P L D 1962 (W (PLP)

FAIZULLAH, J.

This is an appeal by the State against the order dated 9th June 1961, : f Pir Sayyed Hussain Jan, Magistrate 1st Class, Mardan acquitting the respondent, na-nely, Muhammad Yusuf Khan, a shopkeeper of Mardao, who was charged under section 10 (1) (2) and section 15 (1) of the North-West Frontier Province Trade Employees Act (No. XX of 1947), (hereinafter to be referred to as the Act).

2. The question raised in the appeal turns on the interpreta?tion of section 10 (1) of the Act, which directs that "every shop or commercial establishment shall remain closed on a close day."

3. The learned Magistrate after stating the object of the Act held that "it was abundantly clear stow that the Act is meant to limit the hours of work of shop assistants and commercial employees and to make certain regulations concerning their holidays etc." The learned Magistrate proceeded to state that it was not the case of the prosecution that the accused had any shop assistant, and as such, he was "exempt from the operation of this Act and was not bound to declare any close day or exhibit any notice to that effect."

4. Syed Ghazanfar Ali Shah, Additional Advocate-General; on behalf of the State, vehemently argued that the object of a statute or the preamble could not be used to control or restrict the provisions of a statute which were plain or unambiguous, and that as a general rule the purpose for which the enactment was brought on the statute book and the preamble of the statute could be looked into only if certain provisions of the enactment in question were ambiguous. It was argued that in the present case, the provisions of section 10 esl-1-ciaiiy subsection (1) in very clear terms provide that "every shop or commercial establishment shall remain closed on a close day," and as such, the object of the Act or the preamble could not be looked into while interpret?ing that provision.

5. Qazi Sabah-ud-Din, Advocate, the learned counsel for the respondent, on the other hand, argued that the sole object of the Act was to limit the hours of work for which "the shop assistants and commercial employees could be employed by their employers." In other words, it was argued that section 10 in regard to "close days" was not intended to cover the cases of shops or commercial establishments which did not employ any shop assistants or commercial employees. To put it differently, if the occupier of the shop was the proprietor himself or worked the shop on a close day with the help of any family members who did not receive any remuneration, the provisions of section 10 (1) were not attracted, and in such a case he was not under any legal obligation to exhibit in the shop or commercial establishment a notice in the prescribed form and in the prescribed manner setting forth the close day, as envisaged by subsection (1) of section

15. To support his argument, our attention was Invited to a Memo No. 9263-DD/24/18, dated 11th June 1952, from the Secretary to Government, N.-W. F. P., Development Department, to the Deputy Commissioner, Kohat, In which it was stated that "the underlying idea of the framers of these enactments was not to provide relief to the proprietors of business firms, etc. If for any reason a shopkeeper does not engage a person to assist him in his trade, the provisions of these Acts are not, of course, applicable to him."

6. For the proper understanding of the point raised in the appeal, it will be necessary to examine certain provisions of the Act. We would first refer to the title of the Act, which is in the following language :- "An Act to limit the hours of work of shop assistants and commercial employees and to make certain regulations con?cerning their holidays, wages and terms of service." Then comes the preamble, which is in the following terms :- "Whereas it is expedient to limit the hours of work of shop assistants and commercial employees and to make certain regulations concerning their holidays, wages, and terms of service ; it Is hereby enacted as follows :-." The next and the most important provisions which are material for the point under discussion are subsections (1) and (2) (i) of section 10 which are to the following effect :- "10. (1) Save as otherwise provided by this Act, every shop or commercial establishment shall remain closed on a close day. (2) (i) This choice of a close day shall rest with the occupier of a shop or commercial establishment but shall be restricted to Sunday and Friday and shall be Intimated to the prescribed authority within two months of the date on which this Act comes into force." The last provision material for the purpose of discussion Is section 15, which reads as follows :- 15. (1) The occupier of every shop or commercial establish?ment, shall in the prescribed form and in the prescribed manner, keep exhibited In the shop or commercial establishment a notice setting forth the close day. (2) The occupier of any shop or commercial establishment about the business of which persons are employed shall in the prescribed form and in the prescribed manner keep a record of the hours worked and the amount of leave taken by, and of the intervals allowed for rest and meals to, every person employed about the business of the shop or commercial establishment, and particulars of all employment overtime shall be separately entered in the record."

