The State of Assam vs Md. Juaidur Rahman Mazumdar and Zowaidur Rahman Mazumdar

K. Lahiri, J.—This is an appeal from the order of acquittal passed by the Sub-divisional Judicial Magistrate, Hailakaodi in C.R. Case No. 989/79 acquitting the accused of the charge u/s 26(i) of the Assam Shops and Establishments Act, 1971 (Assam Act XXI of 1979).

The relevant facts are as follows: On 26.11.79 during the course of inspection the Labour Inspector, Hailakandi visited M/s. Sbalim Industry, Ratanpur Road, Hailakandi, for short "the industry'''' and found that it was being run allegedly in violation of the provisions contained in Section 36(i) of ''the Act''. According to the Labour Inspector the proprietor of ''the Industry was to obtain registration certificate under "the Act''''. The proprietor, namely, the opposite party was asked to show cause why necessary legal action should not be taken against him for violation of the provisions of Section 36(i) of the Act. The opposite party filed objection and claimed Inter alia that it was a press, manufacturing stationery and the provisions of the Act were inapplicable to "the Industry". The Labour Inspector-cum-Inspector under "the Act'''' lodged a complaint against tins opposite party stating Inter alia that the Industry'''' was on shop within the meaning of Section 2(19) of "the Act''''. The complainant visited the shop on 26.11.79 ''and on enquiry he found that the proprietor of the shop had not applied for registration under the Act and the Rules. The complainant had served notice but the accused did not care to reply, On perusal of the complaint learned Magistrate issued summons on the opposite to party to meet the charge u/s 29(i) of "the Act", The offence was explained to which counsel representing the accused pleaded not guilty. The compliment examined himself. He was cross-examined and learned Magistrate acquitted the accused on two grounds. First, that the accused had been summoned meet a charge u/s 29(i) of the Act which was explained to been but the allegation was in repeat of an offences not (sic) u/s 29(i) of the Act. According to the learned Magistrate the offence, if any, had been committed by the accused was under 36(i) of "the Act" and as such the accused could not he convicted u/s 29(i) of ''the Act''''. The second ground is that there was no material to show that "the industry" was "a shop" and as such the provisions of the Act were inapplicable and accordingly the accused did the accused did not commit any offence u/s 36(i) of "the Act."

There is no wrangle at the bar that the object of "the Act'''' was to consolidate and amend the low resting to the regulation of condition of work and employment in shop, commercial establishments and establishments for public entertainment in me State of Assam. It may he a need here that the law regulating the condition of work and entertainment in "factories" are governed by the Factories Act, 1948 similarly the condition of work and employment in the factories are governed by the Industrial Disputes Act, 1917. The act is social legislation which governs the condition of work and employment in shops, commercial establishment and establishment for public entertainment of amusement in the State. The provisions of the Act are applicable to (1) all stops (2) commercial establishments; and (3) establishments for public entertainment of amendment to which the Assam shops and establishments Act, 1943 applied immediately before the commencement of the Act.

In the instant case the prosecution allegation is that the Industry is a shop. It was not the claim of the prosecution that it was a commercial establishment as defined in Section 2(4) of "the Act". It was also not the case of the prosecution that it was "an establishment for public entertainment or amusement''''. According to the prosecution "the industry" was a shop as defined by Section 2(19) of "the Act". Apart from "shops" and the classes of establishments alluded to, no other establishment falls within the ambit of the provisions of "the Act''''. It appears that "the factories" and "the Industries" governed by the Factories Act, 1948 and Industrial Disputes Act, 1947 respectively do not fall within the bounds of "the Act". The reasons are obvious, First, that for regulation the condition of work and employment in factories and industries there are special Laws and accordingly, the factories and Industrial have not been brought within this four corners of "the Act". Suddenly, the factories and the industries have not been specifically included within the provisions of "the Act". The industries have been specifically excluded vide Section 3(d) of "the Act". On perusal of the provision of "the Act'''' it appear that factories have been impliedly excluded as the definition of commercial establishments and establishments for public entertainment or amusement do not take within them any factory, though the term factory has been specifically defined in Section 2(10) of "the Act''''. Only a department of a factory in which persons are employed in a clerical capacity in any room or place where no manufacturing process is being carried on is included within the term-commercial establishment". As such, it appears that factories have been impliedly excluded. However, these are my passing observations.

In the instant case I am to consider whether M/s. Shalim Industry is a shop as claimed by the prosecution. The accused has pleaded that it is not a shop. The prosecution case is that it is a shop. The burden is on the prosecution to establish beyond all reasonable doubt that it was as shop defined in Section 2(19) of the Act. I extract below Section 2(19) of "the Act."

"2(19) shop" means any premises where any tirade or business is carried on or where services are rendered to customers, and includes office, store rooms, godown or warehouse whether in the same premises or otherwise used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, 1948 (Central Act No. 63 of 1948) or an establishment for public entertainment or amusement.

It appears that a shop must be a premises where any trade or business is carried on or where services are rendered to customers and also includes office, store rooms, godown, or warehouse whether in the same premises or otherwise used in connection with such trade or business, However, the definition does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, 1948 or an establishment for public enthrallment or amusement As such, it is clear that even a shop attached to a factory, although it is a shop is not "a shop'''' falling within the definition of the term "shop" if the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, 1948

In the instant case the Labour Inspector was the sole witness to establish the prosecution case against the accused. However, he has not stated a word that M/s. Shalim Industry was a premises where any trade or business bad been carried on or where services were rendered to customers. As such, the prosecution has totally failed to establish that M/s. Shalim Industry was a shop as defined in Section 2(19) of "the Act". Accordingly, the prosecution case fails. Learned Magistrate was justified in holding that the prosecution bad miserably failed to establish that M/s. Shalim. Industry was a shop as defined in Section 2(19) of "the Act''''. There is no material that any trade or business. was carried on in the premises of M/s. Shalim Industry or therein services were rendered to the customers and so forth.

It was a firm stand taken by the accused that "the Industry" was a printing press, it was an Industry and exempted from the operation of "the Act" u/s 3(d) of "the Act". The prosecution got notice of the defence, but did not adduce any evidence to show that it was not an Industry.

For the foregoing reason, I am constrained to hold that there in no flaw in the order of acquittal, and accordingly, the appeal preferred from the order of acquittal is dismissed.