Trincas vs State of West Bengal

Amaresh Roy, J.—This appeal and the connected cross-objection have arisen out of a proceeding that commenced in this Court by a Rule that was issued in this Court upon an application made by the Appellant under Article 226 of the Constitution praying for a writ of the nature of mandamus declaring the provisions of Sections 6 and 7 of the West Bengal Shops and Establishments Act, 1963, to be ultra vires the Constitution and also for an order restraining the Respondent from giving effect to the said Act against the restaurant cum bar of the Appellant.

The material facts are that the Appellants are a registered partnership firm carrying on business in restaurant which business has a bar attached to it. For running that business they have been granted licence under the Police Act. The West Bengal Legislature has passed the West Bengal Shops and Establishments Act, 1963, to regulate holidays, hours of work, payment of wages and leave of persons employed in shops and establishments. In Section 2 words used in that Act have been defined and in the material portion Sub-section (1) defines the word ''closed'' thus:

(1) ''Closed'' means not open for the service of any customer or for any other purpose whatsoever relating, to business.

Sub-section (3) defines ''day'' thus:

(5) ''Day'' means a period of twenty four hours beginning at midnight.

In Section 6 of the Act hours of work in shops have been provided and in Section 7 hours of work in establishments have been provided, Section 8 provides special provisions for young persons. Section 9 prohibits employment of children below the age of 12 in shops and establishments and Section 10 provides restriction on employment of young persons or women. Particular mention need be made of that Sub-section (3) of Section 6 provides that no person employed in a shop shall be required or permitted to work in such shops for more than six hours in any one day, unless he has been allowed an interval for rest of at least one hour. Sub-section (1) of Section 7 provides that in no hotel, restaurant, eating house or cafe shall the hour of closing be later than 11 o''clock post meridiem.

The Petitioner in the application under Article 226 of the Constitution challenged the validity of Sub-section (1) of Section 7 of the Act in so far it authorises the authorities under the West Bengal Shops and Establishments Act to require the hotel, restaurant and eating house to close at 11 o''clock at night. They also challenged the validity of the provisions of Sub-section (2) and Sub-section (4) of Section 6 whereby limitations have been put on the hours of work during which a worker is permitted to work. The main ground for such challenge was that those provisions interfere unreasonably with their right to carry on trade and business and they further contended that those also amount to interference with the Police Act whereunder the Petitioner have the licence to keep the bar open upto 1 p.m. in the night. Those provisions and also other provisions of the Act were said to be violative of Article 14 of the Constitution inasmuch as, it was contended, in respect of other shops and establishments no such restrictions have been imposed and that in other big cities like Bombay and other places there was no such compulsion of closing shops and restaurants at 11 o''clock at night.

In opposing the Rule before the learned trial Judge the Respondent State of West Bengal filed an affidavit-in-opposition sworn to by an Assistant Secretary of the Labour Department of the Government of West Bengal in which the statements made and contentions raised by the Petitioner were traversed. It is material to refer to para. 10 of that affidavit-in-opposition which is quoted below:

As regards paragraph 10 of the petition it is not correct to say that the Act ''tends to prohibit the business'' of the Petitioner. The Act merely provides that hotels, restaurants etc. shall be closed at 11 p.m. This virtually means closure for just one hour for in view of the definition of ''day'' such establishments may be opened on the next day at 12 midnight (there is no restriction on the hour of opening).

The matter was heard by our learned brother Sabyasachi Mukharji J. who held that the provisions in Sub-section (4) of Section 7 of the Act are reasonable restrictions in the interest of health and well-being of the workers and those do not amount to unreasonable restrictions. But with regard to Sub-section (1) of Section 7 the learned judge held that there does not appear any justification for those provisions which, in view of the definition of the day, virtually means that the hotel and restaurant to be compelled to close at 11 o''clock in the night to open again at 12 midnight. In that respect before the learned trial Judge the Government Pleader, who was representing the State of West Bengal, could not satisfy that there was any valid justification for that provision. For that reason Mukharji J. held that the requirements of Sub-section (1) of Section 7 in so far as it says that hotels and restaurants should close at 11 o''clock in the night is an unreasonable restriction not warranted by the purpose of the Act. In so holding the learned Judge also held that Sub-section (1) of Section 7 is severable from the other parts of the Act and therefore, he declared Sub-section (1) of Section 7 which requires the hotels and restaurants should close at 11 p.m. to be invalid. But he held that the other provisions of the Act are valid.

As a result of that decision by the judgment of Mukharji J., the Respondent was directed not to enforce the provision of Sub-section (1) of the Act directing the Petitioners to close the hotels and restaurants at 11 p.m. and a writ in the nature of mandamus should issue accordingly. The Rule was made absolute to that extent. But there was no order as to costs. The learned Judge directed also in that judgment that there would be a stay of operation of his order and the ad interim order of injunction would also continue till the parties had opportunity to apply before the appellate Court. By the order of the appellate Court those orders of stay and injunction have been continuing till the disposal of this appeal.

