Bombay High Court
Sakharam Narayan Kherdekar vs City Of Nagpur Corporation on 25 September, 1962
JUDGMENT Abhyankar, J.
1. This petition raises an interesting and an important point of interpretation under the Bombay Shops and Establishments Act, 1948. This Act has been made applicable to Vidarbha region by the Extension and Amendment Act, 1960, applying the provisions of this Act all over the State of Maharashtra.
2. The petitioners, S. K. Kherdekar, is an advocate of this Court, and also the elected Secretary of the High Court Bar Association at Nagpur. The association is a body registered under the Societies Registration Act. The petitioner has been practising for the last 27 years in the High Court and also enrolled under the Legal Practitioners Act and now under the new Advocates Act, 1961.
3. The petitioner has stated that he is practising at his own residence and does not maintain an establishment. He carries on profession by receiving briefs 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 organizing any commercial establishment.
4. The petitioner in his capacity as Secretary of the High Court Bar Association, received from the Market Superintendent of respondent 1, Corporation of the City of Nagpur, a letter dated 23 January, 1962. In this letter the Market Superintendent intimated to the petitioner that the Bombay Shops and Establishments Act, 1948, has been made applicable to Vidarbha region with effect from 1 October, 1961. 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 p. 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 Shops Act. The form prescribed by rule 5 is to be used by all employers as defined in the Act. The employers are required under S. 7 of the Shops Act to send to the Inspector of the local area concerned a statement in this form together with prescribed fees. The information that is to be given in the form is with respect to the name of the employer and the manager, if any, the postal address of the establishment, the name of the establishment, if any, the category of the establishment, namely, whether it is a shop or commercial establishment or a residential hotel, restaurant, eating-house, theatre or any other place of public amusement or entertainment, and other particulars that may be prescribed. On receipt of the form the Inspector has to be satisfied about the correctness of the statement, and then the establishment is to be registered in the register of establishments as prescribed by the rules. On such registration a registration certificate is granted to the employer which is valid till the end of the year. One of the consequences of non-registration and not sending the form as required by S. 7 is provided in S. 52 of the Shops Act. Under that clause, if an employer fails to send to the Inspector a statement during the period specified in S. 7, then the employer and the manager are liable to be prosecuted and on conviction each will be punishable with a fine which shall not be less than Rs. 25 and which may extend to Rs. 250 and if the contravention under S. 7 is continued after the expiry of the tenth day after conviction, the employer shall be liable on further conviction to be punished with fine which may extent to Rs. 10 for each day on which the contravention is so containued.
5. The petitioner, thus being exposed to the risk of a prosecution if he were not to register himself as an employer of an establishment under S. 52 of the Act, has come up to this Court with a prayer that the respondent may be prohibited from taking any action in pursuance of any of the provisions of the Shops Act. Respondent 1 is the City of Nagpur Corporation, who have filed a return in this case. Respondent 2 is the Market Superintendent who issued the letter to the petitioner. Respondent 3 is the State Government which did not file a return in time, but we have heard Shri S. M. Hajarnavis, the learned Assistant Government Pleader, on behalf of the State.
6. Before noticing the rival contentions of 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 conditions 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 establishments. Section 2 gives statutory definitions of several expressions used in the Act. In particular, the definitions of "commercial establishments", "employer" "shop," will need a careful examination. As already stated S. 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 time of registration has also to be intimated by the employer to the Inspector in a prescribed form. If an establishment comes to a close for good, then the closure of such establishment is required to be notified to the Inspector.
