PETITIONER: RAMDHANDAS AND ANOTHER Vs. RESPONDENT: THE STATE OF PUNJAB DATE OF JUDGMENT: 10/04/1961 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS CITATION: 1961 AIR 1559 1962 SCR (1) 852 CITATOR INFO : APL 1962 SC 316 (36) ACT: Shop Establishments--Enactment to Provide for regulation of hours work--Constitutional validity--Forty eight hour week-- Opening and closing hours--Reasonable restrictions--Punjab Shops and Commercial, Establishments Act, 1958 (Punj. 15 of 1958), SS. 4, 7, 9, 10--Constitution of India, Arts. 19(1) (g), 19(6). HEADNOTE: Section 7 of the Punjab Shops and Commercial Establishments Act, 1958, provided that no person shall be employed about the business of an establishment for more than forty eight hours in any week and nine hours in any one day. Under s. 9 of the Act no establishment shall save otherwise provided by the Act,open earlier than ten o'clock in the morning or close later than eight o'clock in the evening. The petitioners challenged the constitutional validity of the aforesaid provisions of the Act on the ground that having,, regard to the nature of their business, it would be impossible for them to carry it on in the manner in which they were doing unless the Act permitted them to work without regard to the restrictions imposed by the limitation as to hours of work of employees under s. 7(1) or the hours for the opening and closing of the establishments under s. 9, and that, 853 consequently, these provisions imposed unreasonable restric- tions on their fundamental right to carry on their trade or business under Art. 19(1)(e) of the Constitution of India. The petitioners' case was that their business was such that the customers who supplied them with goods brought them in vehicles which arrived at their godowns at all hours of the day and night and that they received messages by telephone and telegram similarly both during day and night. These according to them rendered it necessary that their place of business should be kept open practically for all the 24 hours of the day. Held, that ss.7 and 9 of the Punjab Shops and Commercial Establishments Act, 1958 are intra vires the Constitution of India. The test of constitutional validity is whether the impugned provisions of the Act which were enacted to afford the worker better conditions of work and more regulated hours so as to avoid physical overstrain and ensure to him a reasonable amount of leisure in the interest of the general public, are unreasonable restrictions from the point of view of the employer and go beyond what is reasonably needed to protect the worker. judged by this test, neither the 48-hour week, nor the specification of the opening and closing hours could be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. Manohar Lal v. The State of Punjab, [1961] 2 S.C.R. 343, followed. JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 164 01 1958.
Writ Petition under Art. 32 of the Constitution of India for
the enforcement of Fundamental Rights.
N. C. Chatterjee and Naunit Lal, for the petitioners.
N. S. Bindra and D. Gupta, for the respondent.
1961. April 10. The Judgment of the Court was delivered by
AYYANGAR, J.-The constitutional validity of the Ay.
operative provisions of the Punjab Shops and Commercial
Establishments Act, 1958 (Punjab Act 15 of 1958), which we
shall hereafter refer to as the Act, is challenged in this
writ petition filed under Art. 32 of the Constitution,
seeking reliefs appropriate to such a challenge.
There are two petitioners and the nature of the business
carried on by, them, which is set out in the
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petition, indicates that they have combined with a view to
bring up before the Court the implications of the enactment
with reference to different types of business which trades
in the Punjab might be’ carrying on and which would be
impeded or restricted by the provisions of the Act. The
first petitioner states that he has a shop at Mandi Dabwali
in Hissar District where he carries on business in the
purchase and sale of grains, etc. in wholesale. The
relevant averment in regard to the nature of his business is
that the customers who supply him with goods bring them
loaded in carts drawn by camels or bullocks and that these
vehicles arrive at his godowns at all hours of the day and
night. He also states that for the purpose of the purchases
or sales effected by him, he receives messages by telephone
and telegram both during the day and the night. These,
according to him, render necessary, if he has to carry on
business as he has been doing all along, that his place of
business should be kept open practically the whole of the
day and night, i.e., for all the 24 hours. The second
petitioner states that he is carrying on a retail business
on a small scale, and that he employs no outsider but
attends to all the work in the shop himself, with the
assistance, if necessary, of the members of his family. In
this case also it is stated that the goods purchased are
brought to him at all hours of the day and night and
similarly he has to receive messages during the entire
period. It is in this background that the petitioners
desire that the Court should view the restrictions imposed
upon them by those provisions of the Act which are
challenged in the petition.
We shall now proceed to set out he impugned provisions of
the Act with a view to determine whether for all or any of
the reasons set out in the petition,any of them could be
said to constitute an unreasonable restriction on the right
to carry on trade or business so as not to be protected by
Art. 19(6) of the Constitution which is the gravamen of the
complaint formulated in the petition.
The Act received the assent of the President on April 25,
1958, and was published in the Punjab
855
Gazette on May 1, 1958. According to the preamble, it is an
Act to provide for the regulation of conditions of work and
employment in shops and commercial establishments. The Act
repealed and re-enacted, with modifications, the Punjab
Trade Employees Act, 1940, to which enactment also it would
be necessary to advert in its proper place. Section 1(3) of
the Act provides that the Act shall come into force on such
date as Government may, by notification appoint in this
behalf and by a notification under this provision the Act
was directed to come into force from June 1, 1958. The Act,
however,, did not of its own force apply to the entirety of
the Punjab State, for s. 1(4) enacted:
“1(4). It shall apply in the first instance
to the areas specified in the Schedule, but
Government may by notification direct that it
shall also apply to such other area and on
such date as may be specified in the
notification.”
Mandi Dabwali where the petitioners carry on business is one
of the local areas in the district of Hissar set out in the
Schedule annexed. We might here note that the main
grievance of the petitioners appears to, be that it has not
been brought into force in neighbouring local areas and that
this disparity in the regulations is acting to the
disadvantage of people carrying on business in the areas set
out in the Schedule. This, however, cannot obviously be a
ground of constitutional grievance and learned Counsel
therefore very properly did not rely on it except merely to
draw our attention to this fact.
Section 2(iv) defines a ‘a commercial establishment’ to
which the Act applies as meaning “any premises wherein any
business, trade or profession is carried on for profit”,
omitting the unnecessary words. Section 2(v) defines ‘day’
as meaning “the period of twenty-four hours beginning at
midnight”, again omitting what is immaterial. The operative
provisions of the Act which were attacked in the petition
are ss. 7 and 9 and it would be convenient to set out their
material terms:
“7. Hours of employment.–(1) Subject to
the
856
provisions of this Act, no person shall be employed about
the business of an establishment for more than forty-eight
hours in any one week, and nine
hours in any one day.
(2)………………………….
(3)………………………….
(4)………………………….
(5)………………………….
9. Opening and closing hours.– No establishment shall, save
as otherwise provided by this Act, open earlier than ten
o’clock in the morning or close later than eight o’clock in
the evening;
Provided that any customer who was in the establishment
before the closing hour may be served during the period of
fifteen minutes immediately following such hour;
Provided further that the State Government may, by order and
for reasons to be recorded in writing, allow an
establishment attached to a factory to open at eight o’clock
in the morning and close at six o’clock in the evening.
Provided further that the State Government may, by
notification in the official Gazette, fix such other opening
and closing hours in respect of any establishment or class
of establishments, for such period and on such conditions,
as may be specified in such notification.”
For the sake of completeness and to understand the scheme of
the enactment we would set out the terms of s. 10 also,
which reads:
“10. Close day.-(1) Save as otherwise
provided by this Act, every establishment
shall remain close on every Sunday:
Provided that, in the case of an establishment
attached to a factory, the employer may
substitute the close day of such establishment
so as to correspond to the substituted close
day of the factory in the same manner and
subject to the same conditions as are laid
down in this behalf in the Factories Act,
1948.
(2) (i) The employer of an establishment shall
in the prescribed form intimate to the
prescribed
857
authority the working hours and the period of
interval of the employed persons within
fifteen days of the date of registration of
the establishment.
(ii)The employer of an establishment may
change, the working hours and the period of
interval once in a quarter of the year by
giving intimation in the prescribed form to
the prescribed authority at least fifteen days
before the change is to take place.
(3) Notwithstanding anything contained in
subsection (1), the employer of an
establishment may open his establishment on
the close day if–
(a) such day happens to coincide with. a
festival; and
(b) employees required to work on that day are
paid remuneration at double the rate of their
normal wages calculated by the hour”.
It is urged by Mr. Chatterji–learned Counsel for the
petitioners-that having regard to the nature of the
petitioners’ business, whose features we have set out
earlier, it would be impossible for them to carry it on in
the manner in which they have been doing up to now, unless
the Act permitted the first petitioner to work without
regard to the restrictions imposed by-the limitation as to
hours of work of employees imposed by s. 7(1) of the Act,
and both the petitioners without regard to the hours for the
opening and closing of the “establishments” under s. 9.
Before entering on a discussion of the constitutional
propriety of the restrictions imposed we may point out that
the provisions of the Act contemplate that establishments
might fall under three categories:.-(1) where it is
necessary in the public interest, and having regard to the
service which they render to the community, that the normal
hours of working should not be subject to the restrictions
imposed by ss. 9 or 10, (2) those in which there is no need
for complete freedom from these restrictions, but in which
an adjustment merely as regards the hours set out in s. 9 is
sufficient, (3) those in which neither the requirements of
the trade nor, of course, the interest of the general public
858
would suffer if the establishment adjusted its operations in
conformity with the Act.
The first head is dealt with by s. 4 of the Act which reads:
“4. Provisions of sections 9 and 10 not applicable to
certain establishments.-Nothing in sections 9 and 10 shall
apply to-
(a) clubs, hotels, boarding houses, stalls and refreshment
rooms at the railway stations;
(b) shops of barbers and hair-dressers;
(c) shops dealing mainly in meat, fish, poultry,
eggs, dairy produce (except ghee), bread, confectionery,
sweets, chocolates, ice, ice-cream, cooked food, fruit,
flowers, vegetables or green fodder;
(d) shops dealing mainly in medicines or medical or surgical
requisites or appliances and establishments for the
treatment or care of the sick, infirm, destitute or mentally
unfit;
(e) shops dealing in articles required for funerals, burials
or cremations;
(f) shops dealing in pans (betel leaves), biris or
cigarettes, or liquid refreshments sold retail for con-
sumption on the premises;
(g) shops dealing in newspapers or periodicals, editing and
despatching sections of the newspaper offices and offices of
the news agencies;
(h) cinemas, theatres and other places of public
entertainment;
(i) establishments for the retail sale of petrol and
petroleum products used for transport;
(j) shops in regimental institutes, garrison shops and troop
canteens in cantonments;
(k) tanneries;
(1) retail trade carried on at an exhibition or show, if
such retail trade is subsidiary or ancillary only to the
main purpose of the exhibition or show;
(m) oil mills not registered under the Factories Act, 1948;
(n) brick and lime kilns;
(o) commercial establishments engaged in the manufacture of
bronze and brass utensils so far as
859
it is confined to the process of melting in
furnaces; and
(p) saltpetre refineries.”
Similarly by notification of the State
Government State dated June 1, 1958, the
following classes of establishments wer
e
exempted from the provisions of SS. 9 and 10:
“(1) establishments dealing in the retail sale
of Phullian, Murmura, sugar-coated grams and
Reoris;
(2) commercial colleges of shorthand and type-
writing.
(vide Punjab Government notification No. 6567.
S-Lab. 58/1737-RA, dated June 1, 1958.)
(3)all booking offices of the Transport (vide
Punjab Government notification No. 6147/ 5815-
C-Lab-58/1741-RA, dated June 1, 1958).”
(2)The second category of cases are those covered by the
second and third provisos to S. 9. Action has been taken
under the third proviso to S. 9, by a notification which was
issued at the same time as when the Act was brought into
force which runs in the following terms:
“The following categories of establishments in
the State of Punjab shall not open earlier
than eight o’clock in the morning or close
later than six o’clock in the evening during
the period from 1st May to
thirty-first August every year:-
(1)establishments dealing in timber,
manufacture of furniture, tents, supply of
furniture or tents on hire, cycles or their
repairs or painting or dyeing;
(2)establishments, other than tailoring
establishments, which include ‘workshops’ or
other establishments where articles are
produced, adapted or manufactured, with a view
to their use, transport or sale; and
(3) establishments dealing in agricultural
produce brought for sale by producers.(vide
Notification No. 6567. S-Lab-58/1735-RA,
dated June 1, 1958).”
