KUNJU MOHAMMED Vs. LABOUR OFFICER

JUDGEMENT

(1.) THE petitioner, who describes himself as a petty shop owner, seeks to quash a notice issued by the Assistant Labour Officer, Alwaye, the first respondent herein, under S. 29 (1) of the Kerala Shops and Commercial establishments Act, 1969, hereinafter referred to as the Act, on the ground that he is not bound to exhibit the notice as stipulated by S. 11 of the Act. THE petitioner contends that he is running the shop himself and that he has no employees under him. THE first respondent issued a notice to him on 4-3-1974 asking him why action should not be taken against him for not exhibiting a notice specifying the day of weekly closure as enjoined by S. 11 of the Act. According to the petitioner, s. 11 applied only to shop owners who employed persons in the shop and did not apply to persons like the petitioner and therefore he was not bound to exhibit the notice as per S. 11 of the Act. THE first respondent thereupon instituted criminal proceedings against the petitioner before the Chief Judicial magistrate's Court to answer a charge under S. 29 (1) of the Act. THE present petitions are filed to quash the prosecution and to stay further proceedings in the Court below. Further contention raised by the petitioner is that S. 11 is violative of Art. 19 (1) (g) of the Constitution of India in that it infringed the right of the petitioner to carry on his trade and as such S. 11 is bad and a prosecution for violation of such a law cannot stand.

(2.) THE petitioner sought reliance for his first contention on the judgment of this Court rendered by Moidu J. in Crl. R. P. Nos. 519 and 526 of 1973. This petition originally came before one of us and as it was felt that the decision rendered by Moidu J. in Crl. R. P. Nos. 519 and 526 of 1973 needed re-consideration in view of two Supreme Court rulings, directly in point, which were not brought before Moidu J. , the case was referred to be heard by a Division Bench.

(3.) A kindred question arose for decision by the Supreme court in Ramdhandas v. State of Punjab (AIR. 1961 S. C. 1559 ). There the provisions contained in the Punjab Shops and Commercial Establishments Act, Act 15 of 1958, regarding limitation as to hours of work of employees and specification of opening and closing hours was attacked as violative of Art. 19 (1) (g) and outside the limitation prescribed by Art. 19 (6 ). The Supreme Court went in detail on the question and held that the limitation regarding the closing and opening hours was neither violative of Art. 19 (1) (g) nor beyond the power under Art. 19 (6) of the Constitution. The Supreme Court held that "the said provisions were designed for the interests 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) ". The Supreme Court also said that "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. "it is therefore necessary to guard against evasion of such legislation enacted deliberately to protect labour.