SHANTILAL POPATLAL KOTAK Vs. RAMNIKLAL MOHANLAL ASHRA

JUDGEMENT

(1.) This appeal is directed against an order of acquittal passed by the learned Judicial Magistrate First Class Rajkot in Criminal Case No. 1084 of 1967. Respondent No. 1 was prosecuted under sec. 11(1)(a) and sec. 52 of the Bombay Shops and Establishment Act 1948 hereinafter referred to as the Shops Act on the charge of having kept his shop open beyond 8-30 p.m. The Pact that the shop was kept open after 8-30 p.m. is not seriously in dispute. What is in dispute is whether the provisions of the Shops Act are applicable to the premises where respondent No. 1 is carrying on his cloth printing activity. It appears that respondent No. 1 employs 9 to 10 employees for Printing sarees on the premises in question. It is not clear as to whether the sarees which are printed on the premises are printed on the cloth belonging to the customers or whether the same are printed on cloth belonging to respondent No. 1. That a number of employees are employed and the work of printing sarees is carried on is not in dispute. According to the prosecution once it is shown that this activity is carried on upon the premises the Shops Act would be applicable. On the other hand the case of the defence is at the activity carried on in the premises does tot attract the definition of shop given in the Shops Act and that the premises cannot be called shop. The trial Court has taken the view that it is not a shop within the meaning of the Shops Act and has acquitted respondent No. 1. Thereupon the petitioner the shops and Establishment Inspector of Rajkot Nagarpalika has approached this Court on obtaining leave to appeal under sec. 417(3) of the Code of Criminal Procedure.

(2.) Following aspects relating to the sarees printing business that may be carried on upon the premises through paid workers must by clearly grasped and kept before the mental screen for resolving the problem:-

(3.) With regard to the second question as to whether the premises where such an activity (Type A job) is carried on (if the printing work is done according to the design supplied by the customers on the cloth supplied by the customers) would attract the definition of shop the matter requires to be given anxious consideration The ratio of Kalidas Dhanjibhai's case will not apply because what the employer is doing is not his own work. What he is doing is to cater to his customers and render the service of printing with the help of the employees. When the employer subjects the cloth belonging to himself to the printing process the finished product is his own. When he subjects the cloth supplied by the customer to the printing process the finished product is the product of the customer which has undergone processing at the premises. That is to say into the unprinted cloth belonging to the customer has gone in the skill the labour the artistic talent and the ability of the employees engaged by the employer The question which may then be legitimately posed is:- to whom have the services been rendered ? And the answer to my mind is unequivocal. These services have been rendered to the customers albeit indirectly through the medium of the employer. The beneficiary of the service that is to say the labour skill and the artistic talent which has gone into the product is the customer for it has been employed on the unprinted cloth belonging to the customer. The services have therefore been obviously rendered for the benefit of the customer and to the customer. The argument of the learned counsel for respondent No. 2 that a service can be rendered to the customer only if he himself personally comes to the premises has merely to be advanced to be rejected. Unless it is the case of rending a personal service the personal presence of the customer is not at all necessary. If services are rendered for the benefit of the customer as per the order placed by the customer it is futile to contend that the services are not rendered to him merely because he himself has not personally come to the shop to place an order but has placed it by post or through a salesman. I am fortified in the view that I take by Homi J. Bhajiwala v. The State 62 B.L R. 1021 wherein a similar question raised its head before the Bombay High Court. Says V. J. Desai J. at page 1022 as follows:-