No 164 01 1958
Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights
N C Chatterjee and Naunit Lal for the petitioners
N section Bindra and D Gupta for the respondent
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 article 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 ie 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 petitionany 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 article 196 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 13 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 section 14 enacted 14
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 2iv 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 2v 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 sections 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 section 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 
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
iiThe 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 section 71 of the Act and both the petitioners without regard to the hours for the opening and closing of the establishments under section 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 sections 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 section 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 section 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 con sumption 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  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 wer e 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 type writing
vide Punjab Government notification No 6567
S Lab
581737 RA dated June 1 1958 3all booking offices of the Transport vide Punjab Government notification No 6147 5815 C Lab 581741 RA dated June 1 1958
 2The second category of cases are those covered by the second and third provisos to section 9
Action has been taken under the third proviso to section 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 1establishments dealing in timber manufacture of furniture tents supply of furniture or tents on hire cycles or their repairs or painting or dyeing 2establishments 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 producersvide Notification No 6567
S Lab 581735 RA dated June 1 1958 3 Those outside section 4 and which are not covered by notifications under the provisos to section 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 article 1 section 101 of the U section 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 vs The State of Punjab 1 judgment on which was delivered on November 11 1960
The provision there impugned was section 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 section 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 thi s purpose would in our opinion be clearly saved by article 196
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  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


Summary:
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 section 9 of the Act no establishment shall save otherwise provided by the Actopen 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 section 71 or the hours for the opening and closing of the establishments under section 9 and that 853 consequently these provisions imposed unreasonable restric tions on their fundamental right to carry on their trade or business under article 191e 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 ss7 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 vs The State of Punjab   followed