Case ID: 41

Judgment:
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. S.N. 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 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 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 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 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 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 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 A(i) 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.