Kalidas Dhanjibhai v. the State of Bombay.
BosE J.-This case is unimportant in itself, for a
small fine of Rs. 50 (Rs.· 25 on each of two courts) has
been imposed for a couple of breaches under section 52
(f) of the Bombay Shops and Establishments Act, 1948,
read with rule 18(5) and (6) of the Rules framed under
1954
October 29,.
1954
Kahdas
JJhanJibhai
v.
"The State of
Bombay.
Bost J.
888 SUPREME COURT REPORTS f1955l
the Act. But the question involved 1s of general
importance in the State of Bombay and affects a large
number of similar establishments, so m order to obtain
a clarification of the law, this has been seiected as a
test case.
The appellant is the owner of a small establishment
called the Honesty Engineering Works situate in
Ahmedabad m the State of Bombay. He employs
three workers. He does business m a very small way
by going to certain local mills, collecting orders from
them for spare parts, manufacturing the parts so
ordered m his workshop, delivering them to the mills
when ready and collecting the money therefor. No
buying or selling is done on the premises. The ques
tion is whether a concern of this nature is a "shop"
within the meaning of section 2(27) of the Act. The
learned trying Magistrate held that it was not and so
acquitted. The High Court, on an appeal against the
acquittal, held it was and convicted.
It is admitted that the appellant maintains no
"leave registers" and gives his workers no "leave books"
and it is admitted that the Government Inspector of
Establishments discovered this on 12th January, 1951,
when he inspected the appellant's works. If his
· establishment 1s a "shop" within the mearung of
section 2(27) he is guilty under the Act ; if it is not, he
is not guilty.
"Shop" is defined as. follows in section 2 (27) :
" 'Shop' means any premises where goods are sold,
either by retail or wholesale or where services are
rendered to customers, and includes an office, a store
room, godown, warehouse or work place, whether in
the same premises or otherwise, mainly used in connec
tion with such trade or business but does not include
a factory, a commercial establishment, residential
hotel, restaurant, eating house, theatre or other place
of public amusement or entertainment." ,
As we have said, it is admitted that no goods are sold
on the premises and it is also admitted that no services
are rendered to customers there, for the manufacture
of spare parts for sale elsewhere cannot be regarded as
"services rendered."
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S.C.R. SlJPREME COURT REPORTS 889
The learned Attorney-General contends that the
definition should be read as follows :
"'Shop' .... includes ...... a work place ...... mainly
used in connection with such trade or business."
He says that the word "such" in the phrase "such
trade or business" relates back to the . opening words of
the definition which read-·
"any premises where goods are sold."
He argues that the emphasis is on the words "goods
are sold" an<l not on the word "premises" because a
trade or business relates to the buying and selling of
goods and is not confined to the premises where that
occurs. He admits that the main portion of the defini
tion which relates to "premises where goods are sold'•
cannot exclude the "premises" element and that unless
there are premises on which goods are sold, the main
portion of the definition cannot apply, e.g., in the case
of a street hawker or of a man who totes his goods
from house to house and sells them at the door. But
he contends that the main definition is extended by
including in it matter which would not be there without
the words of extension and in that portion the em-·
phasis ceases to be on the "premises" and shifts to the
nature of the business; provided there is a business of
selling, any work place wherever situate "mainly used
in connection with it" will fall within the definition.
The other side relies on the ejusdem generis rule. The
argument runs that the trade or business contemplated
by the main portion of the definition is not any
business of selling wherever and however conducted
but l)nly those trades where the selling is conducted on
defined premises. The learned counsel contends that
the very idea of a shop in that connotation betokens a.
room or a place or a building where goods are sold. The
rest of the definition merely links on the main defini
tion ancillary places, such as store rooms, godowns,
work places, etc., which are mainly used in connection
with the "business", and "business" means the kind
of business defined in the earlier part of the definition,
that is to say, not business in general, nor even the
business of selling in general, but that portion of the
business of selling which is confined to selling on some
defined premises. To illustrate this graphically, the·
1954
Kalidas
Dhanjibhai
v.
The State of
Bombay.
Bose],
'954
Kalidas
.Dhanjibhai
v.
·]·he State of
Bombay,
Bose .1.
business of selling in general may be regarded as a big
circle and the business of selling on defined premises
as a small portion which is carved out of the larger
whole. The second part of the definition is linked on
to the carved out area and not to the circle as a whole.
The word "such" confines what follows to what has
gone before and what has gone before is not t]ie trade
of selling in general but only that part of the trade of
selling which is carried on on defined premises. Counsel
argues that there is no justification for ignoring the
limitation which the Legislature has placed on the main
portion of the definition and holding that "such"
relates to a much wider classification of "selling" which
the main portion of the definition not only does not
envisage but has deliberately excluded. We think
that as a matter of plain construction this is logical
and right.
