V. Sasidharan Vs. Peter &
Karunakar & Ors [1984] INSC 155 (23 August 1984)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) TULZAPURKAR, V.D.
CITATION: 1984 AIR 1700 1985 SCR (1) 601 1984
SCC (4) 230 1984 SCALE (2)201
ACT:
Shop & Establishments Act 1960 (Kerela
Act). Sec. 2(4)- Firm of Lawyers Whether a commercial establishment.
HEADNOTE:
The appellant preferred an appeal to the
Appellate Authority under the Kerela Shops and Commercial Establishments Act,
1960 (For short. the Act) against his dismissal from service by respondent No.
1, a firm of Lawyers. Respondent No. 1 raised a preliminary objection that the
appeal was not maintainable since Respondent No. I firm was not a commercial
establishment under the Act. The Appellate Authority upheld the preliminary
objection and dismissed the appeal. His writ Petition and Letters Patent Appeal
in the High Court against the judgment of the Appellate Authority were also
dismissed. Hence this appeal by special leave.
Dismissing the appeal, ^
HELD: (I) The question whether respondent No.
I-firm is a commercial establishment must naturally depend upon the definition
of that expression and the definition of cognate expressions which are
contained in the Act. The definition of "commercial establishment" contained
in sec.2(4) of the Act may be simplified by restating it in separate clauses as
follows: (I) Commercial, Establishment means five different kinds of
establishments; commercial, industrial, trading, banking or insurance; (2)
Commercial Establishment means an establishment or administrative service in
which the persons employed are mainly engaged in office work; (3) Commercial
Establishment means a hotel, restaurant, boarding or eating house, a cafe or
any other refreshment house; (4) Commercial Establishment means a theater or
any other place of public amusement or entertainment; and (5) Commercial
Establishment includes such other establishment as the Government may, by
notification in the Gazette. declare to be a commercial establishment for the
purposes of the Act. Commercial Establishment does not include a factory to
which any of the provisions of the Factories Act, 1948 apply Section 2(8)
defines 'establishment' to mean a shop or a commercial establishment. The
definition of shop contained in sec.
2(15) shows that in order that an
establishment can be regarded as a shop it is necessary that some trade or
business must be carried on there or some service must be rendered to
'customers'. The expression 'shop also includes offices, warehouses. store
rooms or godowns which are used in connection with the trade or business. [30H;
603H, 605A, D-G].
602 (2) A lawyer's office or the office of a
firm of lawyers cannot obviously fall under clauses (3) and (4) of section
2(4). Nor has the Government issued any notification as contemplated by section
2(4). The question thus narrows itself into whether a lawyer's office falls
under either of the first two clauses. Since by the definition contained in the
first clause of section 2(4), a 'commercial establishment means an
establishment, a place of work cannot be regarded as a commercial establishment
unless the activity is conducted in a 'shop' or in a commercial establishment,
which is really tautological. Whatever may be the popular conception regarding
the role of today's lawyers and the alleged narrowing of the gap between a
profession on one hand and a trade or business on the other, it is trite that,
traditionally, lawyers do not carry on a trade or business nor do they render
services to customers'. The context as well as the phraseology of the
definition in section 2(15) is inapposite in the case of a lawyer's office or
the office of a firm of lawyers. Therefore, the office of a lawyer or of a firm
of lawyers is not a shop within the meaning of sec. 2(15) of the Act. [605C,
F-G] (3) The argument, that a lawyer's office is a commercial establishment
because, persons who are employed in that office are mainly engaged in office
work, cannot be sustained. This argument overlooks that (i) under the second
clause of the definition in section 2(4), commercial establishment' means
"an establishment or administrative service in which the persons employed
are mainly engaged in office work" and thus the same question arises again
as to whether a lawyer's office is an " establishment' within the meaning
of the Act; and (ii) that a lawyer's office is not an administrative service'
and it will be doing violence to the language of the second clause of sec. 2(4)
to hold that a lawyer's office is an 'administrative service'. The proposition
is well established that words which occur in the same context must take their
colour from each other. It is unrealistic to dissect the definition clause in
section 2(4) and to catch a word here or there in order to bring a lawyer's
office within the four corners of the definition of commercial establishment'.
The various clauses of that definition would show that establishments, far
apart from professional offices were within the contemplation of the
legislature.[606BtoD] (4) Chapters 1-A, II. III, IV, V and VI as also sections
6,8, 10 and other cognate provisions of the Act also strengthen the conclusion
that a lawyer's office cannot possibly be comprehended within the meaning of the
expression 'Commercial establishment' as defined in section 2(4) of the Act.
[607A-B] Bangalore Water Supply and Sewage Board v. A. Rajappa.[1978] 3 SCR 297
and Indian Chambers of Commerce and Industry [1974] 2 LLJ. 271. distinguished.
