JUDGMENT
Shyamal Kumar Sen, J.
1. 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. Bag (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 computerising 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, 1987 respectively. The 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 day 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 function. 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 Section 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 necessary 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 Rule 48 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 Rule 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 me 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 benefit 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 and 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 operate 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 mannual function is required to be done on the said ATMs are done during the working hours on working days. During all other hours the said ATMs work independently and automatically and no person is involved in any manner whatsoever with the functioning thereof. Refering to Section 5(1) of the said Act Mr. Chakraborty argued that the said 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 in 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 work of the said machine which will operate automatically and the bank really remains closed in terms of Section 5(1) and every person employed in the 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 (b) 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 this connection the learned Advocate for the petitioner relied upon a judgment of the Supreme Court in the case of S.P. Jain and Ors. v. Krishna Mohan Gupta and Ors. . In paragraph 18 of the said report at page 227 it was observed by the Supreme Court that “law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology of life-style of the community. It is well settled that the purpose of law provides 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”. The learned Advocate also referred to the judgment in the case of H. Shivarao and Anr. v. Cecilia Persira and Ors. . In paragraph 5 of the said judgment at page 250 of the said report the Supreme Court observed as follows :
“It has to be borne in mind that Rent Control legislation are beneficial to the tenant and restrictive of the rights of the landlords-these legislations were passed to meet the problem of shortage of accommodation in cities and towns. Whether that is the best way to meet the problem of finding habitate for growing number of people is another issue. Whether or not the problem could not be met by another way is also another question. Courts must find out the literal meaning of the expression in the task of construction. In doing so if the expressions are ambiguous then the construction that fulfils the object of the legislation must provide the key to the meaning. Courts must not make a mockery of legislation and should take a constructive approach to fulfil the purpose and for that purpose, if necessary iron out the creases”. The learned Advocate relying upon the said judgment contended that the West Bengal Shops and Establishment Act is a beneficial legislation intended for the protection of the employees particularly with regard to holidays, hours of work, payment of wages and leave of persons employed in shops and establishment. The learned Advocate contended that by installation of the said machine at the outside wall of the said premises which the customer themselves will operate on a non-working day, none of these provisions intended to achieve the benefit of the employees will be taken away.
4. The learned Advocate for the petitioner also relied upon the following decisions :
(1) Rogers v. Dodd – (1968-1 W.L.R. 548) also reported in 1968 Lab. I.C. 1371 and A.K. Basu v. I.C.I. (India) Pvt. Ltd. and Ors. reported in 1975(1) L.L.J. 239.
5. In the case of Rogers v. Dodd (supra) the appellant, an owner of a coffee bar was registered as such under Section 7 of the Brighton Corporation Act, 1966. The renewal of registration was subject to registration under Section 7(6)(a) that the premises should not be kept open after 1-00 A.M. On a certain date it was found that after 1-00 A.M. the doors of the premises were closed but refreshments were being served through and open window to persons standing on pavement. Appellant was prosecuted for an offence under Section 7(6)(v) of the Act. It was held in appeal that the words “kept open” in Section 7(1)(a) referred to the keeping open of the premises to allow public to resort therein for the purpose of refreshment. The mischief aimed at by the said Act was the congregation of the public in premises where no doubt they were served with refreshment, and where abuses were likely to occur in the sense of undue noise to the neighbourhood paddling of drugs and other such materials. The Act never intended to deal with the serving of members of the public in the street and any nuisance that might result therefrom. Relying upon the said judgment it was contended that the bank was really not open for the purposer of services to the customer. Gates of the bank, were really closed and nobody could enter the bank premises. Services to the customer was really outside the premises of the bank with the aid of the machine which is not restricted by the West Bengal Shops and Establishment Act.
6. In the other case of A. K. Basu v. I.C.I. (India) Pvt. Ltd. (supra) two points were involved for consideration in the appeal; (a) Whether the appellant was entitled to claim over-time allowance at the rate of 1/1/2 times the basic wages or at the rate of 11/2 times the ordinary wages i.e. basic wages together with Dearness Allowance and whether the referee under the Act has jurisdiction to entertain the application. There was no dispute that the appellant was entitled to over-time. There was also no dispute as to what would be the amount calculated either way. What was in dispute was what should be the basis of calculation ? Whether it should be at the ordinary rate or at the rate of basic wage alone. It was held on a construction of the Act taking into consideration the plain meaning of the expression ‘over-time’ the workman was entitled to overtime as claimed by him i.e. over-time at the rate of l/1/2 time of the ordinary wages. It was also held that if the right to get Over-time involves a detailed examination of the rights of the parties and complicated questions of law and fact the referee was not competent to entertain the dispute and if it does not involve such question of law and fact, but it is only a question of mere computation of over-time allowance and in such an event, the referee is well within his jurisdiction under Act.
7. In paragraph 4 of the said judgment at page 241 of the said report it was observed by the court that “We are concerned with the rights of the parties under West Bengal Shops and Establishments Act, 1963. It would, therefore, be relevant to refer to certain provisions of the Act. The West Bengal Shops and Establishment Act, 1963 came into force on August 15, 1964. This is an Act to regulate holidays, hours of work, payment of wages and leave of persons employed in the shops and establishments. The statement of objects and reasons stated that the object of the Act was to repeal the Bengal Shops and Establishments Act, 1940 and to introduce in its place a new legislation with the view to eliminate various defects in the said Act and providing some additional benefits to the employees. It must, however, be emphasised that the Act itself does not provide for any amount of wages to be paid to the workers ; that has to be decided in accordance with the other provisions of law. According to the Act wages means as defined in Payment of Wages Act, 1936′. Section 4 of the Act makes some of its provisions non-applicable to certain establishments, shops and persons. Section 5 deals with holidays in shops and establishments. Section 6 deals with hours of work in shops”.
8. Mr. J. N. Haider, learned Advocate for the respondents on the other hand contended that by operation of the machine will mean that the bank remains open for the purpose of service to customer and there by the bank will not remain closed as defined under the West Bengal Shops and Establishment Act. He referred to the Section 2(1) of the Act which provides that ” ‘closed’ means not open for the service of any customer or for any other purpose whatsoever relating to business”. It was contended that the bank is really open for the service of the customer and as such it is not closed as defined under the Act and thereby it in fringes the provisions of Section 5(a) of The West Bengal Shops and Establishment Act. The learned Advocate further submitted that it is not correct that no man power would be required. For the purpose of security of the machine and for the protection of the machine security guard may have to be employed.
9. The learned Advocate for the respondent also relied upon the decision in the case of Jethalal Tribhovandas Valand v. Vipin Chandra Ramanlal Gandhi and Anr. reported in 1971 Lab. I.C. 803. The facts in that case were inter alia the petitioner was a partner of Hair Cutting Saloon and as such the owner of that shop and it was registered under the Act as an establishment. Its weekly holiday was notified on Tuesday. On 1.8.67, it was Tuesday, Inspector under the Act visited the shop at about 8-30 A.M. and found that the shop was opened and the petitioner and his brother was’ also a partner in the same shop, were shaving beards of two customers. Therefore, a complaint was filed against the petitioner and his brother for an offence punishable under Section 52(b) as a result of contravention of Section 18 of the Bombay Shops and Establishment Act, 1948. After the complaint was filed the same was withdrawn against the brother of the petitioner and the case proceeded against the petitioner only. The learned Magistrate held the prosecution case was established and sentenced the petitioner for fine of Rs. 100/-. An appeal, against the conviction and sentence was referred to Sessions Court at Broach and the learned Sessions Judge maintained the said order under Section 18 read with Section 52(b) of the Act but reduced the fine to Rs. 50/-. Against the said order the petitioner came up for revision before the Gujarat High Court. The term ‘closed’ and ‘opened’ as defined under the original Act was as follows : The term ‘closed’ means not open for service of any customer or open for any business connected with the establishment’ and the term ‘open’ meant- open for service of any customer. The said original definition was amended as under:
” ‘closed’ means not open for the service of any customer or for any business of the establishment, or for work, by or with the help of any employee, of or connected with the establishment.”
