J. Hayagreevan Potti vs N. Sankaran Nair

Narayana Pillai, J.—A question entirely open and not concluded by any decision of this Court is raised in this Revision and that is whether a lodging house is a boarding house and so is a commercial establishment governed by the provisions of the Kerala Shops and Commercial Establishments Act (XXXIV of 1960), hereinafter referred to as the Act. The petitioner who was convicted by the Industrial Tribunal and Special First Class Magistrate (For Labour Laws), Alleppey, u/s 29 of the Act read with Rule 14 of the Rules framed under that Act and sentenced to pay Rs. 15/- as fine, runs a lodging house called "Sreevas Tourist Home" at Trivandrum. The relevant sections in the Act and the rules framed under it can be read immediately.

Section 29(1)....................................................

(2) Whoever contravenes any of the provisions of sections 7, 19, 20, 28 and 30 shall on conviction, be punishable with fine which may extend to fifty rupees

Section 28 Every employer shall on demand produce for inspection of an Inspector all registers, records and notices required to be kept under and for the purposes of this Act.

Section 2(7) "employer" means a person owning, or having ultimate control over the affairs of, an establishment and includes the manager, agent or other person acting in the general management or control of an establishment;

(8) "establishment" means a shop or a commercial establishment"

Rule 14. "Any person who contravenes any of the provisions of these rules shall on conviction be punishable with fine which may extend to fifty rupees."

Rule 10 "Every employer shall maintain a register of employment in Form A provided that where the opening and closing hours are ordinarily uniform, the employer may maintain such register in Form B.

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(4) Every employer shall exhibit in his establishment a notice in Form E specifying the day or days of the week on which the employees employed by him shall be given a holiday. The notice shall be exhibited on the Saturday immediately preceding the first week during which it is to have effect, before the work of the persons to whom it relates to cease.

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(9) Every employer shall maintain a register in Form F for the holidays and leave granted u/s 13 to employees in his establishment.

When Pw. 2, the Inspector under the Act, visited the Sreevas Tourist Home on 6-6-1968 and demanded the Registers contemplated by the Rules they were not produced by the petitioner. Pw. 2 did not also see the notice in Form E exhibited there. It was thereafter that the prosecution was started.

According to Pw. 2 Sreevas Tourist Home is a boarding house and therefore is a "commercial establishment" as contemplated by the Act. The contention of the petitioner is that it is not a commercial establishment and so the provisions of the Act cannot be applied to it.

When the petitioner was questioned u/s 342 of the Criminal Procedure Code, about Sreevas Tourist Home being considered as a commercial establishment the only circumstance for which his explanation was sought was that Pw. 2 had deposed that food for the guests who stayed there was being brought from a hotel about half a kilometre away. The answer given by the petitioner was that most of the persons who stayed in the lodging house used to take food from outside and that as regards others the attenders in the lodging house purchased and brought for them food from different hotels according to their tastes.

Section 2(4) of the Act where "commercial establishment" is defined can now be read.

''commercial establishment'' means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act 1948 (Central Act 63 of 1948) apply.

The words "hotel, restaurant, boarding or eating house, cafe or any other refreshment house" appearing in the definition show that hotels, restaurants, boarding or eating houses and cafes referred to there are all refreshment houses. Refreshment houses are the genera of which hotels, restaurants, boarding or eating houses and cafes are the species. The expression ''refreshment house'' is not defined in the Act. The meaning appropriate to the context of the word ''refreshment'' as given in the Concise Oxford Dictionary is "drink or food that refreshes". So according to its natural meaning a refreshment house is one where drink or food is served.

Lodging houses are intended for travellers desirous of sleeping and staying there as guests. Either separate rooms or rooms in common with others would be provided for them there. Attendance of servants in exchange for payment would also be usually provided there. In a mere lodging house a guest would not be provided with his board. If he is provided with refreshments also there it is not a mere lodging house. The omission to include lodging houses also in the definition of "commercial establishment" cannot be readily supplied by interpreting the expression refreshment house as including lodging house also.

Admittedly food is not prepared in the Sreevas Tourist House. From the mere fact that the attenders there according to their convenience, as deputed by some of the guests there, purchase food from outside and bring it to the lodging house and give it to them it cannot be taken that the lodging house is a refreshment house. Suppose as desired by some of the guests the attender goes and purchases from a shop close by stationery articles like paper, pencil and ink can the lodging house be treated as a shop? Certainly not. A mere lodging house is not a commercial establishment as defined in Section 2(4) of the Act and Sreevas Tourist Home is a mere lodging house.

Hence the conviction and sentence of the accused are set aside and this revision petition is allowed. Fine, it paid, shall be refunded to the revision petitioner.