of conditions of work in the shops, commercial undertakings, restaurants, theatres, and other establishments and in certain other matters. Therefore the legislation was intended to safeguard certain classes of employees who work for wages in the aforesaid establishments. The provisions of the Act further show that no benefits are conferred by them on the near relations of the employer, who are dependent upon him. Section 4 enumerates the persons and establishments to whom this act would not apply Thus, persons in a position of management, persons whose work involves trading, or who are employed in establishments under the Government in Mines and Oil Fields, in bazars and in places where fairs and festivals are temporarily held for a period not exceeding fifteen days are exempted. Section 5 authorises the State Government to apply the provisions of the Act to any class of persons exempted by section 4 (1) (c) and (f). Section 6 further authorises the State Government to grant exemptions.
The second Chapter of the Act deals with shops, the third with the establishments other than shops, the fourth contains provisions relating to employment of children and young persons, the fifth covers regulations concerning health and safety, the sixth deals with holidays and wages, so does the seventh, and the ninth provides for penalties. It is obvious having regard both to the surrounding circumstances and the contents of the Preamble as well as the statement of object, that the main object of the Act is to preserve and protect persons working for wages in shops in clerical departments of factories and industrial undertakings, commercial establishments etc. The complaint of the writ petitioner is that the provisions of Section 11 (1) under which the brothers are being prosecuted, are not reasonably connected with, the object of the Act; for it covers such shops also as have no employees. There are two decisions directly on the point and they are conflicting. In Sadasivam v. State of Madras. Section 11 (1) has been found not to contain an arbitrary restriction, not to be of an excessive nature and therefore to be proper and in the interests of the public. In other words, this decision holds the provisions to be constitutional.
A contrary view has been taken in Abid Ali v. State of Uttar Pradesh, (1958) 1 Lab LJ 734. Therein the learned Judge has held that where a person was to work on every day and his working does not affect anyone else, it cannot be considered a reasonable restriction if he is stopped from earning his livelihood. The learned Judge has further found that the Legislature never intended to include within the Shops and Commercial Establishments of the Uttar Pradesh Act those shopkeepers who have no employees and who work themselves alone, With respect to the learned Judge I beg to differ.
If the section which the learned Judge was construing did not cover cases of owners working in their shops, the constitutionality of the provisions would hardly arise. That apart, the test laid by the Supreme Court for a provision being contrary to Article 19 of the Constitution was not even referred to in the Allahabad decision. The test was first stated in Chintaman Rao v. The State of Madhya Pradesh, . It has been laid therein that Clause (6) of Article 19 enables the State to make any law to impose in the interests of the general public reasonable restrictions on the exercise of the right conferred by Sub-clause (g) of Clause (1) and in order fo be reasonable a restriction must have a reasonable relation to the object, which the Legislature seeks to achieve and must not be in excess of that object. The mode of approach to ascertain the reasonableness of restrictions hag again been stated in State of Madras v. V. C. Row in these words;--
It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
The aforesaid test has again been reiterated in Express Newspaper Ltd. v. Union of India, where Bhagwati J., has observed that reasonable restriction connotes the limitation imposed on a person in enjoyment of the right, so that it should not be arbitrary or of an excessive nature beyond what is required in the interests of the public and that it implies intelligent care and deliberation. Again in M.H. Quareshi v. State of Bihar, his Lordship the Chief Justice of the Supreme Court observed at page 744 as follows:--
"Clause (6) of Article 19 protects a law which imposes in the interest of the general public reasonable restrictions on the exercise of the right conferred by Sub-clause (g) of Clause (1) of Article 19. Quite obviously it is left to the Court, in case of dispute, to determine the reasonableness of the restrictions imposed by the law. In determining that question the Court, we conceive, cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed.
The right conferred by Sub-clause (g) is expressed in general language and ifA there had been no qualifying provisions like Clause (6), the right so conferred would have been an absolute one. To the person who has this right any restriction will be irksome and may well be regarded by him as unreasonable. But the question cannot be decided on that basis. What the Court has to do is to consider whether the restrictions imposed are reasonable in the interests of the general public."
Finally Subba Rao, J., in Arunachala Nadar v. State of Madras, summarises the taw in these words:--
"Before we scrutinise the provisions of the Act, the law on the subject may be briefly noticed. Under
Article 19 (1) (g) of the Constitution of India all persons have the right to practise any profession, or to carry on any occupation, trade or business. Clause (6) of that Article enables the State to make any law imposing in the interest of general public reasonable restrictions on the exercise of the right conferred by Sub-clause (g) of Clause (1). It has been held that in order to be reasonable, a restriction must have a rational relation to the object which the Legislature seeks to achieve and must not go in excess of that object."
Therefore in determining the correctness of the complaint in the writ petition we have to ascertain whether the impugned sub-section has a rational relation to the object, which the Legislature seeks to achieve by the legislation. Now it cannot be denied that the compulsory closure of shops effectively enforces the grant of holidays. It affords the only safeguard against the possibility of evading the provisions of the Act, which no amount of inspection can eradicate. Therefore the impugned provision is reasonably connected with the object of the Act. In this connection it is well to remember that the reasonableness must not be from the point of view of the persons on whom the restrictions are imposed, for any restriction on the person whose right is being restricted is bound to be irksome. Nor must it be reasonable in the abstract, for no two persons would agree on it.
It must be reasonable in the interests of the general public, and the opinion of the Legislature.
selected by the majority of the community should carry weight. Taking all things into consideration it appears to me that a rule for closing all shops has become an accepted and reasonable method of achieving the object which legislations similar to the one before me seek to attain. Section-11 (1) is therefore legal and the complaint of the provisions being unconstitutional fails.
3. The other grounds complained need not be dealt with at length, The Notification exempting all shops wherein the owner and his family members participate has been "cancelled and the counter does not challenge its being so cancelled. The Complaint of not including in the Notification exempting shops selling medicines, those shops that partially sell medicines as discriminatory is also without force, for the distinction between the two is obvious and cannot be complained to be arbitrary. In the result this writ petition fails, which is dismissed with costs. Rs. 100 fixed as Advocate's fee.