7. Chapter III provides for the hours of opening and closing of shops and establishments, Sections 10 and 11 prescribe the hours of opening and closure of shops and S. 13 provides for the hours of work, in a commercial establishment. Section 14 prescribes the maximum number of hours during which an employee can be required or allowed to work in a shop or commercial establishment. Corresponding to this restriction on an employer regarding the hours during which an employee may be employed to work, there is an obligation on the employee not to work beyond the prescribed hours either in that establishment or in any other establishment. Interval for rest between the two periods of work is provided in S. 15 while S. 16 makes provision for the spreadover of the hours of employment which shall not exceed 11 in any day. There is a different period of spreadover in respect of employees in commercial establishment under S. 17. Section 18 is one of the important provisions of the Act which requires that every shop and commercial establishment will remain closed on one day in the week. The employer is required to determine and maintain a list of such close days at the beginning of each year and to notify such list to the Inspector and the list is required to be displayed in a conspicuous place at the establishment also. There may be different days of weekly rest for different establishments or different classes of establishments and this may again differ from area to area and from locality to locality. They may also include different periods of the year. Notice to that effect has to be given by the employer to the Inspector. Chapter IV makes similar provisions regarding opening and closing hours in residential hotels, restaurants and eating-houses. Similarly, Chap. V makes provisions on the same topic with regard to theatres and other places of public amusement or entertainments. Then we come to Chap. VI, which is an important restriction on the employment of what are called children, young persons and women. A child under the Act is a person below 12 years, while a young man is a person below 17 years according to the definition in the Act. Section 23 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 S. 32 no young person or woman can be required or allowed to work in the establishment before 6 a.m. 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 S. 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 VIII 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 of Wages Act for realization of wages and under S. 38A 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 employees in every establishment are to be found in Chap. VIII. Certain precautions against fire, sufficiency of lighting and ventilation, provision for first-aid, are all provided in Ss. 39 and 42A in this chapter.
8. One of the important features of this legislation is that enforcement in respect of the several provisions of the Act is entrusted to local authority within the areas of its jurisdiction. The local authority is required to appoint Inspectors and to enforce the provisions according to the rules made by the Government and for which the local authority itself may make bylaws consistent with the provisions of the Act. In spite of the entrustment of this primary duty of enforcement to local authorities the State Government has retained the power to enforce the provisions of the Act in case there is any remissness or failure to perform its duty by other authorities. The Act also provides for the manner in which Inspectors are to be appointed and the powers and the duties of the Inspectors. Every Inspector appointed under the Act is deemed to be a public servant within the meaning of S. 22 of the Indian Penal Code. An employer is in duty bound under S. 21 on demand to produce all records, etc., required to be kept by him under the provisions of this Act. Chapter X prescribes the offences and penalties therefore created under the Act. We have already noticed S. 52 which provides for penal consequences for acting in contravention of the several provisions of the Act, viz., Ss. 7, 10, 11, 13, 26, 27, 39, 40, 41 or 42, or again if there is contravention of the provisions of Ss. 14, 15, 16, 17, 21, etc., regarding the allowing of work in contravention of the provisions of these sections. Under the proviso to S. 52 it is provided, as already noticed, that the failure to take action under S. 7 involves a further fine after first conviction to the extent of Rs. 10 per day for each day on which the contravention is continued. There are certain minimum punishments prescribed for contravening certain provisions such as S. 18, 22, 21 or 65. There is also a provision for enhancement of the punishment under S. 56 for repetition of the offence in contravention of Ss. 10, 11 etc. Nobody can obstruct an Inspector from doing his duty except at his peril of prosecution and conviction for such obstruction. 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 Chap. XI, all intended for furtherance of the objective with which the Act has been made.
9. We may only notice now three provisions, namely, Ss. 4, 5 and 6 of the Act, which have a bearing. Under S. 4 certain provisions of the Act have been excluded from application in respect of establishments mentioned in Sch. II. Now, this Sch. II originally contained only six entries, and all the provisions of the Act have been excluded from application to them when the Act was put of the statute book. But the State Government has been given power under S. 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 Sch. 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 under S. 5 of the Act to the State Government by notification in the official gazette to declare any establishment, or class of establishments to which or any person or class of persons whom the Act or any of the provisions thereof does not apply, to be an establishment or class of establishments or a person or class of persons to which or to whom the Act or any of its provisions may apply either with modifications or adaptations as may be necessary in the opinion of the Government. On such a declaration being made such establishment or persons shall be deemed to be an establishment or class of establishments or to be employees or class of employees to whom the Act will apply either wholly or in part as the notifications may direct. The State Government has also been given power under S. 6 to suspend the operation of all or any of the provisions of the Act for any limited period and subject to such conditions as may be deemed fit on account of any holidays or occasions.
