Radha Kant Singh Roy vs State of Bihar

S. Ali Ahmad, J.—The petitioner has been convicted u/s 34 of the Bihar Shops and Establishment Act, 1953 (hereinafter to be called "the Act") and sentenced to pay a fine of Rs. 25/-, in default to undergo rigorous imprisonment for one week.

2, Admittedly the petitioner gets deliveries of newspapers as an agent from Sahibganj Railway Station and distributes them to different persons on payment. The question that arises for consideration is as to whether taking delivery of newspapers from the railway station and distributing them to different persons on payment would amount to having an ''establishment'' within the meaning of the Act. Establishment has been defined u/s 2(6) of the Act, which is as follows:

''establishment'' means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and includes-

(i) administrative or clerical services appertaining to such establishment;

(ii) a shop, restaurant, residential hotel, eating house, theatre or any other place of public amusement or entertainment; and

(iii) such other establishment as the State Government may, by notification, declare to be an establishment to which the Act applies;

but does not include a ''motor transport undertaking'' as defined in Clause (g) of Section 2 of the Motor Transport Workers Act, 1961 (27 of 1961).

In case it is held that the petitioner runs an ''establishment'' then the application has to fail but in case it is held that taking delivery of the bundles of newspapers from the station and distributing them to different persons do not amount to having an ''establishment'', the conviction and sentence have to be set aside.

Learned Counsel for the petitioner submitted that the work being carried on by the petitioner cannot be said to haying an ''establishment'' inasmuch as it has not defined location. This point was also raised before the trial court but it was negatived in the following way:

The shifting venue of his business cannot remove him from the definition of word establishment u/s 2(6) of the Act.

Establishments have to be registered u/s 6 of the Act in the manner prescribed by the Rules u/s 40 of the Act. Rule 3 prescribes that an application in duplicate in Form I has to be filed before the Inspecting Officer for registration of the establishment. Paragrapshs 3 and 4 of Form I can be of some help in determining the question raised in this application. They are as follows:

Full postal address of the establishment.

Location of the establishment (including the number of the holding and name of the police-station in which it is situated).

According to the requirement prescribed by paragraph 3 of Form I, full postal address of the establishment has to be given whereas under paragraph 4 location of the establishment has to be given. These two particulars, in my opinion, can be given only when the establishment is permanently located. As I have said above, the petitioner, according to the prosecution case, used to take delivery of bundles of newspapers from the railway station and used to distribute them either himself or get them distributed by his sons. The nature of work performed by the petitioner was such which possibly could not be operated from any permanent location. The petitioner, in my opinion, was a hawker and was not running any establishment. The Act, therefore, was not applicable to him or to his profession. His conviction, therefore, u/s 34 of the Act for not getting the establishment registered u/s 6 of the Act cannot be maintained.

In the result, the application is allowed and the conviction and sentence passed against the petitioner are set aside.