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J&K High Court · body

2010 DIGILAW 414 (JK)

Managing Director, Cable Car Corporation v. State

2010-07-29

Hasnain Massodi

body2010
1. Short, but important question involved in the present petition is whether the petitioner Corporation is an "Establishment" within the meaning of J&K Shops and Establishment Act, 1966 and thus required to carry out its operations in accordance with the provision of the Act and rules made thereunder; and liable to be punished in event it Act or rules made there under. 2. The petitioner Corporation is incorporated under J&K Aerials and Ropeways Act, 2002 and has set up an aerial ropeway connecting Gulmarg with Kongdoori and Afarwath, known as Gulmarg Gondola Project. The aerial ropeways is used by the tourists to Gulmarg, for visiting Kangdoori, Afarwath and other areas and also as a "fun ride". 3. It appears that the respondent No. 2 on 31.5.2009 inspected the premises of Gulmarg Cable Car Project and found the petitioner Corporation not to have registered itself as required under Section 6 of the Act, and to have violated some other Provisions of the Act, relating to maintenance of registers, records etc. The respondent No. 2 accordingly filed a complaint under Section 6(1) of the Act, read with Rule 73, 33, 77 of the Act, against the petitioner Corporation alleging violation of Section 6 (1), 37, 47 and 52 of the Act, read with rule 3 of Jammu and Kashmir Shops and Establishment Rules 1968. The Magistrate took cognizance in the complaint and issued process against the petitioner Corporation and its officers. 4. J&K Shops and Establishments Act, 1966 provides for regulation of conditions of work and employment in a shop, commercial establishments, residential hotels, restaurants , eating houses, theatres and other places of amusement or establishments. The Shops and Establishment Act, is essentially a welfare legislation intended to save the employees of shops and other establishments defined under the Act, from exploitation at the hands of their employers. 5. The Act, enables the Government to fix the working hours of employees as also time of commencement of the business in such establishments and the time of closure, so that the employees are not compelled to work before or beyond the fixed hours. It lays down that no employee shall be required to work in any shop or commercial establishment for more than nine hours on any day and 48 hours in a week. It lays down that no employee shall be required to work in any shop or commercial establishment for more than nine hours on any day and 48 hours in a week. An employee in terms of Act can neither be compelled nor can on his own do any over-time work beyond three hours. Every shop or commercial establishment has to remain closed one day in a week. 6. The Act prohibits employment of children and Section 25 prescribes daily working hours for young persons and women. It also provides for one months leave after every 12 months and 14 days casual leave in a year to an employee of Shop or Establishment falling within purview of the Act. 7. The above overview of the Act, makes it abundantly clear that the Act is primarily targeted at the employees of shops and establishments and intended to improve and regulate their working conditions. Having regard to the purpose and object of the Act, provisions of the Act are required to be interpreted liberally, so that the employees of an establishment satisfying the criteria laid down under the Act, are admitted to the benefits of the Act. The law makers in-view of the objects of the Act, empowered the Government to "declare any class of establishment or class of persons" to whom the Act, or any of the Provisions of the Act thereof does not for the time being apply, to be a class of establishments to which or class of persons to whom the Act or any provisions thereof shall apply. The legislation effort is to broaden its sweep so that more and more employees are benefited under the Act. In case the Provisions of the Act, are held to be applicable to Cable Corporation/ Gulmarg Cable Gandola project, the employees of Corporation shall be entitled to the benefits like fixed daily working hours, the holidays weekly as also leave with Payment of Wages etc. 8. The petitioner Corporation assails the order of Learned Mobile Magistrate Sopore, taking cognizance in the complaint as abuse of the process of Court on the grounds that the petitioner Corporation has been incorporated under Jammu and Kashmir Aerials and Ropeways Act, 2002 and is governed by the provisions of the said Act. 8. The petitioner Corporation assails the order of Learned Mobile Magistrate Sopore, taking cognizance in the complaint as abuse of the process of Court on the grounds that the petitioner Corporation has been incorporated under Jammu and Kashmir Aerials and Ropeways Act, 2002 and is governed by the provisions of the said Act. It is pleaded that the petitioner Corporation in the circumstances is not amenable to the jurisdiction of authorities including the respondent, under the Jammu and Kashmir Shops and Establishment Act, 1966, and is not under a legal duty to abide by the Act, and the rules made there-under. 