AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
1962 (9) TMI 101
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.... at his house. He has a clerk who looks after the Court work. The clerk is a registered clerk under the rules of the High Court. The petitioner is governed by the Legal Practitioners Act and the Advocates Act. The petitioner, it is claimed, is also an officer of the Court, and is not running any firm or business, or organising any commercial establishment. 4. The petitioner in his capacity as Secretary of the High Court Bar Association, received from the Market Superintendent of respondent No. 1 Corporation of the city of Nagpur a letter dated 23-1-62. In this letter the Market Superintendent intimated to the petitioner that the Bombay Shops and Establishments Act, 1948, has been made ap-plicable to Vidharbha region with effect from-1-10-61. He therefore forwarded 25 forms which could be used by members of the High Court Bar Association. He also stated that any further requirement may be referred to the Market Superintendent. A copy of the form which was forwarded by the Market Superintendent is to be found at page 10 as Annexure B to the petition. This form is prescribed according to Rule 5 of the Rules-framed by the State Government under the Bombay Shops and Establishments Ac....
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....arnavis, the learned Assistant Government Pleader on behalf of the State. 6. Before noticing the rival contentions ol the parties it will be advantageous to examine the several provisions of the Shops Act and the scheme (underlying it. The preamble of the Act shows that the Act, which is a consolidating and amending Act, is put on the statute book to regulate condi-tions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres and other places of public amusement and entertainment and also other esta-'blishments. Section 2 gives statutory definitions of several expressions used in the Act. In particular the definitions of "commercial establishment", "employer", "shop", will need a careful examination. As already stated, Section 7 requires the employer of every establishment to send to the Inspector a statement in the prescribed form so that on verification the establishment will be registered in a register of establishments in the prescribed manner. On such registration a registration certificate is required to be issued to the employer who applies for registration. Any change in the information communicated at the ....
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....e definition in the Act. Section 32 prohibits any child being required or allowed to work whether as employee or otherwise in any establishment, notwithstanding that such child is a member of the family of the employer. Similarly under Section 32 no young person or woman can be required or allowed to work in the establishment before 6 a. m. or after 7 p.m. notwithstanding, again, that such a young person or woman is member of the family of the employer. The daily hours of employment for the young person are fixed at a maximum of six hours under Section 34. There is a prohibition to the employment of a young person or woman in any establishment, which is declared by the Government to involve work dangerous to the life, health or morals. Chapter VII provides for leave, with pay and payment of wages of persons employed in an establishment. Provision is made for application of the provisions of the Payment ol Wages Act for realisation of wages and under Section 38-A provisions of the Workmen's Compensation Act have also been made applicable in respect of employees other than those who are in receipt of monthly wages of Rs. 500/-. Provisions regarding health and safety of the employ....
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....e State Government is empowered to prescribe authorities which shall determine whether in a given case a person is or is not an employer for the purpose of the Act. There are other miscellaneous provisions in Chapter XI, all intended for furtherance of the objective with which, the Act has been made. 9. We may only notice now three provisions namely, Sections 4, 5 and 6 of the Act, which have a bearing. Under Section 4 certain provisions of the Act have been excluded from application in respect of establishments mentioned in Schedule II. Now, this Schedule II originally contained only 6 entries, and all the provisions of the Act have been excluded from application to them when the Act was put on the statute book. But the Stata Government has been given power under Section 4 by a notification published in the Gazette to add to, omit, or alter any of the entries in this Schedule. The State Government has exercised this power from time to time and added items to Schedule II which now are 84 in number. In adding these items the State Government has either exempted the establishment concerned from all the provisions or only some of the provisions of the Act. A further power is given ....
