LAWS(CAL)-1988-9-4

HONG KONG BANK HONG KONG AND SHANGHAI BANKING CORPORATION Vs. ADDITIONAL CHIEF INSPECTOR SHOPS AND ESTABLISHMENT GOVT OF WEST BENGAL

Decided On September 09, 1988
HONG KONG BANK, HONG KONG AND SHANGHAI BANKING CORPORATION Appellant
V/S
ADDITIONAL CHIEF INSPECTOR, SHOPS AND ESTABLISHMENT, GOVT. OF WEST BENGAL Respondents

JUDGEMENT

(1.) The Court : In this writ petition the petitioner has challenged a notice dated 24th May, 1988 issued by the Inspector, Shops & Establishments Directorate, Government of West Bengal Calcutta. The said notice inter alia provides that in course of inspection on 22.5.88 at 11-00 A.M. at commercial establishment of the Hong Kong Bank located at 31; B.B.D (South) Calcutta-1 under Hare Street Police Station, the Inspector detected the following deviations from/infringement of sections 5(1)(9) and 17(1)and Rules 48 of the West Bengal Shops & Establishment Act, 1963 and West Bengal Shops & Establishment Rules, 1964 respectively by rendering service to customers on a full closing day i.e. on Sunday dated 22.5.88 at about 11-00 A.M. by automatic machine and by not producing the Visit Book on demand. It was also mentioned in the said notice that necessary action under section 21(1) of the West Bengal Shops & Establishment Act, 1963 and Rule 51 of the West Bengal Shops & Establishment Rules, 1964 for the aforesaid infringement is being taken.

(2.) It is the case of the writ petitioner that the petitioner as a bank is keen to introduce technological improvements for the benefits of its staff, customers and the community at large and with the same end in view the petitioner bank during the year 1987 embarked on a process of computerizing of its office and branches in Calcutta. In nine branches the computerisation was completed in the year 1987. As an extension of the computerised system the petitioner bank with the express permission of Reserve Bank of India launched installation of the automated teller machine at several of its branches all over the country. In Calcutta the petitioner has two such automated teller machines (ATMs) one such ATM has been installed in the Gariahat Branch of the bank at Ekdalia Road, Calcutta whereas the other machine has been installed at the petitioner's Dalhousie Square Branch at 31, B.B.D. Bag, Calcutta. These two ATMs were installed on 29th December, 1987 'and 3rd November, 198:7 respectively petitioner has also scheme to install two more ATMs at its Shakespeare Sarani Branch and Howrah Branch during the course of the year 1988. It has been stated in the petition that the ATM is essentially a machine which carries out a few banking transaction for individual customers. It accepts cash, allows withdrawal of cash, accepts request for cheque book, statement of accounts and can give details of the last balance in the customers' account. The machine is accessible by a plastic card similar to a diner's card and is called Electronic Teller Card (E.T.C.). This machine can be used during banking hours as well as after banking hours. No man power (staff or officer) is required to operate the machine. Essentially it is a safe inside which details of customers' balance, loading of the safe with money and the other relevant works are done during the banking hours and thereafter the machine operates independently. The said service which the said machine provides is essentially to support the emergency needs of the customers. The withdrawal limit at present is maximum of Rs. 3000/- every day and is intended to meet the certain emergency situation like medical attention etc. of the concerned customers. It is also stated in the petition that in the operational side after a customer draws money or carries any of the aforesaid functions through the said ATMs the actual debit to his account invariably takes place on the next day only when the bank opens for normal business. Also action is taken on request for statement/cheque books on the next de and the machine really acts as a post box for such a request The Reserve Bank of India studied the entire operation as aforesaid and thereafter accorded approval for its installation by order dated 26th June, 1987. It has been alleged in the petition that in or about April 1988 the respondent No. 3 visited the petitioner's branch at 31, B.B.D. Bag, Calcutta and enquired about the function of the said ATMs. The petitioner was called upon to meet the respondent Nos. 1 and 2 and explain the manner in which the said machines functions.. Accordingly on 8th April 1988 the officers of the petitioner consisting of the Manager, Branch Operation at the Calcutta main office met the respondent No. 2 and explained to him the entire facts and circumstances. By letter dated 27th April 1988, however, the respondent No. 1 called upon the petitioner to comply with section 5(1) of the said Act or apprise the Chief Inspector, Shops and Establishments of the position as per discussion held on 8th April, 1988 at the earliest and threatened the petitioner that in default thereof suitable legal action would be taken. By letter dated 29th April, 1988 the petitioner drew the attention of the respondent No. 1 to its aforesaid letter dated 22nd April, 1988 whereby the position relating to the functioning of the ATMs and the automated computerised banking system was duly explained. Thereafter on 22nd May, 1988 the respondent No. 3 again visited the petitioner's branch at 31, B.B.D. Bag (South) Calcutta and alleged infringement of section 5(1)(a) and sanction 17(1) of the said Act and Rule 48 of the West Bengal Shops and Establishment Rules, 1964. The said respondent also issued an inspection note which threatened the petitioner that necessarily action under section 21(1) of the said Act and Rule 51 of the said Rule would be taken against the petitioner for the aforesaid illegal infringement. It was also alleged in the said inspection note that such infringement has taken place because the petitioner was rendering service to the customer on a full closing day, i.e. on Sunday the 22nd May, 1988 at about 11-00 A.M. by automatic machine and by not producing the book on demand. Thereafter the petitioner's officers met the respondent No. 3 and duly produced before him the Visit Book and other documents as required under section 17(1) of the said Act and Rule48 of the said Rules whereupon the said respondent was duly satisfied that there was no violation of section 17(1) of the said Act and/or Rule 48 of the said Rules. However, the respondent continued to insist that by rendering service to customer on full closing day, i.e. on Sunday by the said machine the petitioner has allegedly violated the provisions of section 5(1) of the said Act; It has also been alleged in the petition that the petitioner has come to learn that the respondents are taking steps for filing a complaint before a Magistrate under section 22 of the said Act for taking action under section 21(1) of the said Act against the petitioner and/or its officers for operating the said ATMs. In fact it has been mentioned in the said inspection note being Annexure "I" to the petition that necessary action. would be taken against the petitioner under section 21(1) of the West Bengal Shops and Establishment Act, 1963 and ale 51 of the West Bengal Shops and Establishment Rules, 1964 for the alleged infringement mentioned therein.

