( 1 ) THIS is a petition under Article 228 of the Constitution praying for transfer of a pending criminal case against the petitioner from the Court of the City Magistrate to this Court.

( 2 ) THE first petitioner, Matrumal Sharma is the proprietor of Sharma Restaurant in Aminabad, luckhow. Niranjan Lal Sharma, the second petitioner is its manager. Both of them are being criminally prosecuted under Section 27, U. P. Shops and Commercial Establishments Act, for failure to maintain a register of attendance of employees as required by Rule 13 framed under section 31 of the Act.

( 3 ) SECTION 26 provides:

"subject to any general or special order of the State Government, an employer shall maintain such registers and records and display such notices as may be prescribed. "

( 4 ) UNDER Section 31, the State Government is empowered to make rules to carry out the purposes of the Act. It expressly confers rule-making powers with, respect to the maintenance by the employer of registers and records and to regulate "matters which are to be or may be prescribed. "

( 5 ) RULE 13 enjoins that every employer must maintain a register of attendance and wages in form e and another register of holidays in form F. According to the prosecution case, the applicants are governed by the U. P. Shops and Commercial Establishments Act and they are liable to punishment under Section 27 for infringing the aforementioned rule. Section 27 makes the contravention by an employer of any provision of the Act or any rule or order made thereunder punishable with fine which may extend to fifty rupees for the first offence and to five hundred rupees for every subsequent offence after the first conviction.

( 6 ) THE defence was based principally on two grounds: (1) That the applicants were not governed by the Act in view of Section 4 which provides that it shall not apply to persons whose work is inherently intermittent such as a traveller or canvasser, it being urged that such was the nature of the work in the applicants restaurant, and (2) That the Act infringes the fundamental rights guaranteed under Articles 14 and 19 (1) of the Constitution.

( 7 ) THE criminal case was fixed for hearing in the Court of the City Magistrate for 23-7-1951. On that date the petitioner approached this Court for withdrawal of the case to the High Court under article 228 of the Constitution which lays down that:

"if the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may " (a) either dispose of the case itself, or " (b) determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such judgment. "

( 8 ) THE sole question which has been argued and which calls for determination is whether the case against the petitioners involves any substantial question as to the interpretation of the constitution, the determination of which is necessary for the disposal of the case. It has to be noticed in the first place that if the defence that the Act does not apply to the petitioners succeeds, no decision regarding the Constitutionality of the Act would arise. In order, however, to put an end to the controversy raised on behalf of the petitioners, we think it would be proper to dispose of the application on merits rather than to reject it on the ground that the decision of the constitutional point is not essential at this stage. We will proceed, therefore, to consider as to whether there is a substantial question of interpretation of the Constitution, in other words, whether the Act infringes the fundamental rights conferred by Articles 14 and 19 (1) (g) of the constitution on every citizen of the Indian

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