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....n of 'Shop' is given in Section 2(27) oGBP the Act as follows : - " 'Shop' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a store room, godown, ware-house or workplace, whether in the same premises or otherwise, mainly used in connection with such trade or business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment." The above definition, according to the petitioner, includes several categories such as shops, Commercial establishment, residential hotels, restaurants, eating houses, theatres and other places of public amusement or entertainment. It is not the contention of the opponents that the petitioner is an employer or owns or has ultimate control over any other type of establishments, but it is contended that he certainly owns or has control over what is defined as a 'commercial establishment'. Now, what is a commercial establishment is also defined in Section 2(4) of the Act. That definition is as follows: - " 'Commercial establishment&....
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.... or profession is carried on which is to be considered as within the meaning of the Act but that establishment must be a commercial establishment. By reference to the dictionary meaning of the word "commercial" it is urged, the basic idea of a commercial activity postulates some sort of trade. The Concise Oxford English Dictionary defines "commercial" as meaning engaged in, or bearing on, commerce". Thus the idea that is conveyed by use of the word "commercial" must necessarily postulate some kind of commercial activity. Similarly, according to the petitioner, the use of the word "establishment" postulates an organised body of men maintained for a particular purpose. Unless the word is used in this sense, the petitioner urges, the phrase "an establishment which carries on any business, trade or profession" cannot have any rational meaning. The word "establishment" cannot be equated to mere premises firstly because premises themselves do not carry on any business and also because wherever it is intended to indicate one or the other of the establishments, defined in Section 2(8) of the Act as referring to premises, the Act has used the word so defining them. For instance, "shop" in S....
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....the profession of an Advocate is certainly not one which could be said to partake of the character of a commercial activity or commercial transaction. The petitioner urged that the profession of law or that of an Advocate is variously described as a liberal profession i.e., a literary profession and many times even as a noble profession. It requires a specialised skill and training. Everyona is not entitled to practise at law or appear iu Courts unless he obtains a certificate or an enrolment under the provisions of the various laws. An Advocate works under strict disciplines of several authorities and is subject io rigid code of conduct of his profession both in Courts as well as outside. Whether that code is prescribed by a chosen body of men like the Bar Council or by statute, or by the judicial authorities, the important fact to be noted is that nobody can practise law without being subject to these disciplines. A lawyer is not entitled to canvass for his brief. He is under certain obligations and duty to the Court. In fact, he is described as an officer of the Court and is an important part in the whole machinery for administration of justice. It is therefore claimed that he p....
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....ated, receive full effect, whatever may be the consequences. Of many Acts, however, it can fairly be said as was said by Lord Herschell of the Buildings Societies Act, 1884, that no construction is free from difficulty, and no construction carries out a clear, defined and well-indicated policy on the part of the Legislature. If (as is often the case) the meaning of an enactment whether from the phraseology used or otherwise, is obscure, or if the enactment is, as Brett, L. J. said in In re R. L. Alston (1883) 8 P. D. 5 at p- 9 'unfortunately expressed in such language that it leaves it quite as much open, with regard to its form of expression, to the one interpretation as to the other' the question arises 'What is to be done? We must try and get at the meaning of what was intended by considering the consequences of either construction'. And if it appears that one of these constructions will do injustice, and the other will avoid that injustice, 'it is the bounden duty of the Court to adopt the second and not to adopt the first, of those constructions'. However 'difficult, not to say impossible' it may be to put a perfectly logical construction upon a....
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....nition as destroying the essential meaning of the word defined." 15. Relying on this principle of interpretation it is urged that the definition of "commercial esta-blishment" in Section 2(4) is intended to cover establishments carrying on any business, trade or profession which are commercial in their nature, i.e., those establishments alone in which the activity carried on is of a commercial nature. It cannot be equated with each and every place, whether commercial or not, in which a business, trade or profession is carried on. The petitioner has also relied on another decision of the Supreme Court in National Union of Commercial Employees v. M. R. Meher, Industrial Tribunal , In this case the question that fell for consideration was whether the definition of the word "industry" in the Industrial Disputes Act, which covers a very wide range of activities of an industrial nature, can be deemed to include the profession of a firm of solicitors. Their Lordships quoted their previous decision in State of Bombay v. Hospital Mazdoor Sabha, while interpreting the same word "industry" in the Industrial Disputes Act and in particular the following observation: -- "....that though Se....