(3.) The petitioner being aggrieved filed the present writ petition and obtained an interim order restraining the respondents from taking any action pursuant to the said inspection note. The learned Advocate for the petitioner submitted that the installation of the automated teller machine and the operation thereof cannot amount to any violation of any provision of the West Bengal Shops and Establishment Act. The learned Advocate-submitted that the said inspection note and the proposed action under the same is absolutely arbitrary and illegal. Mr. Chakraborty, learned Advocate further placed before the Preamble to the West Bengal Shops and Establishment Act and the different sections thereof being section 11, section 12, section 21, section 22 and Rules under the said Act to show that the main object of the Act is to provide protection and bene5t to the employees so that they may not be over burdened with work beyond office hours or on any closing day. Mr. Chakraborty further submitted that the said machine operates automatically and it is the customer who really works on the said machine had no staff or officer is involved therein. It has also been submitted that on a closing day the bank will actually remain closed because the machine is fixed at the outer wall of the bank premises. No staff or officer need be present at the bank and in fact are not present and will not be present to operate the said machine. In view of the same it cannot be said that the bank remains open on any closing day and there is any infringement or violation of the West Bengal Shops and Establishment Act. It has also been contended that the provision in the said Act can have no application whatsoever to the functioning of the said machine. The preamble to the said Act clearly provides that the said Act has been framed to regulate holidays, hours of work, payment of wages and leave of persons employed in the shops and establishments. The said machine according to the learned Advocate does not require any man power or any kind whatsoever and rate automatically. Therefore it has been contended that the hours of work or payment of wages or leave to persons employed to operate the said ATMs cannot and does not arise. As a matter of fact, as aforesaid whatever manual function is required to be done on the said AT'Ms are done during the working hours on working days. During all other hours the said ATM worked independently and automatically and no person is evolved m any manner whatsoever with the functioning thereof. Referring to section 5(1) of the said Act Mr. Chakraborty argued that the end Act provides that in each week every shop or establishment shall remain entirely closed at least one day and a half next proceeding or next following such day. There is no dispute that the entire office and the bank premises upon which the said machine is installed remain entirely closed on Sunday and half closed on Saturday. The said machine has been installed outside the wall of the bank premises and can be operated without even entering the bank premises by a customer. In the circumstances Mr. Chakraborty argued that the question of violation of the provision of section 5(1)(a) of the said Act or any other provision of the said Rule being infringed cannot or does not arise. The learned Advocate also referred to sections 2(5), 2(15), section 5(1), section 6, sections 7, 11, 12, 21, 22 and Rule 22 .of the said Act and submitted that all these provisions together with the preamble show that the Act is intended to be meant as a piece of beneficial legislation for the purpose of protecting the interest of the persons employed m the establishment or in the shop particularly relating to their hours of work, wages, holidays, leave etc He submitted that inasmuch as the said machine installed in the factory works automatically no one employed in the bank will be affected in any event relating to holidays, hours of work, payment of wages, leave and as such there is no scope for operation of the said Act because of the process of works the said machine which will operate automatically and the bank really remains closed in terms of section 5(1) and every person employed in said Bank is allowed holiday in terms of section 5(1)(b) of the Act. In fact the persons employed in the bank are getting holidays in terms of section 5 of the said Act. The learned Advocate for the petitioner referred to section 5(1)(a) and (5) and submitted that the said section should be interpreted in a pragmatic manner. He submitted that the aforesaid section really contemplates that the premises of the shop or commercial establishment must be closed and there should be holidays for the employees. He submitted that there cannot be any dispute that the premises of the bank remains closed and the employees are also getting holidays in terms of the said section. In the connection the learned Advocate for the petitioner relied upon a judgment of the Supreme Court in the case of S. P Jain and Others v. Krishna Mohan Gupta and Others reported in AIR 1987 Supreme Court 222 In paragraph 18 of the said report at page 227 it was observed by the Supreme Court that "law should take pragmatic vow of the matter and respond to the purpose for which it was made and alia take cognizance of the current capabilities of technology of life-style of the community. It is well settled that the purpose of law provident a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Susching Schmitz Pvt. Ltd.'s case(supra) that legislative futility is to be ruled out so long as interpretive possibility permits". learned Advocate also referred to the judgment in the case of H. Shivarao and Another v. Cecilia Persia and Others reported in A1R 1987 Supreme Court 248. In paragraph 5 of the said judgment at page 250 of the said report the Supreme Court observed as follows: