STATE Vs. CHANDRA PRAKASH

JUDGEMENT

(1.) This is an appeal by Government against the acquittal of the accused who was charged with infringement of the provisions of S. 10 of the United Provinces Shops and Commercial Establishments Act of 1947 and Rr. 5 and 6 of the Rules made under the Act.

(2.) The accused is the owner of a commercial establishment engaged in Calico printing at Farrukhabad and his business is, to quote his own words, confined to entirely as an exporter abroad. On 20-12-1953, which was a Sunday, and a close day for the purposes of the UP Shops and Commercial Establishments 'Act, the establishment was found open and working. The prosecution contended that thereby the accused infringed S. 10 of the Act and read with Rr. 5 and 6 of the Rules, and the infringement was punishable Under Section 27 of the Act. The accused pleaded on the basis of a letter dated 18-12-1948, from the Chief Inspector of Shops and Commercial Establishments, UP, to the Secretary of the Calico and Silk printers, Farrukhabad that the labour employed by him in the establishment was employed on contract or piece rate system and therefore such an establishment was outside the purview of the Act. That plea found favour with the learned Magistrate; and the learned Magistrate, accordingly, acquitted the accused. In our opinion the view taken by the learned Magistrate was incorrect.

(3.) The preamble of the Act recites that it is expedient to make provision for the regulation of hours of work and certain other conditions of employment in shops and commercial establishments. S. 2 (3) provides that "commercial establishment" means any premises other than a factory or a shop wherein any trade or business is carried on for profit and includes journalistic and printing establishments and premises in which the business of banking, insurance, dealing in stocks and shares, brokerage or produce exchange is carried on or which are used as theatres, cinemas or for other public amusement or entertainment; and includes the clerical and other establishment of a factory whom the provisions of the Factories Act, 1934, do not apply. That this was a "commercial establishment" besides having been alleged and proved by the prosecution in this summary trial, was in effect admitted by the accused himself when he said that it is a shop where he carried on business of the export of Calico printing abroad. The accused no doubt used the word "factory" for this business, but the mere use of the word "factory" by him will not convert this concern from something other than a "commercial establishment" as contained in the Act. In any event, even if the contention were to prevail that this was a "shop" where trade or business of export abroad was carried on, it will come under the disability stated in S. 10 of the Act. That section lays down that every employer shall close his "shop" or "commercial establishment" not included in the Schedule on one day of the week, and such day shall be referred to as the close day. Sub-section (2) of that section provides: