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TMI Blog1962 (10) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Act has not been extended to rural areas. The salesman maintains his books in the godown. The tea received, the tea sold and the sale proceeds received by such salesmen are entered in these books. Statements to this effect are also prepared at the godown and are sent to the head office of the company. Beyond this nothing further happens at the godowns. The procedure for sale prescribed by the company is that the salesman hires out a push-cart or some other kind of transport, puts the tea packets in that vehicle and proceeds to the bazar where his customers are, they being the regular shopkeepers who vend such articles or hotels, restaurants and tea shops. He moves from door to door and either books orders for supply later or gives them the instant supply and receives the price. Whatever quantity of tea is left unsold, he brings it back and stores it in the godown. Thus it will be seen that at the godown besides writing accounts and similar statements all that happens is that the tea is either taken out or is put back. No actual selling or any kind of business deal takes place at the godown. No orders are booked there. The entire business is conducted by the salesman outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Judge, Ambala, and it came up for hearing before the Additional Sessions Judge, Ambala. Before him both the contentions were raised including the contention that the petitioner was exempt from the provisions of the Act on account of Section 3 of the Act by reason of his work being intermittent. The learned Additional Sessions Judge upheld the decision of the Magistrate and also negatived the contention based on Section 3 of the Act. Against this decision the present petition for revision was preferred to this Court, 5. This petition came up for hearing before my learned brother Gurdev Singh, J. In view of the fact that the Division Bench decision was given under an earlier Act which was replaced by the present Act and also that there were certain material changes in the Act, the learned Judge was of the view that the decision of the Division Bench needed re-examination, particularly when the basis on which the Division Bench distinguished the Supreme Court decision in Kalidas Dhanjibhai v. The State of Bombay, (S) AIR 1955 SC 62 was no longer available in the Act. The learned Judge, therefore, directed that the petition for revision be heard by a Division Bench. The matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out the various provisions of the Punjab Trade Employees Act (No. X of 1940) and the Act, which is the law which replaced the Punjab Trade Employees Act. This is also necessary because the Division Bench decision, the correctness of which has been challenged by the learned counsel, was given under the earlier Act. For this reason I am setting out side by side the relevant provisions of both the Punjab Trade Employers Act and the Act. They are as under:- The Punjab Shops and Commercial Establishments Act, 1958 The Punjab Trade Employees Act, 1910 An Act to provide for the regulation of conditions of work and employment in shops and commercial establishments. An Act to limit the hours of work of shop assistants and commercial employees and to make certain regulations concerning their holidays, wages and terms of services. 2 (iv)" Commercial establishment " menus any promises wherein any business, trade, or profession is carried on for profit, and includes journalistic or printing establishments and promises in which business of banking, insurance, stocks and shares broker-age or produce eichange is carried on or which is used as hotel, restaurant, boarding or eating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se hours of employment are regulated by or under the Factories Act, 1918, except tho provisions of subsections (3), (4) and (5) of section 7 of this Act in sofar 83 they relate to employment in a factory ; (f) any person employed about the business of any shop or commercial establishment mentioned in paragraphs (a) to (e) afore-said ; (g) any person whose work is inherently intermittent. (g) any person whoso hours of employment are regulated by or under the Factories Act, 193-1, except tho provisions of sub-sections (3), (4) and (6) of section 4of this Act in so far cvs they relate to employment in a factory; (h) Shops engaged in tho supply of gas light on marriages or other ceremonial occa-sions; (i) persons employed in managerial capa-city or whoso work is inherently inter-a watchman, a caretaker or a messenger, and (j) the members of the family of the em-ployer. 9. No establishment shall, e&vo as otherwise provided by this tbie Act, open earlier than nine 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 bo served during the period of fifteen minutes immed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on conviction, to &fine not exceeding ono hundred rupees for tho first offence, and three hundred rupees for every subsequent oHence. Provided that the fine iu respect of every subsequent offence within tho eame year shall not be leas than ono hundred rupees in any ease. 16. Subject to the other provisions of this Act, whoever contravenes any of the provisions of this Act, or any ot the rules made-thereunder shall be liable on conviction to a fine not excecding twenty five rupees for tho first offence and one hundred rupees for every subsequent offence. The underlined portions (here in italics) indicate the change in the Act. 10. This brings me to the consideration of the question that requires determination, namely, whether the premises in question are an establishment within the meaning of the Act. Establishment according to its definition means a shop or a commercial establishment. 