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State Of Bombay v. V.M Jawadekar
Factual and Procedural Background
This is a Reference under section 432 of the Code of Criminal Procedure made by the learned Magistrate, First Class, Nagpur. The Reference arises from two prosecutions against the accused, Jawadekar, who operates a sweetmeat business called "Satari Pedha Shop" on Sitabuldi Main Road, Nagpur.
In Criminal Case No. 1144 of 1958 it was alleged that on 30 December 1956 (a weekly close day) at 10 a.m. the Inspector of Shops and Establishments found the accused selling sweetmeats to customers with the assistance of his employee Govinda. In Criminal Case No. 1144-A of 1958 it was alleged that on 9 December 1956 (a weekly close day) the Inspector found the accused carrying on business with the assistance of two employees, Govinda and Feru.
The accused was charged under the provisions of sections 9(1) and 9(2) of the C.P. and Berar Shops and Establishments Act, 1947, as amended. Section 32(1) (penalties) and the definitions of "employer" and "person employed" in the Act were set out and considered in the Reference.
Before the Magistrate, preliminary objections were raised challenging the constitutionality of ss. 9(1) and 9(2); the Magistrate expressed the view that those provisions were ultra vires the Constitution. The Reference therefore calls for judicial consideration of the vires of those provisions.
Legal Issues Presented
- Whether sections 9(1) and 9(2) of the C.P. and Berar Shops and Establishments Act, 1947 are ultra vires the State Legislature because they violate constitutional guarantees, specifically articles 19 and 14 of the Constitution.
- Whether the restrictions imposed by section 9(1) constitute "reasonable restrictions" in the interests of the general public under article 19(6) of the Constitution (i.e., whether the compulsory weekly closing is a permissible restriction on the right to carry on trade or business under article 19(1)(g)).
- Whether the statutory definition of "employer" as including a person having charge of or owning an establishment brings within the scope of ss. 9(1) and 9(2) a businessperson who conducts the shop alone (a point noted but expressly left undecided by the court in this Reference).
Arguments of the Parties
Learned Special Government Pleader (for the State)
- Contended that there is nothing in the language of ss. 9(1) and 9(2) which contravenes articles 19 and 14 of the Constitution.
- Relied on settled principles under article 19(6) and on decisions of the Supreme Court to argue that the restrictions in ss. 9(1) and 9(2) are reasonable and enacted in the interests of the general public, thus validly imposing limitations on the right under article 19(1)(g).
Mr. Padhye (learned counsel for the accused)
- Argued that s. 9(1) is very wide and prevents a shopkeeper from personally serving customers on the weekly holiday even if no employee is asked to work on that day, thereby depriving him of his fundamental right to carry on trade or business every day.
- Asserted that an individual cannot be deprived of earning his livelihood so long as he does not act against the interests of his employees; the accused should be allowed to work personally on the holiday if no employee works in the shop that day.
- Advanced the contention that the statutory definition of "employer" is so wide that it may unreasonably include persons who have no employees and run the business alone; it was argued that in such a case compelling a weekly holiday would be unreasonable. (The court noted this point but did not decide it in the Reference.)
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M.H. Quareshi v. State of Bihar [1958] A.I.R. S.C. 731 | Explains clause (6) of Article 19: courts must determine whether restrictions are reasonable in the interests of the general public rather than from the viewpoint of the person affected. | The court quoted this passage to frame the test for reasonableness under Article 19(6) and applied that test to conclude the weekly-closing restriction should be assessed by its public interest purpose (protection of employees), not by the employer's perception that it is irksome. |
| Hariprasad Shivshankar v. A.D. Divelhar | On interpreting artificial definitions: an artificial definition may extend beyond ordinary meaning only when there are compelling words showing such intention; otherwise the ordinary meaning should be preserved. | The court invoked this observation when discussing the statutory definition of "employer," noting that the definition should not be read so as to destroy the ordinary meaning unless compelled; the court declined to express a final view on whether the definition reaches sole proprietors without employees in this Reference. |
| Sadasivam v. State of Madras [1957] A.I.R. Mad. 144 | Authority on the validity of similar provisions (as referenced in the opinion). | The court noted that its view aligned with the decision in Sadasivam, using it as supporting authority for upholding the impugned provisions. |
| Abid Ali v. State of U.P. [1958] I.L.L.J. 257 | High Court decision upholding similar legislative provisions (context as provided in the opinion). | Referenced as supportive jurisprudence from the High Court of Allahabad for the court's conclusion that the impugned provisions are valid. |
| Grandhi Mangaraju v. Labour Inspector | High Court decision relevant to the question of validity of shop-closing provisions (as referred to in the opinion). | Referred to as supporting authority from the High Court of Andhra Pradesh for the court's view that the provisions are not ultra vires. |
Court's Reasoning and Analysis
The court proceeded by identifying the constitutional challenge and then applying the established test under article 19(6) to determine whether the impugned statutory restrictions are reasonable and in the interests of the general public.
