SHER ZAMAN AND Others vs GOVERNMENT OF N. W. F. P. AND Other

ORDER

MIAN BURHANUDDIN KHAN, J.--This petition for leave to appeal is directed against the judgment of the Peshawar High Court dated 23-6-1982 in Writ Petition No. 85 of 1980.

2. The petitioners who are barbers, by profession, challenged the validity of Notifications dated 2-4- 1974, 12-1-1980 and 21-1-1980 issued under sections 4 and 5 of the West Pakistan Shops & Establishments Ordinance, 1969, issued by respondent No. 1 whereby it was directed that the barbers' and hair-dressers' shops shall remain entirely closed on Monday and shall not be exempt from the operation of the provisions of clause (a) of subsection (1) of section 6 and section 7 of the Ordinance and the Hammams and Saqqawas shall also remain closed on Monday.

3. Learned counsel for the petitioners contended that Ordinance VIII of 1969 is not applicable to the N.-W. F. P. As it was made applicable under section 1 (3) only to those areas where any law on the subject was applicable and to such establishments or classes thereof where the said laws were applied. Thus the learned Judges of the High Court have misconceived the legal position in that the repealed Act was held applicable to the North--West Frontier Province ; that the preamble of the Ordinance would show that it relates to employees' hours and conditions of work and has nothing to do with shops run solely by the owners or members of their families and this view is supported by Explanation to section 14. He further contended that the aforesaid Ordinance is not applicable to barbers and hair-dressers as specifically mentioned in clause (vii) of subsection (2) of section of he Ordinance and to a shop as defined in section 2 clause (u) and also in proviso to clause (v), subsection (2) of section 2 which defines `commercial establishment' ; and as such both barbers' shops and Saqawwas are excluded from the purview of the said Ordinance ; that section 6 provides one Close day' in a week for every establishment and since establishment and shops have been separately defined, the provision is applicable to every establishment unless otherwise provided but not to every shop as the word `shop' has not been intentionally used ; that Notifications issued on 2-4-1974 and 12-1-1980 are also bad in law as the shops of the petitioners were already exempted under the provisions of the Ordinance and as such Notifica--petition granting exemption is redundant and a nullity in the eyes of law and the condition placed is also not warranted by law ; that the respondent could grant exemption under section 4 but could not take away any exemption under section 4 nor could he pass conditional order. It was also argued by the learned counsel that the Ordinance provides Fridays and Sundays as `closed day' under section 6 (4) while any other day has been left to the option of the employer under subsection (5) of section 6. He argued that Notification dated 2-4-1974 directing that Barbers and Hair-dressers shall not be exempted from the operation of clause (a) subsection (1) of sections 6 and 7 which is also not a valid Notification as the exemption given under section 5 has neither been repealed nor withdrawn and no further exemption or non exemption was necessary as the words "shall not be exempted" denote a new action to be taken in future but the position is that they have already been exempted under the law.

4. We have carefully examined the points raised by the learned counsel. Under the Validation of Laws Act, 1975 assented to by the President on the 14th July, 1975, this Ordinance at serial No. 5 under the beading West Pakistan Ordinances in the Schedule to the said Act, stood validated within the period prescribed in the Constitution of 1973. We also find that before the promulgation of the Ordinance the repealed Act was in force in the then N: W. F. P. But its provisions were only applicable in the Municipal and Cantonment Limits. It follows that the position prevailing at the time of coming into force of the Ordinance was that the repealed Act was applicable to all Municipal and Cantonment areas in the then Province of N. W. F. And on the coming into force of the Ordinance, per subsection (3) of section 1 thereof, the Ordinance came into force from the date of its promulgation, in all the Municipal and Cantonment limits of the area which then formed part of the province of N: W. F. P. And were incorporated into the then Province of West Pakistan.

5. As regards the establishments, the repealed Act in its section 4 provided that the provisions of sections 9 and 10 thereof, which related to the opening and closing hours of the establishments, and observance closed day by such establishments, were inapplicable to the Barbers and Hair- dressers' shops. The remaining provisions of the repealed Act were; however, applicable even to such shops and on the promulgation of the Ordinance, all its provisions, by virtue of subsection (3) of section 1 came into force in all the Municipal and Cantonment limits. Therefore, the provisions of the Ordinance, by virtue of the subsection referred to above automatically applied to all the establishments including barbers and hair dressers' shops. Provisions of clause (a) of subsection

(1) of sections 6 and I were, however, brought into operation qua such shops by Notification issues on 2-4-1974 under clause (4) of section 5 of the Ordinance, exemption available to such shops under subsection (2) of section 5 was taken away.

6. By subsection (4) of section 1 of the Ordinance, power has been given, to the Government, to extend, by means of Notification, the operation of the Ordinance or any provisions thereof to any other area or establishment. By the same provision Government has been authorised to enable any area) or establishment from the operation of the Ordinance. Again in subsection (4) of section 1 of the Ordinance provision has been made to authorise their Government to exempt, by Notification in the official Gazette, any establishment or any class thereof or any employer or employee or class of employers or employees from the operation of all or any of the provisions of the Ordinance. Thus it would show that the Legislature was conscious of the fact that the social circumstances and environments and the working conditions of the persons employed in different categories of shops and establishments were the matters under constant change and it could not be visualised with exactness at the time of making the law. We find no force in the contentions raised by the learned counsel. This petition, is accordingly, dismissed.