Case Note & Summary
The petitioner, Shri Appu M. Shetty, aged 70 years, is the proprietor of Hotel Sona, an eating house with a permit room located in Goregaon, Mumbai. He held a licence to keep a place of public entertainment (No. 37/Goregaon) and a special licence under section 33(xa) of the Bombay Police Act, 1951 to serve liquor. On 6 December 2009 at 00:35 hours, the Senior Inspector of Police, Prevention of Immoral Business Desk, Social Service Branch, Mumbai inspected the establishment. During the inspection, it was found that five lady waitresses were making obscene gestures and were in close contact with customers, who were showering Indian currency notes on them. The petitioner was not present at the time. One Rajesh Vishwanath Shetty was found conducting the business, and Dinesh Loku Poojari was working as manager. The petitioner had not obtained prior permission from the Licensing Authority for appointing these persons as agents, as required under Rule 8 of the Rules for Keeping the Places of Public Entertainment in Greater Bombay, 1953. Based on the inspection report, offences under section 33(w) read with section 131 of the Bombay Police Act were registered against Rajesh Shetty and Dinesh Poojari (C.R. Nos. 2088/2009 and 2089/2009), and against the five waitresses under section 110 of the Act (C.R. Nos. 2090/2009 to 2094/2009). The petitioner was not made an accused in any of these cases. However, the Licensing Authority issued an order suspending the petitioner's licence. The petitioner challenged this suspension by way of a writ petition. The court held that the petitioner cannot be held vicariously liable for the acts of his employees without his knowledge or consent, and that the suspension order was passed without affording an opportunity of hearing, violating principles of natural justice. The court quashed the suspension order and directed the Licensing Authority to consider the matter afresh after giving the petitioner a hearing.
Headnote
A) Bombay Police Act, 1951 - Section 33(w) - Vicarious Liability - Licencee not liable for acts of employees without his knowledge or consent - The court held that the licencee cannot be held vicariously liable for the acts of his employees unless it is shown that the acts were done with his knowledge or consent or that he failed to exercise due diligence. (Paras 4-5) B) Bombay Police Act, 1951 - Section 33(xa) - Special Licence - Suspension - Natural Justice - Suspension without prior notice or opportunity of hearing is violative of principles of natural justice - The court held that the impugned order of suspension was passed without giving any opportunity of hearing to the petitioner, and thus cannot be sustained. (Para 6) C) Bombay Police Act, 1951 - Section 33 - Rules for Keeping Places of Public Entertainment - Rule 8 - Prior Permission - Failure to obtain prior permission for appointment of agents does not automatically lead to suspension of licence - The court held that the breach of Rule 8, even if proved, does not warrant the extreme penalty of suspension of licence without considering the gravity of the breach. (Para 5)
Issue of Consideration
Whether the licencee of an eating house can be held vicariously liable for the acts of his employees without his knowledge or consent, and whether the suspension of licence without affording opportunity of hearing is valid.
Final Decision
The court quashed the impugned order of suspension and directed the Licensing Authority to consider the matter afresh after giving the petitioner an opportunity of hearing.
Law Points
- Vicarious liability
- strict construction of penal provisions
- natural justice
- proportionality of punishment
