iminal Appeal No 80 of 1953
Appeal by Special Leave granted by the Supreme Court by its order dated the 9th February 1953 from the Judgment and Order dated the 23rd September 1952 of the High Court of Judicature at Bombay in Criminal Appeal No 828 of 1952 arising out of the Judgment and Order dated the 27th March 1952 of the Court of Stipendiary Magistrate Ahmedabad in Summary Case No 3029 of 1954
Rajni Patel and M section K Sastri for the appellant
M C Setalvad Attorney General of India and Porus A Mehta and P GGokhale with him for the respondent
October 29
The Judgment of the Court was delivered by BOSE J
This case is unimportant in itself for a small fine of Rs 50 Rs 25 on each of two counts has been imposed for a couple of breaches under section 52 f of the Bombay Shops and Establishments Act 1948 read with rule 185 and 6 of the Rules framed under 888 the Act
But the question involved is of general importance in the State of Bombay and affects a large number of similar establishments so in order to obtain a clarification of the law this has been selected as a test case
The appellant is the owner of a small establishbment called the Honesty Engineering Works situate in Ahmedabad in the State of Bombay
He employs three workers
He does business in a very small way by going to certain local mills collecting orders from them for spare parts manufacturing the parts so ordered in his workshop delivering them to the mills when ready and collecting the money therefor
No buying or selling is done on the premises
The question is whether a concern of this nature is a shop within the meaning of section 227 of the Act
The learned trying Magistrate held that it was not and so acquitted
The High Court on an appeal against the acquittal held it was and convicted
It is admitted that the appellant maintains no leave registers and gives his workers no leave books and it is admitted that the Government Inspector of Establishments discovered this on 12th January 1951 when he inspected the appellant s works
If his establishment is a shop within the meaning of section 227 he is guilty under the Act if it is not he is not guilty
Shop is defined as follows in section 227  Shop  means any premises where goods are sold either by retail or wholesale or where services are rendered to customers and includes an office a store room godown warehouse or work place whether in the same premises or otherwise mainly used in connection with such trade or business but does not include a factory a commercial establishment residential hotel restaurant eating house theatre or other place of public amusement or entertainment
As we have said it is admitted that no goods are sold on the premises and it is also admitted that no services are rendered to customers there for the manufacture of spare parts for sale elsewhere cannot be regarded as services rendered
 889 The learned Attorney General contends that the definition should be read as follows Shop includes a work place mainly used in connection with such trade or business  He says that the word such in the phrase such trade or business relates back to the opening words of the definition which read  any premises where goods are sold
 He argues that the emphasis is on the words goods are sold and not on the word premises because a trade or business relates to the buying and selling of goods and is not confined to the premises where that occurs
He admits that the main portion of the definition which relates to premises where goods are sold cannot exclude the Premises element and that unless there are premises on which goods are sold the main portion of the definition cannot apply eg in the case of a street hawker or of a man who totes his goods from house to house and sells them at the door
But he contends that the main definition is extended by including in it matter which would not be there without the words of extension and in that portion the em phasis ceases to be on the premises and shifts to the nature of the business provided there is a business of selling any work place wherever situate mainly used in connection with it will fall within the definition
The other side relies on the ejusdem generis rule
The argument runs that the trade or business contemplated by the main portion of the definition is not any business of selling wherever and however conducted but only those trades where the selling is conducted on defined premises
The learned counsel contends that the very idea of a shop in that connotation betokens a room or a place or a building where goods are sold
The rest of the definition merely links on the main definition ancillary places such as store rooms godowns work places etc which are mainly used in connection with the business and business means the kind of business defined in the earlier part of the definition that is to say not business in general nor even the business of selling in general but that portion of the business Of Selling which is confined to selling onsome defined premises
To illustrate this graphically the 890 business of selling in general may be regarded as a big circle and the business of selling on defined premises as a small portion which is carved out of the larger whole
The second part of the definition is linked on to the carved out area and not to the circle as a whole
The word such confines what follows to what has gone before and what has gone before is not the trade of selling in general but only that part of the trade of selling which is carried on defined premises
Counsel argues that there is no justification for ignoring the limitation which the Legislature has placed on the main portion of the definition and holding that such relates to a much wider classification of selling which the main portion of the definition not only does not envisage but has deliberately excluded
We think that as a matter of plain construction this is logical and right
The learned Attorney General went on to contend that even if this is a possible view his view is also tenable and therefore when we have two possible interpretations we must choose the one which best accords with the policy of the Act
Taking us through the Act he pointed out that this is a piece of social legislation designed partly to prevent sweated labour and the undesirable employment of women and young children and partly to safeguard the health and provide for the safety of workmen and employees
He con tended that this object would be partly frustrated if small establishments of this kind are placed outside the purview of the Act for their number is very large and the persons employed in them are entitled to and require just as much protection as those more happily placed in larger concerns
We have considered this carefully and are of the opinion that the fear is groundless because there is express provision in the Act for such contingencies
Under section 5 the State Government can by mere notification in the Official Gazette extend the Act to any establishment or class of establishments or any person or class of persons to which or whom the Act or any of its provisions does not for the time being apply In our opinion the Legislature did not intend to rope 891 in small establishments of this kind in the first place but reserved power to the State Government to do that when desirable by the very simple process of notification in the Official Gazette
In reaching this conclusion we are influenced by the policy of the Central Legislature on an allied topic
We do not intend to break the general rule that points to the undesirability of interpreting the provisions of one Act by those of another passed by a different Legislature but as we have already decided the question of construction and interpretation and are now considering only the general policy of the State Legislature we deem it right to view the matter in its larger aspect for the special reasons we shall now enumerate
Now the Central Act the Factories Act of 1948 was passed on the 23rd of September 1948
The Bombay Act though entitled Act LXXIX of 1948 was not passed till the following year namely on 11th January 1949
The Bombay Legislature had the Central Act in mind when it passed its own legislation because section 227 says that a shop shall not include a factory and section 29 defines a  factory  as any premises which is a factory within the meaning of section 2 of the Central Act or which is deemed to be a factory under section 85 of that Act
Under the Central Act section 2m no establishment can be a factory unless it employs more than ten workmen or unless it is artificially converted into a  factory  within the meaning of this definition by a notification in the Official Gazette
Had it not been for the fact that the appellant employs less than ten workmen his concern would have been classed as a factory under the Central Act and would then have been excluded from the definition of shop in the Bombay Act for the appellant carries on a manufacturing process in his workshop with the aid of power that is not disputed
The Central Legislature undoubtedly had the intention of excluding small concerns like this from the purview of the Central Act except where Government decided otherwise and as there is this reference to the Central Act
on this very point in section227 we think
 in view of the way that section 227 is worded that Was also the intention of the Bombay Legislature 892 Therefore even on the assumption of the learned Attorney General that two interpretations of section 227 are possible we prefer the one which in our opinion better accords with the logical construction of the words used
The learned High Court Judges were influenced by matters which we consider inconclusive
The appellant applied for registration under the Bombay Act and in the statement made under section 7 he called his establishment a workshop and described the nature of his business as a  factory 
The learned Judges considered that this imported an admission that his establishment was a  shop  because of the use of the word shop in workshop
This might have raised an inference of fact against the appellant had nothing else been known but when the facts are fully set out as above and admitted the appellant s opinion about the legal effect of those facts is of no consequence in construing the section
No estopped arises
The appellant explained that the matter seemed doubtful so to be on the safe side and avoid incurring penalties for non registration should it turn out that his concern was hit by the Act he applied for registration
It is to be observed that though he applied on 12th April 1949 he was not registered till 4th May 1950 and the certificate was not given to him till 8th January 1951
The present prosecution was launched on 4th April 1951
Government itself seems to have been in doubt
However that is neither here nor there
What we think was wrong was placing of the burden of proof on the appellant in a criminal case because of a so called admission
The learned High Court Judges also advert to the fact that though the appellant s concern was registered as a shop he made no protest and did not have recourse to section 73 of the Act
We do not think section 73 has any application
The appeal is allowed
The conviction and sentence are set aside and the judgment of the learned trying Magistrate acquitting the appellant is restored
The fines if paid will be refunded


Summary:
The appellant the owner of a small establishment in Ahmedabad employs three workers does business in a very small way by going to certain local mills collecting orders from them for spare parts manufacturing the parts so ordered in his workshop delivering them to the mills when ready and collecting the money therefor
No buying or selling is done on the premises
Hold that a concern of this nature is not a shop within the meaning of section 227 of the Bombay Shops and Establishments Act 1948