Key steps in the court's analysis, drawn from the opinion:
- The court observed that Article 14 was raised by the learned Magistrate but that the accused's counsel did not rely on Article 14, and the court found it unnecessary to pursue that line of argument for the Reference.
- The court framed the central legal question as whether s. 9(1) imposes reasonable restrictions in the interests of the general public, noting the settled principle (citing M.H. Quareshi) that reasonableness under Article 19(6) is to be judged by public interest rather than by the subjective inconvenience to the person affected.
- The court addressed the accused's contention that a shopkeeper should be allowed to serve customers personally on a weekly holiday so long as no employee works that day. The court rejected the premise that the right under Article 19(1)(g) is absolute and noted that Article 19(6) expressly permits reasonable restrictions for public interest.
- In examining the purpose and object of s. 9(1), the court held that the compulsory weekly holiday is aimed at protecting employees from exploitation and securing rest for employees, and that employees are a section of the general public; therefore the restriction is in the interests of the general public and reasonable.
- The court considered the statutory definitions: "employer" includes a person having charge of or owning an establishment and encompasses managers, agents or other persons acting in general management or control. The court noted arguments that this definition might sweep in sole operators but expressly declined to decide whether s. 9(1) reaches persons without employees in this Reference.
- The court also rejected the argument that letting employees work for other employers on the holiday undermined the restriction: that fact did not detract from the legislative object of securing a weekly holiday for employees of the shop concerned.
- References to prior decisions (Sadasivam; Abid Ali; Grandhi Mangaraju) were invoked to demonstrate that the court's conclusion was consistent with earlier judicial views upholding similar provisions.
Holding and Implications
HOLDING: The Reference is not accepted; the court held that the provisions of sections 9(1) and 9(2) of the C.P. and Berar Shops and Establishments Act, 1947 impugned by the accused are not ultra vires the State Legislature.
Implications:
- Direct effect on the parties: the legal challenge to the vires of ss. 9(1) and 9(2) was rejected; the charges brought under those provisions remain maintainable against the accused as framed in the prosecutions described in the Reference.
- Broader implications: the opinion states its conclusion in conformity with existing High Court and Supreme Court authority cited in the text; the court did not purport to lay down any novel or broader precedent beyond endorsing the validity of the contested provisions as applied to an employer assisted by employees. The court expressly did not decide whether the provisions apply to a person running a shop entirely alone without employees.
S.T Desai, J.:— This is a Reference under s. 432 of the Code of Criminal Procedure by the learned Magistrate, First Class, Nagpur, and the Reference arises out of two prosecutions launched against one Jawadekar who runs a sweetmeat shop under the name “Satari Pedha Shop” on the Sitabuldi Main Road in the city of Nagpur. In Criminal Case No. 1144 of 1958, the prosecution alleged that the Inspector of Shops and Establishments, Nagpur, visited the shop of the accused on December 30, 1956, at 10 a.m and found the accused selling sweetmeats to a number of customers with the help of his employee Govinda. December 30, 1956, was a weekly close day. In Criminal Case No. 1144-A of 1958, the prosecution alleged that the Inspector of Shops and Establishments, Nagpur, found the accused carrying on the business of his shop with the help of his two employees, Govinda and Feru, on December 9, 1956, which was a weekly close day. The accused was charged under the provisions of ss. 9(1) and 9(2) of the C.P and Berar Shops and Establishments Act, 1947, as amended by the Act of 1955.† Section 32 of the Act lays down penalties for offences under the Act and the relevant part of it is as under:
“32. (1) Any employer who contravenes the provisions of sections 4-A, 5, 7 to 22, 24 to 26 and 35 shall, on conviction, be punishable with fine which may extend to fifty rupees for the first offence and to five hundred rupees for every subsequent offence after his conviction for the first offence.”