10. Thus, this Act is a piece of social legislation, primarily meant for regulating the conditions of work and employment in establishment of one or the other category defined in the Act. This Act repeals the original Bombay Shops and Establishments Act of 1939 which was in force for about nine years before its replacement. It has been amended from time to time, the latest amendment being by Maharashtra Act XXVI of 1961, after which it was brought into force in the whole of the State of Maharashtra.
11. We may now notice the contentions urged on behalf of the petitioner in this case. The petitioners says that he is not an employer within the meaning of S. 2(7) of the Act and is not, therefore, required to register under S. 7 of the Act. The reason given why the petitioner is not an employer is that the petitioner is not a person either owning or having an ultimate control over a shop. What an establishment means is defined specifically in S. 2(8) of the Act. That definition is as follows :
"'Establishment' means a shop, commercial establishment, residential hotel, restaurant, eating-house, theatre or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the State Government, may, by notification in the official gazette, declare to be an establishment for the purpose of this Act."
12. The definition "shop" is given in S. 2(27) of 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, warehouse or workplace, whether in the same premises or otherwise, mainly used in connexion 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; "
13. 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 S. 2(4) of the Act. That defination is as follows :
"'Commercial establishment' means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and includes a society registered under the Socities Registration Act, 1860, and a charitable or other trust, whether registered or not, which carries on, whether for purposes of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shops, residental hotels, restaurant, eating-houses, theatre or other place of public amusement or entertainment;"
14. The petitioner's contention, shortly put, is that though he carries on profession of law and is a lawyer, he does not have a commercial establishment which carries on the profession of an advocate. The very definition of the words "commercial establishment." according to the petitioner, leaves the matter vague and undefined, if not unintelligible. Whereas S. 2 defines "establishment" as a shop, a commercial establishment, residential hotel, etc., the same word "establishment" is used in defining "commercial establishment" as well. Unless a definite meaning can be spelt out from the definitions of "establishment" and "commercial establishment", it is contended, it is not possible to find out what activity or what kind of premises, if the word "shop" in S. 2 refers to premises, are intended to be included in a commercial establishment. It is also urged that the definitions requires "an establishment which carries on any business, trade or profession." The normal meaning that could be given to this expression is that there must be some organized activity carried on by one or more persons which can be described as a business, trade or profession. If the shop is to bear the meaning of a place of premises where any such activity is carried on, then it is improper to describe a commercial establishments as "an establishment which carried on any business, trade or profession." It is contended that an establishment can never itself carry on any business, trade or profession, but any of these activities may be carried on by a human being who may be controlling, owning or having that shop. It is also contended that it is not merely an establishment 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 work "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 work "commercial" must necessarily postulate some kind of commercial activity. Similarly, according to the petitioner, the use of the word "establishment" postulates an organized body of men maintained for a particular purpose. Unless the work 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 establishment, defined in S. 2(8) of the Act as referring to premises, the Act has used the work so defining them. For instances, "shop" in S. 2 is defined as meaning any premises where goods are sold, etc. Similarly, "restaurants" or "eating-houses" in S. 2 is defined as meaning as any premises in which is carried on wholly or principally the business of supply of meals, etc. Again "residential hotels" in S. 2 is defined as meaning any premises used for reception of guests or travellers desirous of dwelling or sleeping therein, etc. The argument, therefore, is that the word "establishment" used in defining in S. 2 the phrase "commercial establishment" is not used in the sense of premises but is used in the sense of a commercial activity. Unless, therefore, according to the petitioner, the activity which is carried on is of a commercial nature, whether that activity is in business, trade or profession, the place where such activity is carried on is not liable to be registered under the Shops Act. According to the petitioner, even though it is true that the petitioner has his office in his residential room and works therein for preparing briefs or interviewing clients to get instructions, to draft pleadings and also employs a clerk for that purpose, that office in which profession is carried on cannot be considered as a "commercial establishment." The activities which are intended to be covered in a commercial establishment" are minutely described and each must bear a different meaning. The activity may be regarding business, trade or profession. Here again these words are not severally defined in the Act and must, therefore, bear their ordinary normal meaning; the word "commercial" must bear its ordinary meaning in determining what activity is intended or what establishment is intended to be covered by the word. According to the petitioner, in order that the activity may be called a commercial activity, there must be some element of sale or exchange of goods offered there, goods in specie such as it takes place in a market place, or there may be only an activity undoubtedly of a commercial nature in which actual handling of goods is not necessary. But the transaction must bear the character of a commercial transaction and a commercial transaction necessarily implies some investment of capital and 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 specialized skill and training. Every one is not entitled to practise at law or appear in 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 to 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 briefs. 