ON Criminal Appeal No 11 of 1950
Appeal under article 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
SN Chopra for the respondent
May 23
The Judgment of the Court was delivered by Bose J
This is a criminal appeal against a convic tion under section 16 of the Punjab Trade Employees Act 1940 as amended in 1943 read with section 71
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 71 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 2i 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 haberdash ery 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 71 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 Govern ment of India Act 1935 was involved was granted and that is how we come to be seized of the matter
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 precau tions for the general safety of the public and those direct ly 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 im pugned 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 establish ments
Therefore in so far as section 7 covers establish ments where labour is employed it is undoubtedly intra vires
But it was argued that the section can have no appli cation 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 appel lant 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 71 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 manag er 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 Ai does not control section 7 1
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 interpre tation 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
Appeal dismissed


Summary:
Section 7 sub section
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
 Sub section 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 section 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 section 16 of the Act
It was contended on his behalf that section 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 section 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 section 7 of the Act was not ultra vires the matter could also be brought under item 27 in List III welfare of labour conditions of labour  ii clause j of section 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 section 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