Entry No. 17 of Schedule II to the Bombay Shops and Establishments Act, 1948, grants a complete exemption from the closure requirement under Section 18(1) to employers and exempted employees, allowing them to attend to the establishment and transact business on a closed holiday.

JUDGMENT - 1. This appeal raises an interesting point of law under the Bombay Shops and Establishments Act, 1948 (79 of 1948). The respondent who has a shop styled as Radhakisan Hiralal Shop at Kopargaon, was charged with having committed offences under Sections 18(1) 8 read with Section 52 of the Act. The prosecution case against him was that he had contravened the provisions of the first two sections and thereby rendered himself liable to punishment under the last section.

The learned Magistrate held that the respondent had not rendered himself liable to be punished under Section 53 because he could legitimately claim exemption from the operation of Section 18 (1) and in fact he had not contravened Section 8. His finding that no contravention under Section 8 had been proved is a finding of fact. But his conclusion that the respondent was exempted from the compliance of the provisions of Section 18 (1) by virtue of the provisions of entry No. 17, Schedule II, is a decision on a point of law and it is this point which is raised before us by the State in the present appeal.

2. The facts giving rise to the prosecution are not in dispute. The shop owned by the respondent is registered as a commercial establishment under the Act. It is situated within the Municipal limits of Kopargaon town. The accused had presented Form A duly filled in and on his application his shop had been registered as a commercial establishment. The accused intimated to the authorities in writing that Sunday would be a closing day in his shop.

On 14-11-1954, Vishvanath Teli, Shop Inspector under the Act, visited the godown of the accused. This godown is known as Rathi Patra godown. He found that the accused was inside the godown and was arranging for the despatch of jaggery lumps through bullock-carts. The shop of the accused deals in Jaggery and other goods. The Inspector noticed that though the accused had notified Sunday as a closing day in his shop he had opened the godown, which is a part of the shop, and was in fact doing business in the shop by arranging to despatch jaggery lumps to his constituents at Khamgaon and Bonapura through bullock-carts. That in substance gave rise to the charge under Section 18 (1) read with Section 52 of the Act.

3. On 17-11-1954, the same Inspector on visiting the shop of the respondent found Jayanarayan Badrinarayan, Shivprasad Hiralal and Hiralal Surajkaran working in the shop. Jayanarayan and Shivprasad were writing the accounts of the shop whereas Hiralal was sitting in the shop. Form F prescribed under the Act has to be maintained in respect of any commercial establishments governed by the Act and this form is required to show the names of all the employees in the shop.

According to the Inspector, the names of Jayanarayan and Shivprasad had not been shown as employees in the shop in the said form. This in effect is the basis of the charge under Section 8 read with Section 52 of the Act.

4. It may be convenient to deal first with the charge based on the allegation that Section 8 has been contravened by the respondent. It is common ground that the names of the two persons were not shown in the form, and it is not disputed that the rules require these names to be submitted in the form prescribed. The defence raised was that under the relevant rule intimation about the employment of workmen in the shop had to be sent within 30 days of such employment and the argument was that the two persons in question were not shown to have been employed more than 30 days before the Inspector visited the shop.

In other words, the defence was that on 17-11-1954 when the Inspector visited the shop and saw the two persons in question working in the shop, time to notify their employment had still not expired. This argument has been accepted by the learned Magistrate and it has been fairly conceded before us by the learned Government Pleader that on this question of fact there is no material on the record which would justify the argument that th

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