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....itizen falls under the category of goonda or not; that is another infirmity in the Act." The petitioner therefore urged that if the word "establishment" is to be equated to every premises-where business, trade or profession is carried on without more then this mode of interpretation will have two weaknesses namely, that it will ignore the purposeful association of the word "commercial" cast in the definition, and it will leave the door wide open for every kind of premises where any trade, business or profession is carried on as being within, the meaning of the Act. 17. The respondents had relied on the entries in the second Schedule showing what the intention of the Legislature was and which establishments were intended to be included under the Act. The, State Government in exercise of its powers under Section 4 proviso added some entries to the second Schedule such as No. 18. Item 18 includes under "establishments" legal and income-tax practitioners, but excludes the operation of provisions of Sections 13 and 18(i) so far as they concern tho attendance of the legal practitioners and the attendance of their staff from the provisions of Section 18. By reference to this item ad....
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....s of the Supreme Court in Central Bank of India v. Their Workmen where it is observed: "if a rule goes beyond what the section contemplates, the rule must yield to the statute." Then the argument is that unless the office of a legal practitioner or an income-tax practitioner as such can be shown to be within the ambit of definition of "commercial establishment" in section 2(4) of the Act, any entry such as item 18 made by the State Government to Schedule II will not have the effect of including the office or establishment of an Advocate carrying on a profession therein to be governed by the provisions of tha Shops Act. 18. As to the effect of vagueness of a definition or provision of law, the petitioner also relied on a passage from Bindra's book on Interpretation of Statutes, 3rd edition, at page 340 to the following effect: "If the legislative intent can be spelt out fairly from the words of the statute, the Courts should give effect to that intention by looking at all the language used, the purposes to be accomplished, and other Acts, in pari materia, in spite of the fact that the statute is couched in inaccurate, inapt and awkward language. Whether a statute be a p....
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.... constitutional Government. Thereafter the observations of Isaacs J. in Federated State School Teachers' Association of Australia v. State of Victoria (1929) 41 CLR 5691 to the following effect are quoted : "Regal functions are inescapable and inalienable. Such are the legislative power, the admi-nistration of laws, the exercise of the judicial power." When the question was raised with reference to the Industrial Disputes Act before their Lordships in in which work done by a firm of solicitors was pressed as an "industry" their Lordships have indicated the nature of that work in relation to the Industrial Disputes Act. In this very case their Lordships have observed in-paragraph 11 as follows : "Does a solcitors firm satisfy that test? Superficially considered, the solicitors' firm is no doubt organised as an industrial concern would be organised. There are different categories of servants employed by a firm, each category being assigned separate duties and functions. But it must be remembered that the service rendered by a solicitor functioning either individually or working together with partners is service which is essentially individual; it depends upon the pro....
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....essions, because they are not carried on in any intelligible sense by the co-operation of capital and labour and do not come within the sphere of industrialism." 21. By extending the process of reasoning the petitioner contends that neither does the work in connection with the liberal profession of an Advocate partake of a commercial character. It is contended that the clerk an Advocate employs or the typist who may type the pleadings in the briefs does not participate as such in the work which the lawyer or the Advocate does in his profession. They are undoubtedly employed for assisting in the manual and clerical sphere but they do not partake in any sense in the professional work and in this aspect also the petitioner cannot be said to be an employer of his clerk within the meaning of the Act. 22. These contentions are met in the arguments of the respondents by urging that the interpretation sought to be put on. Section 2(4) i.e. definition clause, regarding "commercial establishment" is narrow and unwarranted. According to the respondents the word "establishment" is used also in the ordinary dictionary sense. According to the Webster's New Twentieth Century Dictionary ....
