STATE Vs. BRIJ LAL GULATI

JUDGEMENT

(1.) The respondents were prosecuted under Section 27 of the U. P. Shops and Commercial Establishments Act 1947, for breach of Rules 13 and 15 of the Rules on the allegation that the respondent Brij Lal Gulati was the proprietor and the respondent Ved Prakash was the manager of the Railway Booking Agency Shaheedganj, Saharanpur. They had neither maintained nor produced for inspection on demand by Sri O.N. Avasthi, Inspector of Shops and Commercial Establishments, Saharanpur, the prescribed registers of attendance and wages in Form E, the register of leave in Form F, the register of fine and deduction in Forms D and C and the Inspection Book and they also did not display the close day and weekly holiday notices in Forms A and B and the abstract of the Act and the Rules in the premises on 14th of March 1958. The learned magistrate who tried the respondents acquitted them by his order dated 30-8-1958. It is against that order of acquittal that the present appeal has been filed by the State under Section 417 Cr. P. C. The learned magistrate accepted the plea of the respondents and held, firstly, that the booking agency did not come within the purview of the Shops and Commercial Establishments Act (hereinafter referred to as the Act) and secondly that the respondents were governed by the Payment of Wages Act and not by the Act. I have heard Mr. B.N. Sapru for the State and Mr. Asif Ansari for the respondents. Mr. Ansari has supported the judgment of the trial court on the grounds mentioned in it and has further added that railways being a central' subject, the State legislature could not have either intended to or was competent to have legislated in respect of a railway agency. The Act was passed by the U. P. legislature under the provisions of the Government of India Act, 1935 (hereinafter referred to as the 1935 Act). Its long title runs as follows:-

(2.) It is open to an owner either to engage labour on the basis of daily or monthly wages or an amount fixed by contract. The contractor in that case is the employee or agent of the owner and does not become the owner himself. The agreement clearly shows that the owner of the city booking agency is the railway administration. Clause II of the agreement which runs as follows makes the point still more clear:

(3.) After having read the various clauses of the agreement I have no manner of doubt in my mind that the business of the agency belongs to the railway administration and the respondent No. 1 is only an agent or employee of the railway administration, and instead of being paid a monthly salary or daily wage his remuneration is adjusted on the basis of commission, calculated at the rate of 2 1/2 per cent of the earnings at the agency, I must, therefore be held that the agency is an office of the railway. The Northern Railway like other railways in the country belongs to the Central Govt. The booking agency therefore to my mind is an office of the Government within the meaning of Clause (c), of Section 4 of the Act. That being so the provisions of the Act would not apply to the present case.