” ‘opened’ means opened for the service of any customer or for any business of the establishment, or for work, by or with the help of any employee, of or connected with the establishment.”
10. It was contended that after the amendment of the original Act it was open to the employer to render service personally to any customer’ even on a closed day and, therefore, if employer himself renders any service to customer on a closed day no offence takes place. The High Court, however, did not accept the said contention of the petitioner. The contention of the petitioner to, the effect that the Act was intended to regulate the hours of work, wages, holidays etc. of the employees and as such since no employee was involved and carrying on work by the employer himself for the purpose of rendering service will not come within the purview of the said Act. The Court, however, held that the object was not only to consolidate and amend the law in order to regulate conditions of work and employment in shops and other employment. The object was also to consolidate and amend the law for certain other purpose specified under the Act. The provisions of Sections 39 to 41A of the said Act relate to health and safety of an establishment and no reference to employer or employee. Considering the provisions of the said statute the court held that the prohibition against giving any service to any customer or for doing any business of the establishment on a closed day is absolute and is applicable, to the employer as well as to the employee. So far as employee is concerned he cannot go to the shop or establishment for any other work to establishment also on a closed day and no work can be taken from employee on a closed day even under a pretext that the work was not connected in any way with the business of the establishment. In the instant case, however, the entire premises is closed. Neither the employer nor the employee is to attend the place of business. It cannot be said that the bank premises is open for service to any customer. The customer is really working on a machine fixed outside wall of the bank premises which remains closed on the day. Under such circumstances it appears to me that the decision in the aforesaid case of Jethalal Tribhovandas Valand v. Vipin Chandra Ramanial Gandhi and Anr. reported in 1971 Lab. I.C. 893 will be of no assistance to the respondents. In the case of Khan Mohammed v. State of Andhra Pradesh reported in 1973 Lab. I.C. 239 relied upon by the learned Advocate for the respondent also the owner of the business being a proprietor was working on , a closed day himself. The question arose since the Act is intended to regulate the conditions of work of the employees and holidays, wages etc. and since no employee is involved whether the mischief would come within the purview of the Andhra Pradesh Shops and Establishments Act. It was held that even the employer himself cannot keep the shop open although he is entitled to work at his private residence. In my opinion this case does not assist the respondent inasmuch as the premises of the bank does not remain open and neither the employee nor the employer is involved in the business of the establishment.
11. Mr. Haider further argued that the bank authorities considering the difficulties applied for allowing them to operate the said machines and for according approval to the use of ATMs as a class which uses computers without employment of man power. By its letter dated 22nd April, 1988 the bank authorities, however, were informed by Additional Chief Inspector, Shops and Establishment in reply to the bank’s letter dated 22nd April, 1988 that the said letters could not be forwarded to the Government since no exemption can be granted to an individual concern under Section 4(2) of the West Bengal Shops and Establishment Act, 1963 on the basis of a prayer of an individual concern. The learned Advocate referred to Section 4(2) of the Act and submitted that no exemption can be granted in respect of any individual establishment but such exemption can be granted in the public interest in respect of a class of establishment. It is the contention of the learned Advocate for the respondents that the operation of the ATMs on holidays will really mean that the bank is not closed inasmuch as service is rendered to the customer and would amount to violation of Section 5(1), (a) and (b) of the Act.
