Manohar Lal V. The State  INSC
36 (23 May 1951)
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)
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).
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." Subsection
(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
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;
(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.
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 conviction 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 haberdashery,
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 Government of India
Act, 1935, was involved, was granted and that is how we come to be seized of
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 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 precautions for the general
safety of the public and those directly 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 impugned
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 establishments. Therefore, in so far as section 7 covers
establishments where labour is employed, it is undoubtedly intra vires. But it
was argued that the section can have no application 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 appellant, 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 manager 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
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 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 interpretation
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.
Agent for the appellant: Vidya Sagar.
Agent for the respondent: P.A. Mehta.