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TMI Blog1962 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks 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 Act, 1948, hereafter referred to as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 500/-. Provisions regarding health and safety of the emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstruction. The 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The definition of 'Shop' is given in Section 2(27) o£ 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: - " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the sense of premises in which business, trade 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a risk by way of profit or loss from such a transaction. It is therefore urged that if the activity has to be a commercial activity in which a profession is carried on, then 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was invited to the following passage in Craie's Statute Law at pages 89 and 90 : "If the language of an Act of Parliament is clear and explicit, it must, as already stated, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng words to show that such a meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first part of the definition. Recourse to the dictionary meaning of the word would hardly be of any assistance in this matter ..... That is why we think the definition of the word 'goonda' should have given necessary assistance to the District Magistrate in deciding whether a particular citizen 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment". To the same effect are the observations regarding a statutory rule in the decision of their Lordships 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now well settled in view of the pronouncements of their Lordships in Nagpur Corporation v. Its Employees their Lordships referred to the observations of Lord Watson in Comber v. Berks Justices, (1883) 9 AC 61 at p. 74 where regal functions are described as administration of justice, maintenance of order and repression of crime among the primary and inalienable functions of 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph r3 their Lordships referred to the observations of Isaacs and Rich JJ. in the Federated Municipal and Shire Councils Employees Union etc. v. Lord Mayor, Alderman, Councillors and Citizens of Melbourne, (1918-19) 26 CLR 508 at p. 554 and quoted a passage in which the following is to be found: "It (the concept of an industrial dispute) ex-cludes, for instance, the legal and the medical professions, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablishment" in section 2(8) only to indicate that every establishment which carried on any one of these activities will be taken to ba a commercial establishment. According to the respondents the phrase "establishment which carries on business, trade or profession" must be interpreted as meaning a place or a premises in which any business, trade or profession is carried on. It is only a place where such profession is carried on as is intended to be commercial and liable to be registered under the Act. 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 respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactment. Words can be given a wide or normal meaning consistent with the context in which they are used. Reiving on this decision of the Punjab High Court it is urged that if the definition in the Bombay Shops Act, principally in Section 2(4) defining "commercial establishment" is understood in the terms of premises where business, trade or profession is carried on, then any person who has control over such premises would be required to be registered under the Shops Act. According to the respondents, whether anyone is or is not employed in a shop is immaterial. In 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht, we are not in a position to declare that the provisions of the Act so far as commercial establishment is concerned are void because of certain vagueness in the description or definition. One would strive hard to reject such a conclusion if possible, if rational meaning can be given to the words used with reference to the context' in which they are used. We therefore do not think that by mere use of the word ''establishment" again in defining what is a 'commercial establishment', the Legislature has made it impossible to find what tho meaning is. We have endeavoured to 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Commerce is that activity where a capital is laid out on any work and a risk run of profit or loss; it is a commercial venture: Vide M'kay v. Rutherford, (1848) 6 Moor PC 413 at p. 425. 26. Thus, the very concept of any activity which can justly be called a commercial activity, must imply some investment of capital and the activity, must run the risk of profit or loss. Understood in this sense, therefore, we are inclined to hold that it is not every establishment in the sense of premises or buildings where business, trade or profession ia carried on that is intended to be governed by the Act, but only those premises though carrying on one or other of these kinds of activities which are of a commercial nature. We agree with the respondents that the word "establishment" 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, trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Swainston Ltd. v. Inland Revenue Commissioner, 1919-2 K. B. 731 where Rowlatt J. observed as follows:- "....but in my opinion the company is not carrying on the profession of naval architects withim the meaning of the Section, because for this 'purpose it is of the essence of a profession that the profits should he dependent mainly upon the personal qualifications of the person by whom it is carried on, and that can only be an individual." 29. Thus it is clear that an activity to be a profession must be one carried on by an individual by his personal skill, intelligence and dependant on individual characteristics, as observed by their Lordships of the Supreme Court in which, was a case regarding work of solicitors and also attorneys. It is the personal skill, intelligence, study, integrity 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. There is a statutory duty of preserving the trust reposed in him during the course of his employment and after termination of such empJoyment. The code of professional ethics enjoins strict observance of fairplay and considerateness in discharge of his duties by a lawyer in his professional engagement. Rules of conduct are framed by the Bar Councils in different countries. In this country now the All India Bar Council has recently framed rules of etiquette and a copy of these rules can be found reprinted jn the Journal portion of 1960 Nagpur Law Journal. They have been styled as a Code of Professional Ethics. There is a duty to clients, and where there is a conflict of interests, the duty of an Advocate is clearly laid down. The counsel has a duty to appear as a witness or in defence of persons who are accused of 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st advertisement and solicitation is a healthy concomitant in this profession is also put as follows by a Committee of the New York Bar Council, to be found in the same book at page 211 : "It is a profession, not only because of the preparation and qualifications which are required in fact and by law for its exercise, but also for the primary reason that its functions relate to the administration of justice, and to the performance of an office erected and permitted to exist for ths public good, and not primarily for the private advantage of the officer. Such private advantage, therefore, can never properly be permitted to defeat the object for which the attorney's office exists as a party of the larger plan of public justice." 33. As lawyers are officers of the Court, adver- tising would not only lower the whole tone of administration 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the State." 35. In our opinion, enough has been stated above to indicate how the profession of an Advocate is of a class apart, not only from other profe-ssions but also from any other commercial activity in which a person may be employed. It is possible to conceive of any commercial activities where services of a professional man like engineer, or architect or draftsman may be utilised, but we cannot conceive of commercial venture where services of a lawyer, not for his own benefit but as a means of providing advice and legal aid to others on behalf of a corporation or an organised body may be made available as part of their comm-ercial activity. The relations between a counsel and his client are not analogous to those 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 general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these places where the activity can be said to be of a commercial nature. It is not a commercial activity and the very nature of the work is such that it is incapable of being of a commercial nature. 36. There are certain other obvious difficulties in accepting the contentions on behalf of the respondents. The provisions made regarding sanitation, hours of attendance; prompt payment of wages are all provisions when the employee concerned is in some way participant in the work that is carried on in the premises. It is possible to conceive of an employee in a commercial business or a trade, or any other business where he can be said to be participating in the work of his employer and the nature of his employment is commercial. If that is the nature of his employment, then it is only proper that adequate provision should be made against exploitation of young persons, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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