JUDGMENT Raghubar Dayal, J.
1. This is an appeal by the Local Government against the acquittal of the respondent of an offence under Section 12, U. P. Shops and Commercial Establishments Act (Act XXII [22] of 1947).
2. The respondent is the proprietor of a news agency called the Singhal News Agency, Aligrah. Admittedly, he did not allow one day's holiday in the week to his employees.
3. The contention for the prosecution is that the respondent's failure to allow one day's holiday in a week to his employees amounted to a contravention of the provisions of Section 12, U. P. Shops and Commercial Establishments Act (Act XXII [22] of 1947). The defence of the accused was that he did not contravene these provisions in so far as his employees did not work for more than 48 hours in a week and that Section 12 really enjoned the giving of one day's holiday to such employees whose total period of employment in the week was less (Sic.) than 48 hours. The learned Magistrate accepted the respondent's contention and acquitted him ; hence this appeal.
4. We do not agree with the interpretation of Section 12 of the Act by the learned Magistrate. Section 12 is:
"Every employee of a shop or commercial establishment except a watchman or care-taker shall be allowed by the employer in each week a holiday of one whole day besides such holiday or holidays as may be granted under Section 11:
Provided that nothing in this section shall apply to any person whose total period of employment in the week including any days spent on authorised leave or on holiday under Section 11 is less than six days ; or entitle to an additional holiday an employee who has been allowed a whole holiday on the close day under Section 10."
5. What Section 12 of the Act requires is a holiday of one whole day which should mean a total period of 24 hours. The word 'day' is defined in Section 2, Sub-section (4) of the Act and means :
"the period of 24 hours beginning at midnight, provided that in the case of an employee, whose hours of work extend beyond mid-night. It means the period of 24 hours beginning when such employment commences, irrespective of midnight."
This definition, in no way, enlarges the meaning of the word, 'day.' It just denotes the period of 24 hours which would be deemed to be a day for purposes of this Act. The effect of the words whole day, must be that the holiday enjoined in Section 12 must be for the full period of 24 hours.
6. Similarly, Section 10 of the Act provides for the closing of a shop or commercial establishment on one day of the week and such day is called the close day. If any shop or commercial establishment allows a whole day on the close day under Section 10, that is not required to give one whole day's holiday under Section 12 as well.
7. It would follow, therefore, that the benefit of one whole day's holiday under Section 12 is lost to the employees of such shops and commercial establishments which allow a whole day's holiday on the close day.
8. Keeping these considerations in View, it should appear that the first portion of the proviso means that the provisions of Section 12 will not apply to such persons who, for some reason, had not worked on any one or more days in the week. It is obvious that the employees who work every day of the week and do not put in actual work for more than 48 hours as appears to be the case with the employees of the respondent, do not enjoy a holiday of one whole day on any day in the week.
9. Learned counsel for the respondent has strenuously argued that the words, 'total period of employment' in the proviso, indicate the total period of actual work and that, therefore, the words, 'six days' in the proviso should be interpreted as meaning six days of 8 hours a day ; that is equivalent to 48 hours in all. We see no justification for interpreting the proviso in this manner. There is nothing in the Act to support the contention that the word, "day" should, in any circumstances, be treated as equivalent to 8 hours' work. The only section to which reference can be made in this connection and was made by the learned counsel for the respondent is Section 8 of the Act. It is:
"No employer shall allow or require any employee to work for more than eight hours in any day, exclusive of intervals allowed for rest or for meals :
Provided that during any period of stock taking, making of accounts or any other purpose prescribed, any person, other than a young person, may be allowed or required to work for more than the hours fixed in this section, but not exceeding one hundred and twenty hours in the aggregate in any year :
Provided also that any person employed on overtime shall be entitled to remuneration for such overtime work at twice the rate of his normal remuneration calculated by the hour.
Explanation:-- For the purpose of calculating the normal hourly wage the day shall be reckoned as consisting of eight working hours :
Provided further that this section including the explanation, in its application to a child or to a young person, shall be so read and construed as if, for the words, 'eight hours', 'six hours' were substituted."
It no doubt enjoins that an employee should not ordinarily be made to work for more than eight hours on any day. It provides for certain exceptional circumstances in which an employee may be asked to work for a larger number of hours on some days. The explanation is very, explicit and is to the effect that the day shall be reckoned as consisting, of eight working hours for the purpose of calculating the normal hourly wage. This does not mean that the day is to be reckoned as consisting of eight working hours for all purposes. If that had been the intention of the legislature, the explanation would have simply read 'the day shall be reckoned as consisting of eight working hours' and would have omitted to mention the purpose for which such a reckoning is to be made. We are of opinion that this explanation in Section 8 really goes against the interpretation suggested by the learned counsel fox the respondent.
10. We are, therefore, of opinion that the respondent contravened the provisions of Section 12 of the Act in not giving one whole day's holiday to his employees in a week and that the fact that his employees worked for less than 48 hours in a week does not bring his case within the proviso to Section 12. The learned Magistrate was wrong in holding otherwise.
11. We, therefore, allow the appeal, set aside the order of the learned Magistrate and convict the respondent under Section 12 of the Act.
12. There is the evidence on record that the respondent was repeatedly warned by the authorities in this respect and that the respondent disregarded those warnings, of course taking stand on his own interpretation of the proviso to Section 12. We, therefore, sentence him to a fine of Rs. 25, the same being payable within a month of this day. In case of default, the respondent shall undergo simple imprisonment for one month.