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1998 (11) TMI 674 - SUPREME COURT OF INDIA

1998 (11) TMI 674 - SUPREME COURT OF INDIA - 1999 AIR 188, 1998 (2) Suppl. SCR 632, 1998 (8) SCC 227, 1998 (7) JT 532, 1998 (6) SCALE 107 - C.A. 5585 of 1993 - Dated:- 11-11-1998 - Ahmad Saghir S., And Kirpal B.N., JJ. JUDGMENT: S. Saghir Ahmad, J. The classic Judgment of Patanjali Sastri, C.J. "in State of Madras vs. V. G. Row. 1952 SCR 597 = AIR 1952 SC 196, has again to be referred to and relied upon in this case to settle the controversy regarding the constitutional validity of the Kera .....

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with the addition of 2nd of October as Mahatma Gandhi s Birthday) and festival holidays were increased from four to nine. The total number of compulsory paid holidays were thus raised from seven to thirteen. This alteration was challenge by the appellants on the ground that the holidays, national and festival, so increased were violative of the Fundamental Right guaranteed to them under Article l9(i)(g) to carry on their trade, business or profession. It was also challenged en the ground of arbi .....

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(b) ................................... (c) ................................... (d) ................................... (e) ................................... (f) ................................... (g) to practice any profession, or to carry on any occupation, trade or business." Sub-clause (6) of this Article provides as under:- "(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making a .....

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or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise." Fundamental Rights guaranteed by Article 19 are the basic and natural Rights inherent in the citizen of a free country but none of the seven Rights, guaranteed by Article 19(1), is an absolute Right as each of the Rights is liable to be controlled, curtailed and regulated by laws made by the State to the extent set out i .....

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profession or carry on any occupation, trade or business. This is a right distinct from Article 301 which relates to trade, commerce or intercourse both with and within the State. As pointed out earlier, the Right under Article 19M)(g) is not absolute in terms but is subject to reasonable restrictions contemplated by Clause (6) thereof. The test of reasonableness of restrictions was considered by this Court on several occasions but all the decisions are not being referred to and only a few are m .....

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ss can be laid down-as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent ana urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable in all the circumstances of a given case, it is inevitable that the s .....

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ions, considered them to be reasonable. " This decision was followed in Mineral Development Ltd. vs. State of Bihar. (1960) 2 SCR 609 = AIR 1960 SC 466, and it was laid down that the principles set out by Patanjali Sastri, C.J., have to be considered and kept in view by the Courts in deciding whether a particular Statute satisfies the objective test of reasonableness. The observations of Patanjali Sastri, C.J., were again approved In Collector of Customs, Madras vs. Nathella Sampathu Chetty .....

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and followed in M/s Laxmi Khandsari vs. State of U. P. & Ors., AIR 1981 SC 873 = 1981 (2) SCC 600. In examining the reasonableness of a statutory provision, whether it is violative of the Fundamental Right guaranteed under Article 19, one cannot lose sight of the Directive Principles of State Policy contained in Chapter IV of the Constitution as was laid down by this Court in Saghir Ahmad vs. State of U.P., AIR 1954 SC728 = (1955) 1 SCR 707 as also in Mohd. Hanif Qureshi vs. State of Bihar. .....

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s to keep in mind the Directive Principles of State Policy. 2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. 3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Con .....

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ons imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See: Kavalappara Kottarathil Kochuni @ Moopil Nayar vs. States of Madras and Kerala. (1960) 3 SCR 887 = AIR 1960 SC 1080; O.K. Ghosh vs. E.X. Joseph. (1963) Supp. (1) SCR 789 = AIR 1963 SC 812) Having regard to what has been set out above, we may now proceed to consider the .....

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ng serious loss of production apart from heavy financial liability of making payment of salary or wages to the employees and labour for the closed days. The restriction placed on this right for keeping their industries closed on national and festival holidays cannot be treated as reasonable within the meaning of Clause (6) of Article 19. This, it is contended, is in contravention of the right guaranteed to them under Article 19(1)(g). The Directive Principles of State Policy are not enforceable .....

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provides as under : "43. Living wage, etc., for workers.-The state shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.&q .....

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ghout and should not avail of any holiday is not the philosophy of Article 43. As human beings they are entitled to a period of rest which would enable them to fully enjoy their leisure and participate in social and cultural activities. It was for this reason that this Court in Manohar Lal vs. State of Punjab). (1961) 2 SCR 343 = AIR 1961 SC 418, upheld the compulsory closure of shop on one day. This decision was followed in Ramdhandas vs. State of Punjab. (1962) 1 SCR 852 = AIR 1961 SC 1559 uph .....

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mum Wages Act in U. Unichoyi vs. State of Kerala. (1962) 1 SCR 946 = AIR 1962 SC 12; Payment of Bonus Act in Jalan Trading Co. Pvt. Ltd. vs. P.M. Aney. AIR 1979 SC 233 = 1979 (3) SCO 220 whereunder compulsory payment of minimum statutory bonus even in the years of loss was held to be valid and reasonable under Article 19(6) of the Constitution. Coming now to some decisions of the High Courts, we may mention that the Bombay High Court in State of Bombay vs. V.M. Jawadekar, 62 Bombay Law Report 18 .....

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were upheld in BabaJan Mir Zahiruddin vs. State of Mysore and another, AIR 1957. Mysore 64; the provisions of Ajmer Shops and Establishments Act were upheld in Bhanwarlal and others vs. State of Rajasthan and other, AIR 1959 Rajasthan 257; the restrictions placed under Madras Shops and Establishments Act, 1947 were held to be reasonable in Sadasivam vs. State of Madras, AIR 1957 Madras 144. So also the Andhra Pradesh High Court in Grandhi Mangaraju, Manager, Brothers Shop and Branches, Rajam, Sr .....

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e Government took into consideration the change in social conditions, the developments in the-State and the number 12 of holidays enjoyed by other sectors. It was pleaded that the outlook towards labour has undergone a drastic change since the enactment of the Parent Act in 1958. The contention of the appellants that the increase in holidays would result in the loss Of production was refuted by the State on the ground that the power to Increase production required healthy labour force. Some recr .....

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d a report. As per the analysis made in that report, it was noticed that the number of paid holidays available to industrial workers in the public sector in Kerala ranged from seven to twenty one days and in private sector, from seven to seventeen days. It was also noticed that the Government of India had declared sixteen holidays while Government of Kerala had declared eighteen holidays for the year 1990 which were repeated in 1991. Having regard to the factors enumerated in the counter-affidav .....

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efore, cannot be treated to be violative of the Fundamental Right under Article 19(1)(g). The plea under Article 14 also cannot be entertained. The decision by legislative amendment to raise the national and festival holidays is based upon relevant material considered by the Government, including the fact that the holidays allowed by the Central Government and other public sector undertakings were far greater in number than those prescribed under the Act. As pointed out earlier the Act is a soci .....

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