7. As regards the purpose for which the title or a preamble of the Act can be used, it is a well-established rule of ipterpreta?tion of statutes that these may provide a good means of finding out the real meaning of the provisions of the statute, which are not char, are capable of more than one interpretation, b qt neither the object of the Act nor the preamble can be permitted either to restrict or extend the enacting part, when the language of the pointed out it is not open find deserves enacting part is not exactly co-extensive with the preamble, and in many Acts, although a particular mischief is recited, the legislative provisions extend beyond it. In this connection we may borrow the words of Lord Denman in Fellowes v. Clay ((1843) 4 Q B 349), when he said :- "The evil recited is but the motive for legislation ; the remedy may both consistently and wisely be extended beyond the sure of that evil, and if on a review of the whole Act a wider intention than that expressed in the preamble appears to be the real one, effect is to be given to it notwithstanding the less extensive Import of the preamble." In Reigate Rural Council v. Sutton District Water Co. ((1908) 99 L T 168, 170), it was observed as under :- "And generally, although in cases where the meaning of words used In a statute Is absolutely clear the Court has no right to go beyond them, when the words are capable of one meaning, and at the same time of a more extended meaning, the Court will look to the object and policy of the Act to see what meaning they ought to have."

8. We would wind up the examination of authorities in regard to the scope and the purpose for which the title and preamble of the Act can be used by quoting from "Maxwell" on the Interpretation of Statutes, 11 Edition at page 41, where the learned author sums up the discussion on this subject thus .- "But the title cannot override the clear meaning of the enactment." The learned author at the same page then quoted the following passage from the judgment in Willmot v. Rose ((1854) 23 L J QA 281) :- "There is no doubt as to the construction to be put upon the words of the . . . section, though it clearly exceeds both the title and the preamble . . . We are bound to give to the section its full construction."

9. It follows from the above authorities that the general object and intention of the Legislature in passing the enactment may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one meaning. We have, therefore, to see as to whether the material provision of section 10, namely, subsection (1), is plain or admits of any ambiguity which can be resolved with the aid of the preamble or the title of the Act. After giving our careful consideration to the language of subsection (1), we are clearly of the view that the said provision is very plain and does not at all admit of any ambiguity in that the word "every" before the words "shops and commercial establishments" clearly emphasises that all shops and commercial establishments irrespective of the fact whether they run their business through shop assistants, commercial employees, or the same are run by the proprietors themselves or with the aid of their family members without paying them any remunera?tion come within the mischief of subsection (1). A few of the meanings of the word "every", as given in the Webster's New International Dictionary, are as follows:- (1) Each, without exception of a class of group. (2) All, taken severally. (3) Every one.

10. Section 15 read along with section 10 (1) makes it abundantly clear that all shops and commercial establishments, whether employing any employees or working the concerns them?selves, are to observe a "close day". In the language in which section 15 is couched the Legislature has shown a clear awareness of two categories of cases, (1) in which the shops or commercial establishments may be worked by the proprietors themselves without using the service of the "employees" within the meaning of the Act, and (2) in which employees are engaged. In case the Legislature intended to exempt the proprietors of shops or commercial establishments which did not engage the services of employees, in that case subsection (1) of section 15 would be rendered wholly superfluous for the short and good reason that that provision requires every shop or commercial establishment to exhibit in the shop or commercial establishment a notice setting forth the close day. It will be observed that the language of section 15 subsection (1) in terms does not make any distinction between shops run by the proprietors or run with the aid of employees.

