PASCHIMBANGA MAFASIL MISTANNA BABASHAI SAMITY Vs. STATE

JUDGEMENT

(1.) THE petitioner No. 1 is a Society registered under the provisions of Societies Registration Act. The petitioners No. 2 to 67 are carrying on business in the manufacture of Sweetmeats and various other items of food. The petitioner no. 1 has 2,000 members on its rolls including the petitioner Nos. 2 to 67 and it claims to represent all the sweetmeat manufacturers in whole of West Bengal except Calcutta and its neighborhood. The petitioner maintained in establishment wherefrom refreshments or light meals are served. Arrangements of maintaining supply of water and other drinks including tea, coffee, sarbat, etc. are also made in their establishment. The places where the petitioners carry on their sweetmeat business are not only used for sale of sweetmeats and they are also used for manufacture and production of sweetmeats and for rendering services to the customers for consumption of sweetmeats and other items of food manufactured and/or produced by the petitioners. The petitioners are registered under the West Bengal Shops and Establishment Act, 1963 (hereinafter referred to as the 'act' ). The prescribed authority under the Act granted registration certificate to the petitioners mentioning the establishments dealing in sweetmeats as "eating house" in most of the cases and registered them in Part III of the Register maintained by the respondent Nos. 4 to 7. The governor of West Bengal in exercise of power conferred by sub-section (2)of Section 4 of the said Act in supersession of the notification dated 14th may, 1970, issued a notification dated 5th November, 1974 exempting all classes of sweetmeat establishment situated in the areas to which the said Act applied, from the operation of clause (a) of sub-section (1) of Section 5 of the said Act in respect of weekly closure for one and a half day subject to the condition that the sweetmeat establishment enjoying the exemption shall remain entirely closed for one day in each week. Another notification was also issued under sub-section (4) of section 5 of the said Act on the same day, namely, 5th November 1974 specifying Monday as the day on which all classes of sweetmeat establishment situated in the area in which the said act applies shall be entirely closed with effect from the week commencing on the 6th November, 1974. The petitioners challenge the said notifications on the grounds that the business carried on by the petitioners being in the nature of public entertainment, the provisions regarding closure contained in section 5 (1) (a) of the Act cannot be made applicable and the sweetmeat establishments cannot be made to close each week on a specified day, namely, on Monday and accordingly, the notifications are illegal and without jurisdiction. Being aggrieved by the said notifications, the petitioners moved this court in an application under Article 226 of the Constitution and obtained the present Rule.

(2.) AN affidavit-in-opposition has been filed on behalf of the respondents and affirmed by Nalini Ranjan Sircar, the Assistant Secretary to the Government of West Bengal in the Department of Labour. It is stated therein that the premises which sell sweetmeats to customers, whether for consumption in the premises for such sale or not, are "shops" within the meaning of the Act and, as such, all the provisions of the Act including section 5 (1) (a) thereof are applicable to sweetmeat shop. The petitioners make and sell sweetmeats and such other items as are made and said by sweetmeat shop. Though customers are allowed to be served with sweets which are either sold or ready for sale and customers consume these products within the shop premises, that does not change the nature of the business the shops mainly carry on. These are essentially sweetmeat shops and cannot be treated as restaurants which are establishments for public entertainment under the Act which produce and sell mainly produce other than sweets. The petitioners' sweetmeat shops are "shops" within the meaning of Section 2 (13)of the Act and as such all the provisions of the Act are applicable to these shops. The notification dated 5th November, 1974 was issued in public interest in accordance with section 5 (4) of the act. Although under the Act, all shops and establishments are required to observe closure for 11/2 days in each week, but the Government, after considering the facts and circumstances of the case and the difficulties that might be faced by the sweetmeat shop keepers, was pleased to give a grace by which the sweetmeat shops, instead of observing closure for 11/2 days, are required to observe closure for one day only in a week, namely, on each Monday. The purpose of notification in question was in public interest to restrict consumption of milk by sweetmeat shops for one day only as to increase the supply of liquid milk or milks as such in the market for domestic consumption by the people, and in particular, for the sick people and the children of the entire areas of the State of West Bengal where the Act applies. The purpose was not only to augment consumption for the milk supply agencies of the government for people of Calcutta and its suburbs but also to make available in greater quantities for people also of the other areas of the State. If poor people cannot consume milk, the question of their suffering because of weekly closure of sweetmeat shops is still more a frivolous and unrealistic claim. By the enforcement of the notification in question regarding the closure of sweetmeat shops on each Monday, the public at large has been benefited. Actual position regarding alleged registration of sweetmeat shops as "eating house" is being verified and necessary actions will be taken in due course. If there is any recording of a sweetmeat shops as an eating house in the register or in the registration certificate under Rule 4 of the Rules framed under the Act, it should be corrected but any wrong representation of the nature of business carried on by sweetmeat shops will not make the notifications inapplicable to the sweetmeat shops of the petitioners.

(3.) TO appreciate the contentions of parties, it is necessary to set out some of the material provisions of the Act. In the preamble of the West Bengal shops and Establishment Act, 1963 it is stated "an Act to regulate holidays, hours of work, payment of wages and leave of persons employed in shops and establishments". Shop has been defined in section 2 (13) of the Act. "shop" means any premises used wholly or in part for the sale of services to customers or for the wholesale or retail sale of commodities or articles, either for cash or on credit and includes any offices, storerooms, godowns or warehouse, whether in the same premises or elsewhere, used in connection with such sale or with the storage of commodities or articles for the purpose of such sale and also includes such other class or classes or premises as the State Government may, after taking into consideration the nature of the work carried on there, by notification, declare to be shops for the purposes of this Act, but does not include an establishment".