The learned Attorney-General went on to contend
that even if this is a possible view, his view is also
tenable and therefore when we have two possible
interpretations we must choose the one which best
accords with the policy of the Act. Taking us thr01,1gh
the Act he pointed out that this is a piece of social
legislation designed partly to prevent sweated labour
and the undesirable employment of women and young
<:hildren and partly to safeguard the health and provide
for the safety of workmen and employees. He con
tended that this object would be partly frustrated if
small establishments of this kind are placed outside the
purview of the Act, for their number is very large and
the persons employed in them are entitled to, :rnd
require, just as much protection as those more happily
.Placed in larger concerns.
We have considered this carefully and are of the
·opinion that the fear is groundiess because there is
·express provision in the Act for such contingencies.
Under section 5 the State Government can by mere
notification in the Official Gazette extend the Act to
any establishment or class of establishments or any
person or class of persons to which or whom the Act or
.any of its provisions does not for the time being apply.
fo our opinion, the Legislature did not intend to rope
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:S.C.R. SUPREME COURT REPORTS 891
in small establishments of this kind in the first place
·but reserved power to the State Government to do
that when desirable by the very simple process of
notification in the Official Gazette. In reaching this
-conclusion we are influenced by the policy of the Central
Legislature on an allied • topic. We do not intend to
break the general rule that points to the undesirability
-of interpreting the provisions of one Act by those of
.another passed by a different Legislature, but as we
have already decided the question of construction and
-interpretation and are now considering only the general
policy of the State Legislature, we deem it right to view
the matter in its larger aspect for the special reasons
we shall now enumerate.
Now the Central Act, the Factories Act of 1948, was
passed on the 23rd of September, 1948. The Bombay
Act, though entitled Act LXXIX of 1948, was not
passed till the following year, namely, on 11th January,
1949. The Bombay Legislature had the Central Act in
mind when it passed its own legislation because section
2(27) says that a "shop" shall not include a "factory"
and section 2(9) defines a "factory" as any premises
which is a factory within the meaning of section 2 of
the Central Act or which is deemed to be a factory
under section 85 of that Act. Under the Central Act
(section 2 (m)) no establishment can be a factory unless
it employs more than ten workmen or unless it is
artificially converted into a "factory" within the
meaning of this definition by a notification in the
·Official Gazette. Had it not been for the fact that the
.appellant employs less than ten workmen, his concern
would have been classed as a factory under the Central
Act and would then have been excluded from the
.definition of "shop" in the Bombay Act, for the appel
lant carries on a manufacturing process in his workshop
with the aid of power : that is not disputed. The
Centr::d Legislature undoubtedly had the intention of
-excluding small concerns like this from the purview
-of the Central Act except where Government decided
·otherwise, and as there is this reference to the Central
Act on this very point in section 2(27) we think, in
·view of the way that section 2(27) is worded, that that
was also the intention of the Bombay Legislature.
1954
Kalida
Dhanjibh•i
v,
TheStat1 of
Bombay.
BoSI] •
1 954
l(alidas
Dhanjibhai
v.
The State of
&mbay.
Bose J.
892 SUPREME COURT REPORTS [1955}
Therefore, even on the assumption of the learned
Attorney-General that two mterpretations of section
2(27) are possible, we prefer the one which, in our
opinion, better accords with the logical construction of
the words used.
The learned High Court Judges were influenced by
matters which we consider inconclusive. The appellant
applied for registration under the Bombay Act and in
the statement made under section 7 he called his
establishment a "workshop" and described the nature
of his business as a "factory". The learned Judges
considered that this imported an admission that his
establishment was a "shop" because of the use of the
word '"shop" in "workshop". This might have raised
an inference of fact against the appellant had nothing
else been known but when the facts are fully set out as
above and admitted, the appellant's· opinion about the
legal effect of those facts is of no consequence in
construing the section. No estoppel arises. The appel
lant explained that the matter seemed doubtful, so, to
be on the safe side and avoid incurring penalties for
non-registration should it tlarn out that his concern was
hit by the Act, he applied for registration. It is to be
observed that though he applied on 12th April, 1949,
he was not registered till 4th May, 1950, and the
certificate was not given to him till 8th January, 1951.
The present prosecution was launched on 4th April,
1951. Government itself seems to have been in doubt.
However, that is neither here nor there. What we
think was wrong was placing of the burden of proof on
the appellant, in a criminal case, because of a s<rcalled
admission. The learned High Court Judges also advert
to the fact that though the appellant's concern was
registered as a "shop" he made no protest and , did not
have recourse to section 7(3) of the Act.
We do not think section 7(3) has any application. The
appeal is allowed. The conviction and sentence are
set aside and the judgment of the learned trying
Magistrate acquitting the appellant is restored. T~1c
fines, if paid, will be refunded.
,,
I , •\
'J'
Appeal allowed. -'-
GIPN-·S 5-ll8 S. C. India/59-2-5-63-1, COO /