11. In order to determine this question it is necessary to closely analyse the definition of "shop" and "Commercial establishment". One element is common to both, namely, that there have to be premises wherein, in the case of a commercial establishment any business, trade or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of shop, in addition to the carrying on of trade or business, another alternative requirement is envisaged, namely, the rendering of services to the customers. As already mentioned both shop and commercial establishment have a common feature, namely, that they denote premises where trade or business is carried on. But one is distinct from the other. Thus at this stage it will be proper to determine whether the premises in question are a shop or a commercial establishment. 12. It seems to me that the premises in dispute cannot be said to be a shop. I have come, to this conclusion on the basis that before the present enactment was brought on the statute book, the commercial world as well as the man in the street knew what the phrases "shop" and "commercial establishment" signified; and the legislature which was enacting a measure to protect the employees from overwork was not endeavouring to, put a new connotation on these phrases but was merely concerned that the definition be left wide and elastic so that there is no evasion of the legislative measure. I therefore, take a shop to mean a premises where trade or business is carried on in the shape of buyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be available to the customers. The other method is that the goods are stocked with the salesman. He can meet the market demand as and when it arises. It facilitates the buyers who retail the goods. The salesman keeps in touch with his customers in the area under his beat and sees that the goods are stocked with the dealers all the time. The salesman has areas which are within the jurisdiction of the Act as well as areas which are outside the jurisdiction of the Act, e.g., the rural areas. All he does at the depot is to take out or replace the goods or maintain an account regarding their disposal, that is, a stock register and a cash register. But the actual buying or selling is not done at the depot; it is done at the establishments of his customers. No one else works at the depot. The depot may remain closed for days together. The salesman does not complain that by this process he is made to work more than what the Act contemplates. As a matter of fact he has complete authority so far as his working hours are concerned. He regulates them according to his convenience. Therefore, it will be apparent that this depot cannot be rightly called a shop. The State counsel did realise th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eller would not make the same a commercial establishment. Similarly, the residence of a businessman will not become a commercial establishment merely because he is thinking out schemes and making plans to either evolve new business or to enlarge the existing one. No one can deny that it is business activity. To put it shortly, only those premises can be said to be a commercial establishment where two minds meet to strike a business deal for profit. It is hardly material by what means they meet. Any trade or business requires two or more individuals dealing with one another and if such dealing does take place in any given premises, or is intended to take place therein, they can be said to be a commercial establishment but not otherwise. The purpose of the meeting of the two minds has to be for profit, though the profit may not be the necessary result. 18. The next question then arises: whether the premises in question are covered by the definition of the phrase "commercial establishment". By now we are quite familiar with the definition. It requires premises wherein trade or business is carried on for profit. Can it be said that what happens at the depot directly results ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishment. They proceeded on the basis that it was one or the other. I have already held that it is neither and it is not necessary to repeat my reasons all over again. Mr. Justice Dua who wrote the judgment in Makhan Lal's case, ILR (1960) Punj 639 did realise the force of the contention raised by the counsel for the petitioner in that case that the phrases "shop" and "commercial establishment" were susceptible to both the broader and a narrower interpretation. The learned Judge, however, adopted the broader interpretation on the ground that the legislation in question was a social welfare legislation. In my view the broader interpretation is not justified and I have already elaborated my reasons for the same. It cannot be disputed that this legislation does come in conflict with the fundamental right of a citizen to carry on his trade, business or profession unhampered. Of course, this right is subject to reasonable restrictions that may be placed and the Act in question is certainly a piece of legislation which puts reasonable restrictions on the individual's right to carry on trade, business or profession unhampered, but I do not see how a broa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished by Dua J. on the ground that in the Bombay Act there was a provision in the form of Section 5 enabling the Government to include by notification in the official Gazette any establishment of class of establishments to which or any person or class of persons tq whom the Bombay Act or any of its provisions were to apply or not to apply. At the time when the decision in Kalidas's case, (S) AIR 1955 SC 62 was given, no such similar provision was to be found in the Punjab Act and that was one reason which prevailed with the learned Judge in Makhan Lal's case, ILR (1960) Punj 639 to give an extended meaning to the definition of a shop and a commercial establishment in that Act. So far as the Act as it stands at present is concerned, a provision analogous to Section 5 in the Bombay Act has been incorporated in Section 2 (4) of the Act which defines "commercial establishment". Therefore, the reason for giving the extended meaning to the definition of commercial establishment no longer holds good. 23. After giving the entire matter my full and careful consideration I am definitely of the view that the present depot does not fall within the ambit of the Act inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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