CIVIL APPELLATE JURISDICTION: CIVIL APPEAL
No. 2029 of 1980 Appeal by Special leave from the judgment and Order dated 603
the 26th July, 1970 of the Kerala High Court in W.A. No. 11 of 1978.
K.R.R. Pillai for the Appellant.
P. Govindan Nair E.M.S. Anm, M.K. Dua and
Miss Baby Krishnan for Respondents No. 1, 3 & 4.
For Applicant/Interveners:
K.M.K.Nair for Bar Council, Kerala.
R.C. Misra & Vimal Dave for Supreme Court
Bar Clerk's Association.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. The question which arises for consideration in this appeal is
whether a firm of lawyers is a 'commercial establishment' within the meaning of
the Kerala Shops and Commercial Establishments Act, 1960 (referred to herein as
'the Act').
The appellant, V. Sasidharan, was working as
a clerk in a firm of lawyers which is respondent 1 to this appeal.
Respondents 2, 3 and 4 are partners of the
firm. The services of the appellant were terminated by the firm on February 3,
1977, whereupon he preferred an appeal to the Appellate Authority under the
Act. A preliminary objection was raised in that appeal by the firm on the
ground that it was not a commercial establishment. By a judgment dated August
11, 1977, the Appellate Authority upheld the preliminary objection and
dismissed the appeal.
Being aggrieved by that judgment, the
appellant filed a writ petition (O.P.No. 3380 of 1977-B) in the High Court of
Kerala. A learned single Judge of the High Court dismissed that writ petition,
against which the appellant filed Letters Patent appeal (W.A. No. 11 of 1978).
That appeal was dismissed on July 26, 1978. This appeal by special leave is
filed against the judgment of the Division Bench of the Kerala High Court.
The decision of the question whether
respondent 1 firm is a commercial establishment, must naturally depend upon the
definition of that expression and the definitions of cognate expressions 604
which are contained in the Act.
Section 2 (4) of the Act defines
"commercial establishment" as follows:
"Commercial establishment', means a
commercial or industrial or trading or banking or insurance establishment, an
establishment or administrative service in which the persons employed are
mainly engaged in office work, hotel, restaurant, or boarding or eating house,
cafe or any other refreshment house, a theatre or any other place of public
amusement or entertainment and includes such other establishment as the
Government may, by notification in the Gazette declare to be a commercial
establishment for the purposes of this Act, but does not include a factory to
which all or any of the provisions of the Factories Act, 1948 (Central Act 63
of 1948) apply." Section 2(8) defines "establishment" to mean a
shop or a commercial establishment. Section 2 (15) defines "shop" as
follows:
"Shop" means any premises where any
trade or business is carried on or where services are rendered to customers,
and includes offices, store rooms, godowns or warehouses, whether in the same
premises or otherwise, used in connection with such trade or business but does
not include a commercial establishment or a shop attached to a factory where
the persons employed in the shop are allowed the benefits provided for workers
under the Factories Act, 1948 (Central Act 63 of 1948)" It is on the basis
of these definitions that we shall have to decide whether the office of a
lawyer or of a firm of lawyers is a commercial establishment within the meaning
of the Act.
The definition contained in section 2 (4) may
be simplified by restating it in separate clauses as follows:
(1) Commercial Establishment means five
different kinds of establishments: commercial, industrial, trading, banking or
insurance; (2) Commercial Establishment means an establishment or
administrative service in which the persons employed are mainly engaged in office
work; (3) Commercial Establishment means a hotel, restaurant, boarding or
eating house, a cafe or any other refreshment house;
605 (4) Commercial Establishment means a
theatre or any other place of public amusement or entertainment; and (5)
Commercial Establishment includes such other establishment as the Government
may, by notification in the Gazette, declare to be a commercial establishment
for the purposes of the Act. Commercial Establishment does not include a
factory to which any of the provisions of the Factories Act, 1948 apply.
A lawyer's office or the office of a firm of
lawyers cannot obviously fall under clauses (3) and (4) above. Nor has the
Government issued any notification as contemplated by section 2 (4). The
question thus narrows itself into whether a lawyer's office falls under either
of the first two clauses.
The expression 'establishment' is defined by
section 2(8) mean a shop or a commercial establishment. Since by the definition
contained in the first clause of Section 2(4). a commercial establishment means
an establishment, a place of work cannot be regarded as a commercial
establishment unless the activity is conducted in a 'shop' or in a commercial
establishment, which is really tautological. The definition of 'shop' which is
contained in section 2(15) shows that in order that an establishment can be
regarded as a shop, it is necessary that some 'trade' or 'business' must be
carried on there or some service must be rendered to 'customers. The expression
'shop' also includes offices, warehouses store rooms or godowns which are used
in connection with the trade or business. It does not require any strong
argument to justify the conclusion that the office of a lawyer or of a firm of
lawyers is not a 'shop' within the meaning of section 2(15). Whatever may the
popular conception or misconception regarding the role of to-day's lawyers and
the alleged narrowing of the gap between a profession on one hand and a trade or
business on the other, it is trite that, traditionally, lawyers do not carry on
a trade or business nor do they render services to 'customers'. The context as
well the phraseology of the definition in section 2(15) is inapposite in the
case of lawyer's office or the office of a firm of lawyers.