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....ct. It is not the intention of the Act that where the profession is carried on, not in a fixed place but anywhere without a fixed abode as it were for that activity, then it is not an activity which is intended to be covered, but the place in which the activity is carried on alone will be required to be controlled by the provisions of the Act. Even though, according to the respondents, the Advocate practises his profession at several places such as his chamber or in Courts or before tribunals, it is only the place over which he has a control and in which he carries on the business which is required to be registered as an, establishment under the Act. According to the respondents, whether any profit is made or not in carrying on such activity is irrelevant for the purpose of this Act according to the definition of section 2(4). It is pointed out that a registered society or a trust which carries on a business, Made or profession whether the object is gain or not wilt still come within the mischief of the Act if it is a commercial establishment in which business, trade or profession is carried on. There is no vagueness, It is contended, once definition in section 2(4) is so construed....
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....determining whether an establishment which is a shop will be governed by the provisions of the Shops Act, even if the Shop owner is the only person who carries on his business in the shop without assistance of any employees. The contention raised before the Supreme Court was that the provisions of such legislation, which is essentially a social benefit legislation, must postulate employment of somebody else with respect to whom the provisions regarding rest, health, sanitation etc. are properly made. If the shopkeeper is the only person doing business in the shop, thea the provisions of the Shops Act need not apply. This contention was not accepted and in repelling it their Lordships observed at page 1563 ol the report in Ramdhan-das v. State of Punjab as follows : "The ratio of the legislation is social interest ia the health of the worker who forms an essential part of the community and in whose welfare therefore, the community is vitally interested. It is ia the light of this purpose that the provisions of the Act have to be scrutinized ..... The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugne....
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.... find out that meaning and in our opinion the meaning is ascer-tainable if each of the words used in the definition of "commercial establishment" in Section 2(4) is properly understood and given effect to. The respondents have asked us to ignore the use of the word "commercial" in the definition on the ground that the very activities in respect of which, the establishment has to satisfy the test being commercial activities, the use of the words "commercial" establishment" is merely a surplusage. It is not possible for us to accept this interpretation. In our opinion, after defining what an "establishment" is under Section 2(8) of the Act as meaning a shop, a commercial establishment, a residential hotel, restaurant, eating house, theatre, other place of public amusement or entertainment, the Legislature has taken pains separately to define each one of these categories ot establishments. Therefore, in giving the meaning to the definition of the phrase "commercial establishment" in Sub-section (4) of Section. 2, emphasis is obviously laid on the character of an establishment as a "commercial establishment". Unless an establishment, even though carrying on a business, trade or profess....
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....ment" must have been used by the Legislature in the sense of place or premises. But the phraseology in defining "commercial establishment" is far from happy. We fail to see for instance, how a shop can itself be said to cany any business, trade or profession under the Shops Act if it is to be understood in the sense of premises. What obviously is meant is that a premises in which any business, trade or profession is carried on and if it is of a commercial nature or requiring commercial skill, then these premises-may be within the meaning of the Act. It is not necessary to notice what a business is or what a trade is, but it is necessary to notice what a 'profession' is. In the instant case we are concerned with the profession of an Advocate or a legal practitioner. There is no precise definition of what a profession is, but it is possible to gather what is meant by professional activities from other pronouncements. An everyday working definition of what a profession is has been given by Scrutton L. J. in Commissioner of Inland Revenue v. Masse, (1919) 1 K. B. 647 at p. 657. It is observed at-page 657 as follows.:- "I am very reluctant finally to propound a comprehensive ....