2. Before we examine the contentions raised on behalf of the accused and the view expressed by the learned Magistrate in making the Reference, it will be convenient to set out some other provisions of the Act which are relevant for the purpose of this reference. Sections 9(1) and 9(2) of the Act are as under:
“9. (1) Every shop shall remain closed on one day of the week. The employer shall fix such day at the beginning of the year, notify it to the inspector and specify it in a notice prominently displayed in a conspicuous place in the shop. The employer shall not alter such day more often than once in three months, shall notify the alteration to the inspector and make the necessary change in the notice in the shop.
(1-A) …
(2) It shall not be lawful for an employer to call an employee at, or for an employee to go to his shop or any other place for any work in connection with the business of his shop on a day on which such shop remains closed.”
3. Section 2(5) of the Act lays down:
“‘employer’ means a person having charge of, or owning an establishment to which this Act applies and includes the manager, agent or any other person acting in the general management or control of such establishment;”
4. The Act also defines the expression “person employed” in s. 2(13). The relevant part of that definition is:
“‘person employed’ means—
(i) in the case of a shop, a person wholly or principally employed in the shop in connection with the business of the shop, whether on monthly, daily or contract basis, and includes apprentice.”
5. It appears that, before the learned Magistrate, preliminary objections were raised as to the constitutionality inter alia of the provisions contained in ss. 9(1) and 9(2) which we have set out above. The learned Magistrate has expressed the view that those provisions are ultra vires the Constitution as being beyond the competence of the State Legislature. That view is founded on the provisions of arts. 19 and 14 of the Constitution, and he has pointed out that the impugned provisions militate against the constitutional guarantees contained in those articles. It has been argued before us by the learned Special Government Pleader that there is nothing in the language of ss. 9(1) and 9(2) of the Act which can be said to contravene the constitutional safeguards laid down in arts. 19 and 14 of the Constitution. It is difficult to see how art. 14 can have any bearing on the case before us and it will not be necessary to deal on that part of the reference in view of the fact that Mr. Padhye, learned counsel for the accused, has not sought to found any argument on that article. The learned Special Government Pleader has relied on principles, now well settled, as a result of the numerous decisions of their Lordships of the Supreme Court under art. 19(6) of the Constitution. We shall presently refer to the same. The argument is that the restrictions laid down in ss. 9(1) and 9(2) of the Act are not hit by the provisions of art. 19 of the Constitution inasmuch as the provisions of law impugned by the accused are in the interests of the general public and contain reasonable restrictions on the exercise of the right conferred by sub-cl. (g) of cl. (1) of art. 19.
6. On the other hand, it has been argued by Mr. Padhye that the language of s. 9(1) is very wide and prevents a shopkeeper from serving his customers in person, that is, without the assistance of any employee, on one day in every week. The argument has been that it is the fundamental right of a citizen to carry on his trade or business on every day of the week and at any hour of the day or night without any restriction by the Government. The argument is patently unsound, because there is no absolute right to carry on trade or business guaranteed by the Constitution. The right to carry on trade or business indubitably is protected by the Constitution and is guaranteed by the Constitution, but the right carries with it certain natural obligations and necessary restrictions and it is those obligations and restrictions for which provision is made in cl. (6) of art. 19 of the Constitution which empowers the State to make any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by that article. Therefore, the short question that we have to determine is whether the restrictions imposed by s. 9(1) of the C.P and Berar Shops and Establishments Act, 1947, contain reasonable restrictions which are in the interests of the general public. It is a firmly established principle that a restriction to be reasonable must have a rational relation to the object which the Legislature seeks to achieve and must not be in excess of the object. The principles underlying art. 19(6), as we have already mentioned, are well established are well recognised. It will suffice to refer to the following passage from the judgment of the learned Chief Justice of the Supreme Court in M.H Quareshi v. State of Bihar . [1958] A.I.R S.C 731. (p. 744):
“Clause (6) of Art. 19 protects a law which imposes in the interest of the general public reasonable restrictions on the exercise of the right conferred by sub-cl. (g) of cl. (1) of Art. 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-cl. (g) is expressed in general language and if there had been no qualifying provision like cl. (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.”
