Andhra HC (Pre-Telangana)
K. Gopalakrishnan vs Asst. Inspector Of Labour, (Asst. ... on 11 September, 2000
Equivalent citations: 2000(6)ALD214, 2000(6)ALT119
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
ORDER
1. This writ petition is filed to issue a writ of certiorari calling for the records pertaining to the impugned order in Rc.No.27, 28 and 32 of 1991 dated 25-5-1991 of the Assistant Inspector of Labour, Rayadurg, Anantapur District, and to quash the same as illegal, arbitrary and unconstitutional and to declare that the provisions of A.P. Shops and Establishment Act and the Rules made thereunder are not applicable to the office of Chartered Accountant.
2. It is submitted by the petitioner that the petitioner is a Chartered Accountant practicing at Rayadurg and is a member of the Institute of Chartered Accountants of India and completed the course of Chartered Accountant in the year 1984. The respondent-Asst. Labour Officer, Rayadurg, issued an inspection order and notice dated 7-3-1991 stating that on recent inspection on 20-2-1991 he found certain provisions of the A.P. Shops and Establishment Act and Rules made there under are not being carried out and asked the petitioner to show-cause within seven days and to why penal action under the said Act should not be taken against him. It is further submitted that after the receipt of the notice, the petitioner immediately gave reply on 16-4-1991 stating that the office of the Chartered Accountants and Auditors is not an establishment falling within the definition of the said Act. It is further submitted that the profession of Chartered Accountant and maintenance of an office for his practice would not be covered by shops or establishment as defined under the said Act. After considering the reply given by the petitioner, the respondent passed the impugned order dated 25-5-1991 stating that the petitioner's office comes under the said Act. Aggrieved by the order passed by the respondent, the petitioner filed the present writ petition.
3. The learned Counsel for the petitioner has submitted that the office maintained by the Chartered Accountant for practice is not a shop within the meaning of Section 2(21) of the A.P. Shops and Establishment Act, 1988 and maintenance of the office of Chartered Accountant for practice is a profession just like an advocate profession. Therefore, the petitioner need not register his office under the said Act. Therefore, the impugned order passed by the respondent is illegal and liable to be set aside. The impugned notice issued by the respondent is to the following effect:
"1. Section 3(1)A read with Rule 3: Failed to send a statement in Form "A" for the Calendar Year 1991 together with a challan after remitting the fee as prescribed in Schedule I and obtain the Registration certificate from this office.
2. Section 60(2) read with Rule 28(1): Failed to produce or cause to produce Register of employment in Form No."N" on demand for inspection at the time of inspection.
3. Section 60(2) read with Rule 28(2): Failed to produce or cause to be produced the register of Wages in Form No."O" on demand at the time of inspection.
4. Section 60(2) read with Rule 28(6): Failed to produce or cause to be produced the register of leave in Form "Q" on demand at the time of inspection.
5. Section 60(4) read with Rule 32: Failed to issue letter of appointment in Form "S" to each of the employee working in your establishment and failed to obtain acknowledgment in token of having issued the said letter to them.
6. Rule 28(10)(e): Failed to produce or cause to be produced the Bound Visit book of size "7 x "6 containing at least 100 pages when demanded for it to record remarks of the inspection in it at the time of inspection."
To appreciate the contentions raised by the learned Counsel for the petitioner, let us see the definition of Section 2(21) of the said Act, which reads as follows:
"(21) 'Shop' means any premises where any trade or business is carried on or where services are rendered to customers and includes a shop run by a co-operative society, an office, a store room, godown, warehouse or work place whether in the same premises or otherwise, used in connection with such trade or business and such other establishments as the Government may, by notification declare to be a shop for the purpose of this Act, but does not include a commercial establishment."
4. Therefore, as seen from the definition of a "shop", the office of Chartered Accountant is not carrying any business and it does not come within the meaning of Section 2(21) of the said Act. Of course it is rendering some service to the customers.