12. Considering the facts and circumstances as aforesaid it appears to me that Section 5 enjoins that every shop or commercial establishment shall remain entirely closed for the purpose of holiday of the employees and all persons working in the shop or establishment. In other words, the shop or establishment may remain closed and the employees must get the holidays, In this case also the establishment of the bank really remains closed except that the said machine which is fixed outside the premises may be operated upon by the customers themselves for their own requirement. The bank really does not remain open. For example, no customer or anybody for any official business can enter the bank premises and meet any official or staff of the bank for his business purpose. The gate of the bank remains closed. It does not also really come within the definition of ‘closed’ as no service is rendered by any employee of the bank or any staff concerned to any customer but the customer themselves obtain service. The Act has to be construed as a whole and the section of the Act cannot be interpreted in an isolated manner bereft of the object and other provisions of the Act. Construing the section along with the other provisions of the Act and object as enunciated in the preamble to the Act in my opinion no provision of Section 5 is infringed or violated in view of the working of the Automated Teller Machines. In fact when the Act was introduced and the definition of ‘closed’ was incorporated in the Act the framers of the Act did not contemplate such a situation. As observed by the Supreme Court in the case of S.P. Jain and Ors. v. Krishna Mohan Gupta and Ors. (supra) the “law should take pragmatic view of the matter and respond to the purpose for which it was made and also to take cognizance of the current capabilities of technology and life-style of the community. It is well settled that the purpose of the law provides a good guide to the interpretation of the meaning of the Act”, In fact the Supreme Court in the aforesaid decision has followed the views of Justice Krishna Iyer in Busching Schmitz Pvt. Ltd.’s case . In that case the Supreme Court observed that the provisions of the statute can be interpreted so that the real object of the statute can be fulfilled. It was observed by the Supreme Court as follows :
“We are not adventuring into any innovation of any legal principle in inhibiting unconscionability in the enforcement of rights. Lord Denning, M.R. said:
“What is the justification for the courts in this or any other case, departing from the ordinary meaning or words ? If you examine all the cases you will, I think, find that at bottom it is because the clause (relieving a man from his own negligence) is unreasonable or is being applied unreasonably in the circumstances of the particular case. The Judges have then, time after time, sanctioned a departure from the ordinary meaning …. Are the courts then powerless ? Are they to permit the party to enforce his unreasonable clause even when it is unconscionable, or applied so unreasonably as to be unconcionable ? When it gets to this point, I would say, as I said many years ago : “There is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused.” (1976) 39 Mod LR 379.
“If the judicial power is helpless to protect a legislative program front schemes for easy avoidance, then indeed it has become a handy implement of high finance …. Once the purpose or effect of the scheme is clear, once the legislative policy is plain, we would indeed for sake a great tradition to say we were helpless to fashion the instruments for appropriate relief.”
13. In the case of H. Shivarao and Anr. v. Cocilia Pereris and Ors. (supra) the Supreme Court observed “Courts must find out the literal meaning of the expression in the task of construction. In doing so if the expressions are ambiguous then the construction that fulfils the object of the legislation must provide the key to the meaning. Courts must not make a mockery of legislation and should take constructive approach to fulfil the purpose and for that purpose, if necessary, iron out the creases”. As observed by the Supreme Court the key to the meaning has to be found out and provision of section has to be given a reasonable meaning considering the purpose and object of the statute and the other provisions of the statute as already observed by the court otherwise it will be making a mockery of legislation.
14. Considering the facts and circumstances and the decisions as aforesaid it does not appear to me that the installation of Automated Teller Machines and the operation thereof causes any infringement or violation of Section 5 of the West Bengal Shops and Establishments Act. Accordingly the said inspection note issued by the respondent No. 3 alleging deviation or infringement of the provisions of the West Bengal Shops and Establishment Act referred to therein is quashed and set aside. The Rule is thus made absolute and appropriate writ of mandamus will issue to that effect. There will be no order as to costs.
15. Learned advocate for the State prays for stay of operation of the order. In this matter, the Writ petitioner has already obtained an interim order and that interim order was all along continued. The State Government could not give effect to the said impugned inspection note at any point of time. Under such circumstances in my opinion no order for stay as prayed for should be granted. The prayer for stay is refused.