In Re: N. Sankaranarayana

Ramaswami, J.—These are two connected revision rises which have been filed against the convictions and sentences of the learned

Additional First Class Magistrate, Kollegal, in C.C. Nos. 152 and 153 of 1951.

The facts are: The area occupied by Kollegal in Coimbatore district is served by the Mysore railway. Kollegal itself has no railway station and

Maddur is the nearest railway station. Therefore, an out-agency is working ''in Kollegal for the purpose of booking goods there for being sent to

Maddur railway station. This out-agency at Kollegal has been taken by Royal Motor Service, Kollegal, through one Dr. Mahadevan. But it

appears that it is managed by the petitioner before us who is stated to be a brother of that Dr. Mahadevan.

This establishment in Kollegal was visited by the Assistant Inspector of Labour. Gobichettipalayam and he found that this out-agency did not

maintain a register of wages for the persons employed in it, a register of employment in the prescribed form E or F or a notice in the prescribed

form G or a register in the prescribed form H or a register of holidays and leave in the prescribed form K for persons employed under this

petitioner in this out-agency. It was further found that this petitioner failed to exhibit the notices containing the extracts of the Madras Shops and

Establishments Act, 1947, and the rules, 1948, in English and Tamil and that he failed to maintain and produce them when demanded by the

Assistant Inspector of Labour.

In addition the Labour Inspector also found that the timings of work were not in consonance with the provisions of the Madras Shops and

Establishments Act and what is more one particular individual was being employed constantly exceeding the spread over periods.

This Inspector therefore recommended the prosecution of this petitioner under the Madras Shops and Establishments Act to the Commissioner

of Labour setting out all these facts. The Commissioner of Labour on coming to the conclusion that this was a case falling within the Madras Shops

and Establishments Act and that there had been infractions thereof, sanctioned the prosecution of this petitioner excepting for the hours of work

and the employment of that particular individual contrary to the provisions of the Madras Shops and Establishments Act.

The petitioner in the meanwhile has made a reference to the Traffic Manager of the Mysore Railway pointing out that he has been required by

the Labour Inspector to observe the rules and regulations as required by the Madras Shops and Establishments Act and that if such regulations

were to be observed in his out-agency he would not be able to discharge his functions. Therefore the Traffic Manager having only the hours of

work and nothing else in his mind replied that the Madras Shops and Establishments Act did not apply in regard to the timings of work in this out-

agency.

The plea of the accused in Court was that he thought that this out-agency formed part of the Mysore railway establishment and did not come

within the ambit of the Madras Shops and Establishments Act and that therefore he did not keep the registers and perform the duties prescribed

under that Act.

The learned Additional First Class Magistrate overruled these contentions and found the accused guilty as charged and sentenced him to a

nominal fine of Rs. 10 in regard to each offence.

In this Court two additional points are also taken viz., in terms of Section 4(e) of the Act that this out-agency as part of the railway establishment

working under the Central Government and therefore does not fall within the ambit of the Madras Shops and Establishments Act and secondly that

the Commissioner ''of Labour u/s 51 of the Act is alone the person who should have decided whether the Act applied or not to this out-agency

and that the Magistrate should have made a reference to the Commissioner of Labour and therefore not having done so the Magistrate was not

competent to dispose of the matter himself.

In my opinion on the evidence on record the convictions are correct and the points taken are without substance.

The term ""establishment"" has been defined in the Madras Shops and Establishments Act in Section 2(6) as to include a commercial

establishment and a commercial establishment would certainly include a commercial out-agency of this description. The railway department cannot

perform all the functions involved in running the railway. They have got to establish agencies for definite purposes. In places where there are no

railway stations and goods have got to be collected and sent to the goods-shed the railway department instead of leaving it to private contractors

employ out-agencies to canalise the transporting of all these goods to the railway station. These agencies are subject to rules and regulations so that

the public are not victimized in regard to the rates charged etc. by them. This would not make the out-agency any more a part of the establishment

of the Central Government than tor instance the book-status of Messrs. Higginbothams or various catering establishments which are functioning in

the railway stations and which are also governed by the uniform rules framed by the railway department and which prescribe the functions they

have got to perform and the way in which the public have got to be served. There fore there is no point in stating that this is a commercial

establishment not falling within the definition of Section 2 (6) of the Madras Shops and Establishments Act. In arriving at this conclusion we need

not be unduly perturbed by the information given by the Traffic Manager of the Railways, because I have already pointed out that this letter related

to working hours and in particular to the spread over of the periods of work of a particular individual to which this Assistant Inspector of Labour

seems to have taken exception. Therefore the lower Court was right in holding that this out-agency working in Kollegal and not forming part of the

railway establishment is an establishment within the meaning of Section 2(6) of the Act.

Then coming to the point that this matter ought to have been decided by the Labour Commissioner, the Labour Commissioner has as a matter

of fact decided it because on a reference made to him for prosecuting this individual all these facts have been set out and the Labour Commissioner

has been asked for sanction for prosecution and the Labour Commissioner after going through the records has accorded sanction thereby deciding

that the provisions of the various sections of the Act for the contravention of which that individual was about to be charged were provisions which

were applicable to this out agency. Therefore, this point is without any substance.

Besides the Magistrate need not refer to the Labour Commissioner before deciding whether this case attracted the provisions of the Madras

Shops and Establishments Act or not. Section 51 of the Act is a miscellaneous departmental provision which states that when there is a dispute

about the application of one or more of the provisions of the Act to_ a particular establishment or particular individual the authority who will have

to decide that matter will be Labour Commissioner and that his decision thereon shall be final. It only means that the decision is final in so far as

appeals in the department are concerned and not that it takes away the powers of the Court to decide whether in the particular circumstances of

the case the Madras Shops and Establishments Act applied or not. I am unable to accept the contention that the decision of the Commissioner of

Labour is a prerequisite for a Magistrate to find out whether the offence for which the accused has been charged before him has been committed

by him or not. This miscellaneous provision in Section 51 of the Act is merely for the removal of difficulties in deciding certain questions in so far as

the department is concerned and would not stand in the way of the Magistrate at all.

Therefore, in these circumstances the convictions of this accused for which he has no other defence excepting the two points which have been

set out above, are correct and the sentences which the Magistrate himself describes as lenient deserve no interference. Both the convictions and

sentences are confirmed and these criminal revision cases are dismissed.

If the petitioner feels aggrieved that the application of the Madras Shops and Establishments Act will make it impossible to work these out-

agencies and can make out an arguable case the remedy is in his own hands. The State Government may be moved and the State Government if so

convinced can exempt these out-agencies from the operation of this Act.