Ramdhandas v. State of Punjab, (SC) BS60703
SUPREME COURT OF INDIA

(Large Bench)

Before:- P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta and N. Rajagopala Ayyangar, JJ.

Writ Petition No. 164 of 1958. D/d. 10.4.1961

Ramdhandas and another - Petitioners

Versus

State of Punjab - Respondent

For the Petitioners :- Mr. N.C. Chatterjee, Sr. Advocate and Mr. Naunit Lal, Advocate.

For the Respondent :- Mr. N.S. Bindra, Sr. Advocate and Mr. D. Gupta, Advocate.

Punjab Shops and Commercial Establishments Act, 15 of 1958, Sections 7 and 9 - Constitutional validity of - Upheld.

[Paras 8 and 9]

Cases Referred :-

Manohar Lal v. State of Punjab, Criminal Appeal No. 173 of 1953 : 63 P.L.R. 660.

JUDGMENT

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 Article 32 of the Constitution, seeking reliefs appropriate to such a challenge.

2. There are two petitioners and the nature of the business carried on by, them, which is set out in the 854 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.

3. 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 Article 19(6) of the Constitution which is the gravamen of the complaint formulated in the petition.

4. The Act received the assent of the President on April 25, 1958, and was published in the Punjab 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 Section 1(4) enacted :

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.

5. 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 Sections 7 and 9 and it would be convenient to set out their material terms :

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 Section 10 also, which reads :

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.

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 Section 7(1) of the Act, and both the petitioners without regard to the hours for the opening and closing of the "establishments" under Section 9.

6. 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 sections 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 Section 9 is sufficient, (3) those in which neither the requirements of the trade nor, of course, the interest of the general public would suffer if the establishment adjusted its operations in conformity with the Act.

7. The first head is dealt with by Section 4 of the Act which reads :

8. 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 Article 1, Section 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 overtrain 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.

9. Besides, this point regarding restrictions of this nature being unreasonable is concluded against the petitioners by the decision of this Court in Manohar Lal v. The State of Punjab, Criminal Appeal No. 173 of 1953 : 63 P.L.R. 660, judgment on which was delivered on November 11, 1960. The provision there impugned was Section 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 Section 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 :

Petition dismissed.