Ramdhandas & ANR Vs. The State of
Punjab [1961] INSC 146 (10 April 1961)
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 restrictions 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.
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.
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
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 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 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 consumption 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 were 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 typewriting.
(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/ 5815C-Lab-58/1741-RA, dated June 1, 1958)." (2)The second
category of cases are those covered by the 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 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 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 (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.
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