Complete closure of shop for one day in a week held compliance with the provision.

This is a Criminal Revision preferred against the conviction and sentence by the learned Second Presidency Magistrate, Madras, in C.C. No. 11265 of 1955.

The facts are: The petitioner M. Sadasivam is the proprietor of a hairdressing saloon. Under the Madras Shops and Establishments Act (hereinafter called the Act) he had specified Monday as the weekly holiday for the saloon and had exhibited a notice to that effect in the saloon. On 26th September, 1955, which was a Monday he was found running the saloon and serving customers with the assistance of 12 persons. Therefore, he had been prosecuted and convicted under section 45(1) of the Act for contravening the provisions of section 11(1) of the said Act.

The case for the revision petitioner was two-fold. First of all, that he had applied to Government that he was going to work on a shift system and that the shop would not be wholly closed on any day and that he proposed to give each worker a complete holiday every week and that he should be granted exemption from the provisions of section 11(1) of the Act. There is no evidence that this revision petitioner has been granted any such exemption. If this exemption applied for had been granted, then it would be a complete answer. But such not being the case, we have to consider the next contention raised by this revision petitioner. It is common ground that the revision petitioner gives all his workers one day’s holiday in a week in conformity with the provisions of section 11(2) of the Act.

On the foot of that it is contended by the revision petitioner that section 11(1) of the Act providing for a complete closure of the shop for one day in the week offends the provisions of Article 19(1)(g) of the Indian Constitution which lays down that all citizens shall have the right to practise any profession or carry on any occupation, trade or business, that when the revision petitioner gives every worker, a holiday in conformity with the provisions of section 11(2) of the Act, he is not bound to completely close his shop for one day in the week, that section 11(1) of the Act is an unreasonable restriction and interference with his right to the practice of his trade or business, that it is not a reasonable restriction on the exercise of the said right in the interests of the general public protected by clause 6 of Article 19, that the Act has been designed only to give workers in the shops one day’s holiday in the week and that this intention of the Act is amply fulfilled by the restriction imposed under section 11(2) compelling an employer to give each worker a day’s holiday in the week and that the employer is entitled to conduct his business in such a manner that he gives a day’s holiday in the week to all the workers by working on a shift system spread over the week, without actually closing the shop on any particular day of the week. The learned Magistrate had, therefore, considered whether a reference should be made to the High Court or not. But he did not make a reference because he states that after giving the question his careful and anxious consideration, he was of opinion that section 11(1) of the Act is not ultra vires. This is made a ground for revision in that the learned Magistrate erred in declining to make a reference to this Court under Section 432 of the Criminal Procedure Code on the constitutional validity of section 11(1) of the Act.

The point for consideration, therefore, is whether when the revision petitioner gives each of his workers a day’s holiday in a week and complies with the provisions of section 11(2) of the Act, a compulsory closure of the shop for a day in the week as provided by section 11(1) of the Act is an unreasonable, arbitrary and excessive restriction beyond what is required in the interests of the general public and the closure is ultra vires.

To determine the point raised by the learned advocate for the revision petitioner it is necessary to set out section I1 of the impugned Act and the analogous