5. Initially, Chartered Accountant profession was regulated by the Auditors Certificates Rules framed in the year 1932 in exercise of the powers conferred on the Government of India by Section 144 of the Indian Companies Act, 1913. The Indian Accountancy Board was advising the Government in all matters relating to the profession and was assisting it in maintaining the standards of the professional qualifications and conduct required of the members of the profession. The majority of members of the Indian Accountancy Board used to be elected by Registered Accountants, and members of the profession from all parts of the country. These arrangement were intended to be only transitional to lead up to a system in which such accountants would in autonomous association of themselves, largely assume the responsibilities involved in the discharge of their public duties by securing maintenance of the requisite standard of professional qualifications, discipline and conduct, the control of the Central Government being confined to a very few specified matters. The Act of 1949 is an Act framed for the regulation of the profession of Chartered Accountants the regulation is exercised through the Institute of Chartered Accountants. It is a self contained Code of Conduct of the Chartered Accountants. The Institute of Chartered Accountants of India is a Body Corporate and all the Chartered Accountants are its members. There is a Council of the Institute constituted under Section 9. Under Section 15, the Council is entrusted with the management of the affairs and for discharging the functions assigned to it by the Act of 1949. The duty of carrying out the provisions of the Act of 1949 is vested in it. The Council is invested, among others, with the power to take disciplinary action against the Chartered Accountants. It is responsible to guide its members in the discharge of their professional duties and to maintain a high standard. Under Section 2(b) of the Act of 1949, "Chartered Accountant" means "a person who is a member of the Institute". Every member of the Institute is entitled to designate himself as a Chartered Accountant. There are two classes of members, those who are in practice and those are otherwise occupied. Regulation 167 of the Regulations defines the other services which if rendered by a Chartered Accountant for which he would be deemed to be in practice. A Chartered Accountant in practice under the said Regulation may accept part-time employments, and notwithstanding anything contained in Regulation 166, subject to the control of the Council, he may act as liquidator, trustee, executor, administrator, arbitrator, receiver, adviser or representative for costing, financial or taxation matters.
6. Therefore, from the reading of the above provisions of the Act 1949 and Regulations, would make it amply clear that a Chartered Accountant in practice has manifold functions and duties to perform and discharge with the professional conduct to be observed by him and that apart from possessing required qualifications, he requires special skill, learning and experience in the discharge of his duties. The profession is a vocation or occupation requiring special usually advanced education and skill. The work and skill involved in a profession is predominantly mental or intellectual rather than physical or manual.
7. Therefore, the office of the Chartered Accountant or of a Firm of Chartered Accountants cannot be considered as premises where any trade or business is carried out. Therefore, it can be viewed that the office of the Chartered Accountant or of a Firm of Chartered Accountants does not come within the definition and the term in Section 2(21) of the said Act. It is difficult to hold that the office of Chartered Accountant or of a Firm of Chartered Accountants would be a commercial place.
8. For the reasons mentioned above, the Asst. Labour Officer could not have issued the impugned notice to the petitioner for not complying with certain provisions of the said Act. The respondent under misconception of law thinking that the office of Chartered Accountant comes within the purview of Section 2(21) of the said Act and issued the above notice. As seen from the discussion made above and also the ruling of the Karnataka High Court reported in Phillipos and Co. v. State, 1990 (1) LLJ 227, in which the learned single Judge extensively dealt with similar provisions contained in A.P. Act and held that the office of the Chartered Accountant does not come within the meaning of 'shop'. It is a profession equal to the profession of a lawyer.
9. Therefore, taking into consideration the ruling of the above said decision, I am holding that the office of the petitioner does not come within the meaning of Section 2(21) of the said Act. Therefore, the impugned notice issued by the respondent is illegal, contrary to the provisions of the said Act and without jurisdiction. Accordingly, the writ petition is allowed. No order as to costs.