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....ity which is a core of a professional activity. If that is the test by which one has to determine whether an activity is a profession as distinguished from trade, or business, then it will be difficult to hold that the profession of law carried on by an Advocate or a legal practitioner in any manner or to any extent partakes of a commercial character or is a commercial activity. As we have held, unless the trade, business or profession carried on also partakes of a commercial nature or venture, the premises in which such activities are carried on will not attract the provisions of the Shops Act. It is therefore necessary to see how a person is qualified to practise his profession of law. It is not everyone who has a right or opportunity to practise law as a profession. It is not a natural or an absolute right in any sense. It is subject to the terms and conditions laid down in a statute which governs the practice and the profession of law. It may be the Legal Practitioners Act or the Bar Councils Act' and now, the Advocates Act, in this country. The right is subject to other laws for the time being in" force. As observed by this Court in National Union of Commercial Employees v....
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....f crime, to deal with the client's property, and a duty to the profession; recourse to law courts for realisation of fees is possible to a limited extent only; prohibi-tion from acquiring interest in subject-matter of litigation, inability to engage in any other gainful activity other than that of law, duty to show courtesy to all those with whom he deals in his professional capacity all point out a severe discipline which js enforced by the rules of the profession in carrying out the same. We may particularly note the prohibition from soliciting or canvassing for briefs. It is an ordinary incident of any commercial venture that there is no bar for competing with or entering into contract business. One of the essential features of the profession of a lawyer or an Advocate, which is healthy and necessary for preservation of all that is best in the administration of justice is an absolute prohibition from canvassing for briefs in any shape or form. Similarly, an Advocate or a legal practitioner practising before a Court is in duty bound to act as an officer of the Court. He plays a vital part in the edifice of law and has an important role in administration of justice. 31. The....
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....ration of justice but there is another weighty eeason why advertising should not only be discouraged but penalised. The reason is that advertising has tendency to have evil effect on the ignorant and tempts the lawyers to use improper means to make good their extravagant inducements. These considerations have contributed to the restrictions because they are a necessary part in day-to-day administration oGBP justice. 34. We have already noticed how the profession of a lawyer or an Advocate is an 'individual profession and cannot be an organised activity in the shape of commercial venture. Why this is so is no better described than in passages quoted in the book of Ethics of Bar and Bench by Hicks at pages 229 and 230, which are as follows: "The practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study, both general and professional, and a thorough examination by a State Board appointed for that purpose. The right to practise law is in the nature of a franchise from the State conferred only for merit....." The relation of attorney a....
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....of a trader and his customer. The client is not his customer; there is a certain fiduciary relation between them, when the counsel accepts a brief. The obligations do not end with the disposal of the case; they continue so far as the lawyer is concerned. He has obligations not only to the client but also to the Court, and generally to the administration of justice, in which he performs a healthy and necessary function. We therefore do not think that the profession of a lawyer is possible to he carried on as a commercial venture in any sense of the term. There is also considerable force in the argument on behalf of the petitioner that the part a lawyer piays in the administration of justice partakes to some extent, of participation in discharging sovereign or regal functions of the State. We have already quoted above the pronouncoments of their Lordships of the Supreme Court that administration of justice and exercise of judicial power are a part and parcel of sovereign powers or regal powers of the State. In this task the lawyer plays a vital and important role. In this connection we may usefully quote the view of one of the eminent Chief Justices, at the time of declaring open the....
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....sons, children and women, or for hours of work, periods of rest , or fixing maximum number of hours of work or other useful provisions made for health and preservation of energies as well as for minimum wages, leave with wages and a speedy and summary method of realisation of these wages. We fail to see, how any employee in the office of an Advocate, such as a typist who types an opinion, or a clerk who keeps his accounts, or a menial servant, can be said to be in any manner participating in the professional work carried on by a lawyer or an Advocate. In that sense there is no nexus established between the activity of a lawyer carried on in his profession and the work that is entrusted to the servants as employees. Unless that nexus is present, it cannot be said that the employee is an employee in a professional venture. In view of the fact that in the profession of an Advocate it is the personal individual skill and attainment of the individual which is called in play in carrying on the profession, there is no scope for any other employee participating in that kind of professional activity. From this point of view also, therefore, we hold that a lawyer who carries on his professio....