9. Section 2 Sub- Section 8 defines "establishment" or "Shop" as under:- (8) "establishment" means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment to which this Act applies and includes such other establishments as the Government may by notification in the Government Gazette, declare to be an establishment for the purpose of this Act". 10. A bare look at S 2(8) of the Act reveals that the definition of the expression "Establishment" is inclusive and amongst other establishments/ business places, the expression includes the commercial establishments and places of public amusement or entertainment. Gulmarg Gondola Aerial Ropeways is not a mere means of transport between Gulmarg, Kangdoori and Afarwath. It is not used by the tourists only as a mean of transport from Gulmarg to other destinations. The facility is used as a "joy ride" by the tourists visiting Gulmarg and other adjoining health resorts. The petitioner Corporation does not charge fare from the tourists for the "joy ride" as is charged by the individuals or establishments running transport facilities for the commuters. Gulmarg Gondola Ropeway thus falls within the definition of establishment as defined under Section 2 (8) of the Act, and is amenable to the jurisdiction under Shops and Establishments Act, and the Corporation is required to abided by and adhere to the Act and Rules made there-under. Gulmarg Gondola Ropeway thus falls within the definition of establishment as defined under Section 2 (8) of the Act, and is amenable to the jurisdiction under Shops and Establishments Act, and the Corporation is required to abided by and adhere to the Act and Rules made there-under. Resultantly the petitioner Corporation inter-alia has to get itself registered under the Shops and Establishments Act, under Section 6, keep its facility open as per the time frame laid down under Section 9 of the Act, fix the working hours of its employees and extend benefits in accordance with Section 11 and 12 of the Act, pay its employees wages for the overtime work and also allow the rest interval and take other measures delineated out in the Act and Rules made thereunder. 11. The argument that the petitioner Corporation has been created under Jammu and Kashmir Shops and Establishments Act, and thus has no role to play in day today matter/work of the Corporation is bereft of any merit. Jammu and Kashmir Aerials Ropeways Act, 2002 is intended to authorise, facilitate and regulate the construction of the Aerial Ropeways in Jammu and Kashmir State. It provides for procedure and preliminary inspection in respect of setting up of Aerial Ropeways, constructions and maintenance of Aerial ropeways working, discontinuance and purchase of Aerial Ropeways. The Act does not regulate the working conditions of the employees of the Aerial Ropeways. The Aerial Ropeways Act thus is not in conflict with Jammu and Kashmir Shops and Establishments Act, nor does it enable the petitioner Corporation to escape its duties towards its employees as delineated in Jammu and Kashmir Shops and Establishments Act. 12. There may be a number of establishments that are created under and in accordance with a particular statute or their affairs are to be run in accordance with the Provisions of Statue, but such establishments are nonetheless governed by Jammu and Kashmir Shops and Establishments Act, as regard the working conditions of its employees. To illustrate a private educational institution is to be established in accordance with Jammu and Kashmir Education Act, 2002, or a shop or an eating place may have to get itself registered under Prevention of Food Adulteration Act, such establishments nonetheless are to obey and follow the Shops and Establishments Act, as regards the matters governing working conditions of employees. To illustrate a private educational institution is to be established in accordance with Jammu and Kashmir Education Act, 2002, or a shop or an eating place may have to get itself registered under Prevention of Food Adulteration Act, such establishments nonetheless are to obey and follow the Shops and Establishments Act, as regards the matters governing working conditions of employees. Same is true about private dispensaries, private hospitals, private nursing homes, officers of Chartered Accountants declared as Establishments vide SRO 740 of 1978 within the meaning of Jammu and Kashmir Shops and Establishments Act. 13. For the reasons discussed, there is no merit in the petition and exercise of inherent powers under Section 561-A is not called for. The petition is accordingly dismissed. 14. The parties shall appear before the Trial Court on 10.8.2010. The record, if any, be send down. The Trial Court shall proceed with the complaint in accordance with law.