2012 Supreme(Bom) 435

High Court of Judicature at Bombay
A.M. KHANWILKAR & R.G. KETKAR, JJ.
Yogesh Panditrao Khaire & Others
Versus
State of Maharashtra & Others
CRIMINAL WRIT PETITION NO.2945 OF 2011 WITH CRIMINAL APPLICATION NO.524 OF 2011
Decided on : 28-02-2012

Headnote:BOMBAY SHOPS & ESTABLISHMENT ACT, 1948 - Section 19 - Bombay Police Act, 1951, Section 33(1)(xa) - Eating house within jurisdiction of Nashik Police Commissioner Registration Rules, 1990, Rule 9 - Opening and closing time of eating house.

       Since time for opening and closing of eating house under Act, 1951, is in respect of maintenance of law and order hence time specified by Assistant Commissioner of Police would prevail.

       Constitution of India, 1950 - Article 19(1)(g) - Bombay Police Act, 1951, Section 33(1)(xa) - Eating House within Jurisdiction of Nashik Police Commissioner Registration Rules, 1990, Rule 9 - Restriction on timing of eating house.

       Time restrictions specified in Rule 9 of Rules, 1990 to keep eating house open until 11 p.m., neither violative of Article 19(1)(g) of Constitution nor of Act, 1951. - In the present case as regards the Shops and Establishments i.e. Act of 1948, it is an Act to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, other places of public amusement or entertainment and other establishments. The extent and operation of the Act of 1948 is to regulate the conditions of work and employment in the specified establishments. The expression "eating house" has not been defined separately, but it is covered in the inclusive term of the "establishment" under Section 2(8) of the Act of 1948.

       The registration of establishment covered under the Act of 1948 is essentially for the purpose of regulating the conditions of work and employment in the establishment which, in no way, addresses the issue of the public order and law and order as such. The timing specified in the Act of 1948 for opening and closing of the establishments is essentially to effectuate the conditions of work and employment of the employees in the establishments covered under the Act of 1948.

       On the other hand, the Act of 1951 is enacted inter alia, for the maintenance of public order. Section 33, which falls in Chapter IV of the Act of 1951, dealing with police regulations, provides for power to make rules or regulation of traffic and for preservation of order in public place and other matters. Clause (xa) thereof deals with the matter relating to registration of eating house, including granting a certificate of registration in each case, which shall be deemed to be a written permission required and obtained under the Act of 1951 for keeping the eating house, and annual renewal of such registration within a prescribed period.

       The eating houses within the jurisdiction of Nashik Police Commissioner Registration R ules, 1990 are framed, inter alia, for the purpose of maintenance of the public order. Rule 9 thereof stipulates that the permit holder shall keep open eating house between morning 5.00 (A.M,) onwards till night 11.00 (P.M). Since the field covered by the Act of 1951 is in respect of maintenance of the public order and not limited to regulating work and employment of the employees in an establishment, as in the case of the Act of 1948, the provisions of the Act of 1951 and the permission granted by the Police Authority under the said Act and the terms and conditions, on which permission is granted, ought to prevail.

       The Act of 1948 operates in the limited field of regulation of condition of work and employment of the employees in the concerned establishments governed by the provisions of the Act of 1948, whereas the Act of 1951 operates in a different field and is in respect of the police powers to be exercised thereunder by the Police Authority for facilitating and ensuring maintenance of the public order. The conditions specified by the competent authority in the Certificate of Registration issued under the Act of 1951, which, again, is a subsequent State enactment and dealing with different subject-matter, ought to prevail.

       Constitution of India, 1950 - Articles 20(2) and 309 - Suspension for misconduct.

       Since proceedings in a criminal case and departmental proceedings against a delinquent, can proceed simultaneously though separately hence prayer to stay departmental enquiry until proceedings before Criminal Court concluded, rejected. - The purpose of departmental inquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not therefore desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1972 (in short the Evidence Act). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.

       Constitution of India, 1950 - Article 226 - Practice and procedure.

       Where an application by petitioner, seeking direction to police to return eating house licence at petitioner, containing false allegations against a Senior Police Officer, was reject by Court therefore concerned Police Officer can pursue his remedies against petitioner in respect of false allegation. - Rights guaranteed under Article 19(1)(g) of the Constitution of India are not absolute. It is open to restrict those rights, but such restriction must be reasonable one and in the interests of the general public. The Nashik Police Commissioner Registration Rules, 1990, have been framed in exercise of powers under the Act of 1951 with a view to facilitate maintenance of the public order. Further, the time restrictions specified in Rule 9 to keep the eating houses open until 11.00 P.M. cannot be said to be, per se, unreasonable, as it is intention to facilitate maintenance of the public order. Closing the eating houses at 11.00 P.M., even though the other work places may be open beyond that time, at best, is a case of causing inconvenience to the working public, but, by no standards, it can be considered as unreasonable, keeping in mind the interests of the general public much less as having no nexus with the object sought to be achieved by the Act of 1951 and the Rules of 1990.

       Moreover, the provisions under Section 33(1)(xa) of the Act of 1951 cannot be construed to mean that it excludes the police power to specify working hours of the eating house while issuing Certificate of Registration. The fact that clause (xa) refers to expression "registration of eating houses" and not to granting licence for running eating houses does not necessarily denude the competent authority under the Act of 1951 to grant registration of eating houses on such conditions as may be deemed necessary to keep it open only during the specified hours for maintenance of the public order. Working hours specified in Rule 9 of the Rules of 1990 are, in no way, inconsistent with any of the provisions of the Act of 1951. The Certificate of Registration to be issued by the Police Authorities in exercise of powers under the Act of 1951 and the Rules framed thereunder, and more particularly prescribing the working hours to keep the concerned establishment open, is, essentially, for maintenance of the public order. Further, the validity of Rule 9 of the Rules framed under the Act of 1951 cannot be questioned on the basis of the provisions in another State enactment, (here Shops and Establishments Act) which, admittedly, does not cover the field of maintenance of the public order. Therefore, there is no merit in the challenge to Rule 9 of the Rules of 1990.

       Constitution of India - Article 19(1)(g) - Rights guaranteed under. Since rights guaranteed under Article 19(1)(g) of Constitution are not absolute hence such rights can be restricted in interest of general public.

       Bombay Municipal Corporation Act, 1888 - Section 33. See Eating House within the Jurisdiction of Nashik Police Commissioner Registration Rules, 1990, Rule 9.

       Bombay Police Act, 1951 - Section 33 - Eating Houses within Jurisdiction of Nashik Police Commissioner Registration Rules, 1990, Rule 9 - Validity of Rule 9. Restrictions imposed on working hours of Eating Houses under Rule 9 of Rules 1990 framed under Act 1951 is valid as it is imposed in public interest.

       Bombay Police Act, 1951 - Section 33(1)(xa) - Issuance of certificate of Registration. Police, while issuing certificate of Registration under Section 33(1)(xa) of Act, 1951, has power to specify working hours of eating houses to maintain public order.

       Bombay Shops and Establishment Act, 1948 - See Constitution of India, Article 226.