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 performs functions which are part of functions performed by the State in exercise of its sovereign power. They are in the nature of regal function and a lawyer is part and parcel of the whole administration of justice, the Court, its presiding officers and judicial tribunals. It is, therefore, suggested that this special character invested to the profession of law and of an advocate takes his profession poles apart from any activity which can be described as a commercial activity. It is not only in his office or in his chamber that a lawyer carries on his profession. A major part of his duty requires him to attend Courts and defend cases of his clients, to attend to other tribunals where permitted and to represent his clients' interest in several places outside his chamber or office room. It cannot, therefore, be predicated that the profession of law or that of an advocate is carried on only in his office. Though it is undoubtedly true that the lawyer is expected to work in his office or even at his home over his briefs, the place cannot be called an establishment where he carries on his profession, inasmuch as that is not the only place where he carries on profession in the first instances and the persons employed by him such as a typist or a clerk, or even a servant to sweep the premises of his office, are in no way connected with the actual duties he is required to perform in carrying out his profession.
15. It is also contended that unless the words of a statute are clear, it is not permissible to proceed against anyone, and it is the duty of the authorities to inform themselves clearly beforehand if they can, by proper interpretation of the statute, as to whether a particular activity, as in the instant case, can be called an activity of a commercial establishment in which a profession is carried on. If the words are vague, or vaguely used by legislature, a citizen cannot be subjected to the penal consequences resulting on account of such vague expressions in the statute. Rather than exposing the citizen to the risk of penal consequences of vague profession of law, the petitioner invited us to declare that the provision itself is void. In support of this proposition out attention was invited to the following passage in Craies on Statute Law :
"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 the The R. L. Alston [(1882) 8 P.D. 5, 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 construction will do injustice, 'It is the bounded 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 statute, a Court of Justice is bound to construe it, and, as far as it can, to make it available for carrying out the objects of the legislature, and for doing justice between the parties.' This rule is not peculiar to English law, and is equally applicable to Scottish and colonial statutes."
16. If this contention was not acceptable, it was urged in the alternative that in any case the word "establishment" used in a vague sense in defining "commercial establishment" under S. 2 of the Act cannot be equated to premises or a place where a profession is carried on unless the character of that activity is shown to be commercial in its nature. It is pointed out that the words used for defining "commercial establishment" are of wide amplitude and it is, therefore, necessary to restrict the meaning with reference to the context, the context being that only that type of activity is intended to be brought within the mischief of the Act which is commercial in character. When a similar occasion arose for interpretation of words used in a wide sense and finding their meaning with reference to the object of the Act, the caution and care necessary to find out the limits to which a definition or expression must be understood is laid down in certain precedents by the Supreme Court. In Hariprasad v. A. D. Divelkar [1957 - I L.L.J. 243] the question was whether the definition of the word "retrenchment" in S. 2 of the Industrial Disputes Act which provided that retrenchment means termination of service by the employer for any reason whatsoever must bear a meaning which will includes every kind of termination of employment, whether it is brought about on account of surplus labour or not, and would include termination on account of the closure of the establishment. In repelling this latter contention their lordships observed as follows :
"....... What is being defined is retrenchment, and that is the context of the definition. It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of he word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary 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."
17. Relying on this principle of interpretation it is urged that the definition of "commercial establishment" in S. 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 and another v. Meher (Industrial Tribunal, Bombay) and others [1962 - I L.L.J. 241]. 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 or 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 and others v. Hospital Mazdoor Sabha and others [1960 - I L.L.J 251] while interpreting the same word "industry" in the Industrial Disputes Act and in particular the following observations :
"....... that though S. 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word 'service' is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason."