7. Now, the whole argument of Mr. Padhye before us has been that the restriction imposed by s. 9(1) of the C.P and Berar Shops and Establishments Act, 1947, is unreasonable because it deprives the accused of his right to carry on business by himself on a day on which his employees cannot be asked to work in the shop. It is said that there is no reason why an employer cannot open his shop and personally serve customers on the weekly holiday if he takes care to see that no employee is permitted to work in the shop on that day. This argument is obviously based on the assumption that the right guaranteed by sub-cl. (g) of cl. (1) of art. 19 of the Constitution is an unqualified and absolute right. The answer to the argument is furnished in the passage from the judgment of the learned Chief Justice of India quoted by us immediately above. Of course, to the employer, the restriction is bound to seem irksome and unreasonable. But the question is not to be decided on that basis. What we have to see is “Is the restriction imposed by the impugned legislation a reasonable restriction—a restriction which is in the interests of the general public?” In this Reference, we are dealing with the case of an employer who is alleged to have opened his shop on a holiday meaning thereby a day on which he was by operation of s. 9(1) bound to keep it closed and on which day he was deriving the assistance from his employees in serving his customers. Employees also are members of the general public and the legislation, which is intended to secure a weekly holiday for employees in every shop, it cannot be gainsaid, is a reasonable restriction on the right of the employer and also is in the interests of the general public.
8. Then it is said by Mr. Padhye that a person cannot be deprived from earning his livelihood so long as he does not act against the interests of the employees. This is more or less the same argument couched in different language and the answer to this has already been given by us. It has also been urged that the Act leaves it open for an employee to go and do some work with another employer on the holiday, and that being so, there is no reason why the regular employer should not be allowed to open his shop on the holiday and work personally in the shop and serve his customers. The analogy is obviously unsound. The Legislature does not prevent an employer from carrying on any business or activity other than that of the shop on the holiday. But the object of the section and the scheme of the Act make it abundantly clear that s. 9(1) is enacted to give protection to the employees and also to see that they are not exploited by unscrupulous employers. That by itself would seem to be a consideration and purpose which would make the restriction on the employers reasonable. The compulsory holiday and closing of the shop would be in the interests of the general public since the employees are a section of the general public.
9. It is to be noticed that ss. 9(1), 9(2) and 32(1), the provisions of which we have already set out, speak of an employer and in the case before us we are dealing with an employer. The expression “employer” has been defined to include a person having charge of, or owning an establishment to which the Act applies and includes the manager, agent or any other person acting in the general management or control of such establishment. That definition would not apply if there is anything repugnant in the subject or context in which it has to be read. We have made this observation at this stage because one of the arguments canvassed by Mr. Padhye. was that s. 9(1) if read with that definition is in such wide terms that it would apply to the case of a business-man who did not have any employee working in his shop and was alone conducting his shop and serving his customers. The argument ran that in such a case it would be most unreasonable to restrict him from carrying on his business for all seven days of the week and to compel him to close his shop for one day in a week. It was said that it should be a matter of his choice as to when if at all he should observe a holiday and when he should not and it would be unreasonable on the part of the Legislature to compel him to take a holiday once a week. It may be that s. 9(1) which speaks of an “an employer” may not reach any such case. But we do not intend to express any opinion on the same since, in this Reference, we are not called upon to decide that point. While dealing with the question of the definition of “an employer” in the Act, we may also point out to what their Lordships of the Supreme. Court observed in the context of an artificial definition in Hariprasad shivshankar v. A.D Divelhar.2 It was observed by the Supreme Court:
“An artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined.”
10. As already mentioned, we are concerned in this Reference with the case of an employer who, it is alleged by the prosecution, had kept his shop open on days on which he should have kept it closed and who was helped on those days in the conduct of his business by his employees.
11. The charges against him are under ss. 9(1) and 9(2) of the C.P and Berar Shops and Establishments Act, 1947, and the charge under s. 9(1) relates to a default on his part to keep the shop closed on a weekly holiday as required by the provisions of that section. We are only called upon to consider the vires of the section so far as it relates to an employer. We are unable to see anything in the section which is repugnant to or violates the constitutional guarantee contained in art. 19(1)(g) read with art. 19(6) of the Constitution.
12. We find that the view which we take of the matter is also the view expressed in Sadasivam v. State of Madras . [1957] A.I.R Mad. 144. and in Abid Ali v. State of U.P . [1958] I.L.L.J 257. and Grandhi Mangaraju v. Labour Inspector.5 The last two decisions are of the High Court of Allahabad and the High Court of Andhra Pradesh.
13. We are unable to accept the Reference as, in our opinion, the provisions of ss. 9(1) and 9(2) impugned by the accused are not ultra vires the State Legislature.
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