11. So far we have been discussing the point untrammalled by any authority. We now propose to examine few authorities. Precisely the very same question involving the interpretation of section 7 of the Punjab Trade Employees Act, 1940 (hereinafter to be, referred to as the Act of 1940), came up for decision in the case of Tulsi Ram v. Emperor (A I R 1944 Lah. 876). It is important to observe here that not only the language of the title and the preamble of the Act of 1940 is a verbatim copy of the Act, but section 10 (1) and (2) as also section 15 (2) of the Act have been word by word borrowed from the analogous provisions, namely, sections 7 and 12, respectively, of the Act of 1940. In Tulsi Ram v. Emperor, the facts of the case were that Tulsi Ram was a military contractor and had taken a contract from the Army for the supply of tents. These tents were actually made on his premises by a number of tent-makers who did not receive fixed wages but were paid on piece-work terms. Section 7 of that Act which, as already stated, is analogous to section 10 of the Act, directed that every shop and commercial establishment shall remain closed on a close day. Tulsi Ram was fined Rs. 25 by the Additional District Magistrate of Ferozpore for infraction of section 7 of the Punjab Trade Employees Act and he went up in revision to the High Court. It was contended on behalf of the petitioner that the premises in which those tent-makers were working was not a commercial establishment within the meaning of that Act and It was further contended that if it were such an establishment within the actual grammatical language of the definition, that definition should be so construed as not to include any establishment in which the persons working were not "employees" within the meaning of Act (italicised is ours). Blacker, J., repelling this argument at page 377 summed up the position tersely as follows :- "With regard to the second objection, there seems to be at first sight more force In It, but on a careful examination I think that it too must fail. No doubt according to certain principles of the interpretation of statutes a provision in an Act should not be deemed to alter the existing law where such alteration would clearly go beyond the avowed scope and intention of that Act. On this argument it is contended that this is an Act dealing only with employees, not only on account of its title but on account of the preamble which runs as under: ?Whereas it is expedient to regulate the hours of employment of persons who are employed about the business of shops or commercial establishments ; it is hereby enacted as follows :' Now, persons, who are employed are clearly employees. An `employee is defined in subsection (a) of section 2 as any person wholly or mainly employed on wages In connection with any trade or business usually carried on in the shops or commercial establishments.' It is contended that the tent-makers in this case were not employees but were sub-contractors, and the mere fact that these sub-contractors were all working together In the peti?tioner's premises does not make them his employees. Counsel for the petitioner relied on certain English judgments for his contention that a contractor was not a servant. Although these judgments specifically dealt with the question of torts committed by contractors, I think it may readily be conceded that usually the status of a sub-contractor Is different from that of an employee. Prima facie, therefore, it would appear that this Act was made for the betterment of the conditions of the employees and not for the betterment of the conditions of sub-contractors. It seems to me, however, that this Is not the end of the matter, because It is clear from the scheme of the Act that while other provisions of this Act are clearly applic?able only to employees, that word is not used either in section 7, the relevant section, or In section 6 which deals with opening and closing hours. On examining the question I see no reason for thinking that this omission of any reference to employees in these two sections is not deliberate on the part of the Legisla?ture. It seems to me that these words may have well been omitted in these sections in order to prevent an evasion of the law by enabling persons to keep their shops and commercial establishments open by the simple device of paying their hands on a piece-work basis rather than by daily wages. The con?sequences of such evasions may well have been present to the minds of the Legislature. It would be clear that if a person by this device could keep his shop open seven days a week and twenty hours a day he would be at great advantage over a man who had to close his shop every seventh day and was only able to keep It open for a limited number of hours a day."

12. The next authority from which we wish to quote is a passage from "Maxwell" on the Interpretation of Statutes. At page 46, the learned commentator observed thus :- "Generally (although in cases where the meaning of words used in a statute is absolutely clear the Court has no right to go beyond them), when the words are capable of one meaning, and at the same time of a more extended meaning, the Court will look to the object and policy of the Act to see what meaning they ought to have. Thus the Abduction Act, 1557, made the abduction of all girls under sixteen penal, though the preamble referred only to heiresses and other girls with fortuness. "

13. It follows from the above discussion that the order of acquittal of the respondent cannot be sustained. We accord?ingly accept the State appeal, convict the respondent of offences under sections 10 and 15 of the Act.

14. As regards the sentence, we think a nominal sentence is called for because not only the respondent was labouring under the mistaken belief that the provisions of sections 10 and 15 were not attracted in the case of shops run by the proprietors who did not utilise the services of employees, but this mistaken view was unfortunately shared even by a high placed official like the Secretary to Government, N: W. F. P., Development Department, as indicated In his Memo. No. 9268-DD/24/18, dated 11th June 1952, to the address of Deputy Commissioner, Kohat (referred to above). We accordingly sentence the respondent to a fine of Rs. 10 under section 10, and to a fine of Rs. 3 under section

15. In default to payment of fine, the respondent should undergo simple imprisonment for one day on each count. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.