18. Thus, the principle of interpretation of a provisions of a statute is that where words of very wide amplitude are used in a definition, caution has to be taken to see whether even within the definition itself there is an indication which limits the amplitude or wide range which would otherwise be given to the bare words. The petitioner contends that in the definition of "commercial establishment" in S. 2(4) this indication is given by the use of the word "commercial" which must limit establishments, even though carrying on business, trade or profession, only to those establishments which partake of an activity which is commercial in nature. How the vagueness or a definition may sometimes defeat the very purpose for which the statute is enacted is also stated, according to the petitioner, by another decision of their lordships of the Supreme Court in State of Madhya Pradesh v. Baldeo Prasad . In that case proceedings were started against a person under the Central Provinces and Berar Goondas Act. The definition of the word "goonda" within the meaning of the Act was vague. In dealing with this aspect of the case their lordships observed as follows :
"Incidentally it would also be relevant to point out that the definition of the word 'goonda' affords no assistance in deciding which citizen can be put under that category. It is an inclusive definition and it does not indicate which tests have to be applied in deciding whether a person falls in the 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 work '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."
19. 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.
20. The respondents had relied on the entries in Sch. II 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 S. 4 proviso, added some entries to Sch. II such as No. 18. Item 18 includes under "establishment" legal and income-tax practitioners, but excludes the operation of provisions of Ss. 13 and 18(1) so far as they concern the attendance of the legal practitioner and the attendance of their staff from the provision of S. 18. By reference to this item added in the schedule it was urged on behalf of the respondents that the intention of the legislature seems clear in view of the notification issued by the State Government. The petitioner has challenged this interpretation of the effect of the adding item 18 in Sch. II. According to him, one must find out what is the meaning of the term "commercial establishment" in the Act, and in particular in the definition of S. 2(4) itself. Either the legal practitioner's office is an establishment within the meaning of S. 2(4) or it is not. If the definition of "commercial establishment" in S. 2(4) does not justify extension of that definition to the office of an advocate, then the inclusion of an entry in Sch. II by the Government at a subsequent date will not enlarge the ambit of the definition. In fact, the proviso which empowers the Government, according to the petitioner, to omit or alter any of the entries by notification in the schedule, is in the nature of an exception. Neither a notification in exercise of this power not a proviso can have the effect of enlarging the section itself. Whether it is a statutory rule or a proviso, neither of these can be so interpreted as to enlarge the ambit of mischief which is contained in the main section of the statute. Our attention is invited in support of this proposition to the decision of the Privy Council in Madras and Southern Mahratta Railway v. Bezwada Municipality where it is observed that where the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms. This functions of the proviso was also approved by their lordship of the Supreme Court in Income-tax Commissioner v. Indian Mercantile Bank, Ltd. where their lordships observed :
"....... The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, portion 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."
21. 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 [1959 - II L.L.J. 205 at 217] where it is observed :
"....... if a rule goes beyond what the section contemplates, the rule must yield to the statute."
22. Then the argument is that unless the office of a legal practitioner or an incometax practitioner as such can be shown to be within the ambit of the definition of "commercial establishment" in S. 2(4) of the Act, any entry such as item 18 made by the State Government to Sch. 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 the Shops Act.
23. As to the effect of vagueness of a definition or provision of law, the petitioners also relied on a passage from Bindra's book on Interpretation of Statutes, 3rd Edn., at p. 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 public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative. The law must remain as it was, unless that which professes to change it, be itself intelligible. All permissible aids to construction should be used to ascertain the meaning of the statute, but if, after such effort, it is found to be impossible to determine, with any reasonable degree of certainty, what the legislature intended, the Act will be declared to be inoperative and void."
24. It is also contended on behalf of the petitioner that the decision of their lordships in Kalidas v. State of Bombay [1954 - II L.L.J. 694] has pointed out the purpose of this legislation (shops Act). That purpose is to enact a piece of social legislation designed partly to prevent sweated labour and the undesirable employment of women and young children and partly to safeguard the health and providing safety of workmen and employees. In that case the question was whether a person who did some repairs work or manufactured petty parts useful in a textile mill, in a small shop where he employed a couple of servants for assistance but the products of the labour were not sold, could be said to be a shop within the meaning of the Shops Act. In repelling the contention that the activity of the appellant was within the meaning of the Act, their lordships observed that the legislature did not intend to rope in small establishment of the kind but reserved power in the State Government to do that when desirable by the simple process of notification.
