SHAMBHU PRASAD Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The applicants, who are father and son and own a shop In which kerana business is carried on in the name "Shambhu Prasad Kerana Shop," have been convicted under Section 27 of the Uttar Pradesh Shops and Commercial Establishments Act, 1947, for not closing it on a Tuesday which Is the close day for it. There Is no dispute about the facts. It is admitted by the applicants that they are the owners of the shop, that Tuesday is a close day for it and that on the particular Tuesday they kept the shop open and carried on business. On these admissions they were convicted and were rightly convicted.

(2.) The conviction la challenged on the sole ground that the applicants do not employ any employee in the shop and that consequently they could not be convicted under Section 27. For this proposition they rely upon Abld Ali v. the State 1958-I L.L.J. 734 in which my brother Mulla observed on p. 736: It is a misapprehension that any shopkeeper who opens his shop on a close day is per se guilty of an offence under Section 10 of this Act and that only that shopkeeper who is also an employer, as defined in the Act, can be held guilty for opening his shop on a close day. In that case the accused was the owner of the shop ahd It was contended that he was an employer but my learned brother held the contention to be not maintainable and observed at p. 736: Employer by itself indicates that someone is employed by him and where there is no evidence that the owner of a shop had employed any workman, he does not become an employer, merely because he is an owner of a shop.; and referred to the preamble of the Act which is: It is expedient to provide for holiday and to regulate hours of employment and certain other conditions of employees in shops and commercial establishments. and to the provision of Section 4 of the Act laying down that nothing in it shall apply to persons occupying positions of a confidential, managerial or supervisory character, persons whose work is inherently intermittent, offices of Government or of local authorities, establishments for the treatment or the care of the sick, infirm, etc., and " members of the family of any employer."

(3.) With great respect to my learned brother I do not agree that one cannot be an employer of a shop unless there in an employee or that a person cannot be convicted under Section 27 of the Act unless he has employed employees in the shop.