STATE OF BOMBAY Vs. V.M. JAWADEKAR

JUDGEMENT

(1.) THIS is a Reference under Section 432 of the Code of Criminal Procedure by the learned Magistrate, First Class, Nagpur, and the Reference arises out of two prosecutions launched against one Jawadekar who runs a sweetmeat shop under the name 'Satari Pedha Shop' on the Sitabuldi Main Road in the city of Nagpur. In Criminal Case No. 1144 of 1958, the prosecution alleged that the Inspector of Shops and Establishments, Nagpur, visited. the shop of the accused on December 30, 1956, at 10 a.m. and found the accused selling sweetmeats to a number of customers with the help of his employee Govinda. December 30, 1956, was a weekly close day. In Criminal Case No. 1144 -A of 1958, the prosecution alleged that the Inspector of Shops and Establishments, Nagpur, found the accused carrying on the business of his shop with the help of his two employees, Govinda and Feru, on December 9, 1956, which was a weekly close day. The accused was charged under the provisions of Sections 9(7) and 9(2) of the C.P. and Berar Shops and Establishments Act, 1947, as amended by the Act of 1955. Section 32 of the Act lays down penalties for offences under the Act and the relevant part of it is as under: 32. (1) Any employer who contravenes the provisions of Sections 4 -A, 5, 7 to 22, 24 to 26 and 35 shall, on conviction, be punishable with fine which may extend to fifty rupees for the first offence and to five hundred rupees for every subsequent offence after his conviction for the first offence.

(2.) BEFORE we examine the contentions raised on behalf of the accused and the view expressed by the learned Magistrate in making the Reference, it will be convenient to set out some other provisions of the Act which are relevant for the purpose of this reference. Sections 9(7) and 9(2) of the Act are as under: 9. (1) Every shop shall remain closed on one day of the week. The employer shall fix such day at the beginning of the year, notify it to the inspector and specify it in a notice prominently displayed in a conspicuous place in the shop. The employer shall not alter such day more often than once in three months, shall notify the alteration to the inspector and make the necessary change in the notice in the shop (1 -A).... (2) It shall not be lawful for an employer to call an employee at, or for an employee to go to his shop or any other place for any work in connection with the business of his shop on a day on which such shop remains closed. Section 2(5) of the Act lays down: 'employer' means a person having charge of, or owning an establishment to which this Act applies and includes the manager, agent or any other person acting in the general management or control of such establishment; The Act also defines the expression 'person employed' in Section 2(13). The relevant part of that definition is: 'person employed' means - (i) in the case of a shop, a person wholly or principally employed in the shop in connection with the business of the shop, whether on monthly, daily or contract basis, and includes apprentice.

(3.) IT appears that, before the learned Magistrate, preliminary objections were raised as to the constitutionality inter alia of the provisions contained in Sections 9(7) and 9(2) which we have set out above. The learned Magistrate has expressed the view that those provisions are ultra vires the Constitution as being beyond the competence of the State Legislature. That view is founded on the provisions of Articles 19 and 14 of the Constitution, and he has pointed out that the impugned provisions militate against the constitutional guarantees contained in those articles.