(3) Those outside S. 4 and which are not covered by
notifications under the provisos to S. 9 have, of
860
course, to adjust their business in accordance with the
requirements of the Act. It is in the context of these
exceptions and the elasticity for which provision is made to
meet the imperative requirements of particular types of
business, that the constitutional objection has to be
considered.
The constitutional objection is that, the impugned
provisions impose unreasonable restrictions on the
fundamental right of the petitioners “to carry on their
trade or business”. The regulation of contracts of labour
so as to ameliorate their conditions of work is in reality a
problem of human relationship and social control for the
advancement of the community. The public and social
interest in the health and efficiency of the worker is, at
the present day, beyond challenge. Our Constitution does not
protect or guarantee any fundamental right in the nature of
the provision in Art. 1, s. 10(1), of the U. S. Constitution
against “impairment of the obligation of contracts”. The
only test of constitutional validity therefore is whether
the provision in the impugned law, which is enacted to avoid
physical overstrain of the worker, and so as to afford him
better conditions of work, and more regulated hours, thus
ensuring to him a reasonable amount of leisure-factors which
would render the restrictions in the interest of the general
public, is unreasonable from the point of view of the
employer. For answering this question it would be necessary
to ask-are the restrictions necessary, or do they go beyond
what is reasonably needed to protect the worker? Judged by
this test, neither the 48-hour week, nor the specification
of the opening and closing hours can be said to have gone
beyond what by modern standards are necessary for ensuring
the health and efficiency of the employee. It might also be
added that the concept of what is necessary to secure the
welfare of labour, or indeed of the elements which determine
its content are neither of them fixed or static, but are
dynamic, being merely the manifestation or index of the
social conscience as it grows and develops from time to
time.
Besides, this point regarding restrictions of this
861
nature being unreasonable is concluded against the
petitioners by the decision of this Court in Manohar Lal v.
The State of Punjab (1) judgment on which was delivered on
November 11, 1960. The provision there impugned was s. 7
of the Punjab Trade Employees Act, 1940, (which, as stated
earlier, had been repealed and re-enacted with modifications
by the Act) which directed that the shops and establishments
to which it applied should remain closed on one day in the
week (corresponding to s. 10 of the Act of 1958). The
appellant before this Court was a small trader who did not
employ any person under him but who, like the second
petitioner before us, himself with the members of his family
attended to all the requirements of his shop. Basing
himself on this feature he challenged the validity of the
provision which restricted his right to carry on his
business in such manner as he chose on all the seven days in
the week. In repelling these objections this Court said:
“The ratio of the legislation is social
interest in the health of the worker who forms
an essential part of the community and in
whose welfare, therefore, the community is
vitally interested. It is in the light of
this purpose that the provisions of the Act
have to be scrutinized……. The learned
Judges of the High Court have rested their
decision on this part of the case on the
reasoning that the terms of the impugned
section might be justified on the ground that
it is designed in the interest of the owner of
the shop or establishment himself and that his
health and welfare is a matter of interest not
only to himself but to the general public..A
restriction imposed, with a view to secure thi
s
purpose would, in our opinion, be clearly
saved by Art. 19(6)… Apart from this, the
constitutionality of the impugned provision
might be sustained on another ground also,
viz., with a view to avoid evasion of
provisions specifically designed for the
protection of workmen employed. It may be
pointed out that acts innocent in themselves
may be prohibited and the restrictions in that
regard would
(1) [1961] 2 S.C.R. 343.
862
be reasonable, if the same were necessary to
secure the efficient enforcement of valid
provisions. The inclusion of a reasonable
margin to ensure effective enforcement will
not stamp a law otherwise valid as within
legislative competence with the character of
unconstitutionality as being unreasonable.”
These observations, in our opinion, clearly apply and
suffice to support the validity of the related provisions
here impugned.
The petition fails and is dismissed with costs.
Petition dismissed.