The Appellant who had succeeded only in part before the learned trial Judge preferred this appeal and their grounds are all directed against that part of the judgment of the trial Judge by which the whole Act has been held to be not violative of Article 14 or 19 of the Constitution and Sub-section (4) of Section 6 and Sub-section (2) of Section 7 have been held to be reasonable restrictions and therefore, valid legislation. They have raised the contention that the entire Act should be struck down as ultra vires and not only Sub-section (1) of Section 7.

The State of West Bengal has preferred a memorandum of cross-objection against that part of the judgment of the learned trial Judge where Sub-section (1) of Section 7 have been held to be an unreasonable restriction and therefore, invalid. They contended that the learned Judge without arriving at a definite finding whether there was total prohibition of the Appellant''s business within the meaning of Article 301 of the Constitution should not have held that the provisions of Sub-section (1) of Section 7 of the Act to be unreasonable.

In support of the appeal Mr. Ranadeb Chaudhuri in his usual fairness did not urge that the Appellant''s business was not governed by the Act at all. In view of the definition of ''establishment'' in Sub-section (5) and the definition of establishment for public entertainment and amusement in Sub-section (6) of Section 2, the business of the Appellants in the restaurants and the bar under the trade name ''Trincas'' at 17 Park Street, Calcutta, is an establishment of that description and therefore, there cannot be any doubt that the Act XIII of 1963 passed by the West Bengal Legislature as the West Bengal Shops and Establishments Act, 1963, if a valid piece of legislation, will govern the Appellant''s business. Mr. Chaudhuri himself also conceded that Section 6 of the Act concerns shops while Section 7 concerns establishments. Mr. Chaudhuri directed his attack against two sub-sections of Section 7, viz. Sub-section (1) which he contends to be offending against Article 19 of the Constitution that contention was raised in the petition under Article 226 of the Constitution nor any specific ground has been taken in the memorandum of appeal which can be said to be directed against that particular section of the Act except perhaps the omnibus ground No. 13 by which the entire Act has been attacked. As no specific pleading was raised at any stage of the proceeding, we did not allow Mr. Chaudhuri to argue against Section 10 of the Act because that would be taking the Respondent by surprise regarding a point on which they had no opportunity to plead to furnish materials and provide answers.

First, we have to consider whether the provisions in Sub-section (1) of Section 7 of the Act is an unreasonable restriction as has been held by the learned trial Judge; That provision is in this term:

Section 7(1). In no hotel, restaurant, eating house or cafe shall the hour of closing be later than eleven o''clock post meridiem.

This provision has to be understood by Considering it not in isolation but in conjunction with what is provided in the other parts of that section itself and also with other provisions in the Act and the purpose of this legislation as it appears from the preamble of the Act. In the preamble it has been clearly mentioned that it is an Act to regulate holidays, hours of work, payment of wages and leave to persons employed in shops and establishments. For carrying out that purpose of the Act, Section 6 provides for hours of work in shops and then in Section 7 is provided hours of work in establishments. A comparison of the provisions in Section 6 with Section 7 will reveal that in the two parallel provisions. One for shops and the other for establishments, the two classes of workers in those institutions respectively have been treated differently. The reason appears obviously to be the different classes of persons employed in those two classes of institutions. The Act has treated the employees in shops and employees in establishments as being of distinct class. To our mind this is clearly reasonable classification and cannot be said to be infringing equality before the law or of equal protection of the laws guaranteed by Article 14 of the Constitution of India.

With Section 7 itself the provisions in several sub-sections seek to achieve that (a) total working hours shall not be more than 8� hours in one day or more than 48 hours in any one week and no workers shall be required or permitted to work after the hour of closing of such establishments; (b) total number of hours of work including over-time work shall not exceed 10 hours in any one day and total number of hours of work over-time by any one employee shall not exceed 120 hours in any one year; (c) if the working hour of any employee is more than 6 hours in any one day, he shall be allowed interval for rest of at least one hour during that day. Sub-section (4) of Section 7 provides that the period of work and interval for rest every person employed in an establishment shall be arranged by the employer of such persons so that together they do not extend over more than 10 hours and a half in any one day.

By effect of those provisions in Section 7, read with the definition of ''day'' in the Act and fixation of closing hour as not later than 11 o''clock post meridiem, Sub-section (1) thus brings the result that for a person employed in an establishment the maximum working hours including over-time in any one day must end at or before 11 p.m. in the night. If that working hour for the day is more than six hours, the employee must be allowed an interval for rest for at least one hour during that day.

It is true, as the learned trial Judge has observed in his judgment, that having closed at 11 p.m. in the night the establishment may open again at 12 midnight. But that opening will be the beginning of another day and not continuation of the day previous. For that new day commenced at midnight, if the establishment is open at that late hour, the limits imposed in the several sub-sections of Section 7 will apply. By that provision the law has enabled the establishment to keep open from 12 midnight to 11 p.m. and compels the establishment to remain closed for one hour between 11 p.m. and 12 midnight. It is not, however, correct understanding of the provisions in the Act to say, as has been said in para. 10 of the affidavit-in-opposition on behalf of the Respondent State that hotels, restaurants, etc. shall be closed at 11 p.m. and there is no restriction on the hour of opening. True meaning of the provisions in the Act is that such establishments may open at or after 12 midnight and shall close at or before 11 p.m. subject to that restriction the establishment may open at any hour after 12 midnight and close at any hour before 11 p.m. The break between closing on one day and opening on the following day must be one hour between 11 p.m. and 12 midnight, but that break may be longer according to the need and choice of the particular establishment. We are unable to hold that such restriction is unreasonable or is one for which no justification can be thought of. In the nature of business that is done in hotels and restaurants, eating houses and cafes and in the reality of the kind of customers those establishments cater for a closure for one hour between 11 p.m. and 12 midnight, as it must or longer break as may be, has the effect that it will be unlikely that the same customers will have the facility for service in the establishment continuously throughout the night. That break of one hour to regulate hours of work in those kind of establishments may very reasonably sought to achieve interest of general public by ensuring that the customers coming in the earlier part of the night must leave by 11 p.m. though it is possible that customers may come in at, 12 midnight for the rest of the night if the establishment keeps open for business during those later hours. In our view, therefore, the restriction that appears in Sub-section (1) of Section 7 of the Act is a reasonable restriction in the interest of general public as is permitted by Clause (6) of Article 19. Those restrictions operate on para. (G) of Clause (1) of Article 19.

We appreciate that the learned trial Judge felt the difficulty in finding any justification because of the particular language in which para. 10 of the affidavit-in-opposition on behalf of the State of West Bengal was couched and the inability of, the learned Government Pleader to render any assistance to the learned Judge even by taking instructions from the department. That inability of the Government Pleader was obviously the result of instructions he could obtain from the department and the confused language in para. 10 of the affidavit-in-opposition which, in our view, were due to lack of comprehension of the true import and effect of the provisions in several sub-sections of Section 7 in relation to the purpose of the Act clearly stated in the preamble, as we have mentioned above.

We, therefore, cannot accept the view of the learned trial Judge that Section 7(1) of the Act is an unreasonable restriction not warranted by the purpose of the Act. We set aside that finding because, in our view, as mentioned above, Sub-section (1) of Section 7 is a reasonable restriction in the interest of the general public and therefore, not violative of Article 19 of the Constitution. That restriction in respect of hotels and restaurants is based on reasonable classification and is, therefore, not violative of Article 14 of the Constitution also. Consequently, it does not offend against Article 301 of the Constitution because, in our view, the restriction imposed does not infringe freedom of trade or commerce. The cross-objection filed on behalf of the Respondents the State of West Bengal shall, therefore, succeed.

On behalf of the Appellant the only other argument raised by Mr. Ranadeb Chaudhuri was, with respect to Sub-section (4) of Section 7 of the Act. That sub-section is in these terms:

The period of work and interval for rest every person employed in an establishment shall be arranged by the employer of such person so that together they do not extend over more than ten hours and a half in any one day.

Mr. Chaudhuri contended that it was contradictory to the other provisions in Section 7 and was incongruous to the extent of being unworkable. We do not find any force in this contention and it seems to us that the argument is based on a confusion of the true meaning of the word ''interval'' occurring in Sub-section (4) and mixing it up with the break in the hours of work of person employed that must occur by effect of provisions in Sub-section (1) regarding the closing up and also by effect of maximum working hours in any one day including over-time as is provided in Sub-section (2) of the section, such breaks in working hours must be distinguished from ''interval for rest'' mentioned in Sub-section (4). It cannot be overlooked that Sub-section (3) of Section 7 provides that if any person employed is required or permitted to work in the establishment for more than six hours in any one day, then he must be allowed an interval for rest of at least one hour during that day. Then only Sub-section (4) provides that the period of work and interval for rest together do not extend over more than [ten hours and half in any one day. The use of the phrase ''any one day'' in Sub-sections (3) and (4) makes it clear that the interval spoken of in those two sub-sections does not mean or include the breaks in the working hours either by the effect of Sub-section (1) by closing of the establishment or Sub-section (2) fixing the maximum working hours in any one day. In Our view, interval for rest means interval during the maximum working hours in any one day as distinguished from break between the duty hours. Even if there be any justification for thinking that by the language used in Section 7 in its several sub-sections there is any repugnancy, the meaning of the word ''interval'' in Sub-section (4), we have given above, will avoid such imaginary repugnancy. For harmonious construction of the several provisions in the statute to avoid repugnancy or even imaginary repugnancy, the Court should accept the meaning that achieves harmonious construction with any violence to the language in the statute. Mr. Chaudhuri for the Appellant in his accustomed reasonableness himself felt that the interpretation we have put on Sub-section (4) by holding that interval must be distinguished from break between duty hours will clarify any doubt that may raise apprehension in the mind of the Appellants and their counsel leading to an imaginary repugnancy.

The appeal must, therefore, fail and we dismiss it with the clarification above-mentioned regarding Sub-section (4) of Section 7 of the Act. The cross-objection is allowed. There will be no order as to costs either in appeal or cross-objection.

Amiya Kumar Mookerji J.

I agree.