Learned counsel for the appellant argues that
a lawyer's office is a commercial establishment because, persons who are
employed in that office are mainly engaged in office work. This 606 argument
overlooks that. under the second clause of the definition in section 2(4),
'commercial establishment' means "an establishment or administrative
service in which the persons employed are mainly engaged in office work".
Partly, we go back to the same question as to whether a lawyer's office is an
'establishment' within the meaning of the Act.
The other aspect which this argument fails to
take note of is that a lawyer's office is not an 'administrative service'. It
seems to us doing violence to the language of the second clause of section 2(4)
to hold that a lawyer's office is an 'administrative service'. This argument
has therefore to be rejected.
The proposition is well-established that
words which occur in the same context must take their colour from each other.
It is unrealistic to dissect the definition clause in section 2(4) and to catch
a word here or there in order to bring a lawyer's office within the four
corners of the definition of 'commercial establishment'. The various clauses of
that definition would show that establishment, far apart from professional
offices, were within the contemplation of the legislature.
For these reasons, we are of the opinion that
the office of a lawyer or of a firm of lawyer is not a 'commercial
establishment' within the meaning of the Act.
This conclusion is strengthened by the other
provisions of the Act. Chapter I-A of the Act provides for registration of
establishments, Chapter II for hours of work, Chapter III for holidays and
leave, Chapter IV for wages, Chapter V for employment of children and women and
Chapter VI for health and safety measures. Section 6 of the Act provides that
no employee in any establishment shall be required or allowed to work for more
than eight hours on any day or for more than 48 hours in any week Section 8
requires that, the period or work of an employee in an establishment for each
day shall be so fixed that no period shall exceed four hours and that no such
person shall work for more than four hours before he has had an interval for
rest of at least one hour.
Under section 10, no establishment shall, on
any day, be opened earlier than and closed later than such hours as may be
fixed by the Government, provided that any customer who is being served or is
waiting to be served in any establishment at the hour fixed for its closing may
be served during a quarter of an hour 607 immediately following such hour.
These and other cognate provisions of the Act show that a lawyer's office
cannot possibly be comprehended within the meaning of the expression 'commercial
establishment' as defined in section 2(4) of the Act. We are quite solicitous
about the welfare of those who work in the lawyers' offices. But, there are
many other ways in which their welfare can be ensured. If the current trends
are any indication and if old memories fail not, the earnings of lawyers'
clerks cannot, in reality, bear reasonable comparison with the earnings of
employees of commercial establishments, properly so called.
They, undoubtedly, work hard but they do not
go without their reward. They come early in the morning and go late at night,
but that is implicit in the very nature of the duties which they are required
to perform and the time they spend is not a profitless pastime.
An argument was strongly pressed upon us on
the basis of the decision of this Court in Bangalore Water supply and Sewage
Board v. A. Rajappa.(1) The High Court has rightly observed that the question
which arose in that case was entirely different, namely, the sweep of the
meaning of the word 'industry'. The ratio of that decision is that term
'industry' covers any activity which is systematically or habitually undertaken
for the production or distribution of goods or for rendering material services
to the community at large with the help of employees. The question which arises
in this appeal is basically different, namely, whether a lawyer's office or the
office of a firm of lawyers is commercial establishment. Considerations which
were germane to the determination of the question in the Bangalore Water Supply
case are foreign to the decision of the question before us.
In Indian Chambers of Commerce and
Industry(2) case, the question was whether the Federation of Indian Chambers of
Commerce and Industry is a commercial establishment within the meaning of the
Delhi shops and Commercial Establishment Act, 1954. This Court pointed out that
the definition of 'commercial establishment' in that Act is so wide that the
activities of a registered society or a charitable trust would also fall within
the purview of that definition.
608 The learned single Judge and the Division
Bench of the Kerala High Court have dealt with the questions arising in this
appeal with care. We agree with their reasoning and hold that the office of a
lawyer or of a firm of lawyers is not a 'commercial establishment' within the
meaning of section 2(4) of the Act.
The Bar Council of Kerala and Clerks
Association of the Supreme Court Bar had intervened in this matter. We must
express our thankfulness to them for the assistance rendered by them.
In the result, the appeal is dismissed but
there will be no order as to costs.
M.L.A. Appeal dismissed.
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