25. The learned counsel for the petitioner has pressed his contentions from another angle. We have already referred to his contention that the role of an advocate in practising and discharging his duties as such is participation in administration of justice, which is a regal function of the State. That administration of justice is a regal function of the State is now well-settled in view of the pronouncement of their lordships in the Nagpur Corporation v. Its employees [1960 - I L.L.J 523]. At p. 531 their lordships referred to the observations of Lord Watson in Coomber v. Justice of Berks [(1883) 9 A.C. 61 at 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 Issacs, J., in Federated State School Teachers' Association of Australia v. State of Victoria [(1929) 41 C.L.R. 569] to the following effect are quoted :
...... Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power."
26. When the question was raised with reference to the Industrial Disputes Act before their lordships in National Union of Commercial Employees and another v. Meher (Industrial Tribunal, Bombay) and others [1962 - I L.L. J. 241] (vide supra) in which work done by a firm of solicitors was expressed 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 as follows :
"Does solicitor's firm satisfy that test ? Superficially considered, the solicitor's firm is no doubt organized as an industrial concern would be organized. 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 professional equipment, knowledge and efficiency of the solicitor concerned. Subsidiary work which is purely of an incidental type and which is intended to assist the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor. For his own convenience, a solicitor may employ a clerk because a clerk would type his opinion; for his convenience, a solicitor may employ a menial servant to keep his chamber clean and in order; and it is likely that the number of clerks may be large if the concern is prosperous and so would be the number of menial servants. But the work done either by the typist or the stenographer or by the menial servant or other employees in a solicitor's firm is not directly concerned with the service which is solicitor renders to his client and cannot, therefore, be said to satisfy the test of co-operation between the employer and the employees which is relevant to the purpose ..... But has the work of the clerk who types correspondence or that of the accountant who keeps accounts any direct or essential nexus or connexion with the advice which it is the duty of the solicitor to give to his client ? The answer to this question must, in our opinion, be in the negative. There is, no doubt, a kind of co-operation between the solicitor and his employees, but that co-operation has no direct or immediate relation to the professional service which the solicitor renders to his client."
27. Further their lordships observed as follows :
"Looking at this question in a broad and general way, it is not easy to conceive that a liberal profession like that of an attorney could have been intended by the legislature to fall within the definition of 'industry' under S. 2(j). The very concept of the liberal profession, has its own special and distinctive features which do not readily permit the inclusion of the liberal profession into the four corners of industrial law."
28. Then at p. 246 their lordships referred to the observations of Issacs and Rich, JJ., in the Federated Municipal and Sire Council Employees' Union of Australia v. Melbourne Corporation [(1918-19) 26 C.L.R. 508] and quoted a passage in which the following is to be found :
"........ It (the concept of an industrial dispute) excludes, 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."
29. By extending the process of reasoning the petitioner contends that neither does the work in connexion 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 participates 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.
30. These contentions are met in the arguments of the respondents by urging that the interpretation sought to be put on S. 2(4), i.e., definition clause, regarding "commercial establishment", in 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 "establishment" means a place where a person is settled either for residence or for transacting business. It may also mean a person's residence and everything connected with it such as the furniture, etc. (p. 597). The word "establishment", therefore, according to the respondents, though not separately defined as premises, must be given that meaning. Unless the word is so construed and understood, it is not possible to find which types of activities are intended to be covered by the words "commercial establishment". According to the respondents, that establishments is a commercial establishment where any business, trade or profession is carried on. Even if the word "commercial" is not used, it would carry the same meaning, because an establishment in which is carried on or which carries on business, trade or profession is, according to the respondents, a commercial establishment. Inasmuch as the profession of a lawyer is admittedly carried on though partly in the office maintained by the petitioner or other advocates, that place where such business is carried on must be held to be a commercial establishment. In describing an establishment in which is carried or which carries on business, trade or profession as a commercial establishment the law does not import any additional considerations such as the activity being of a commercial nature. The Shops Act does want to extend the protection and the beneficent provisions of the statute to all persons employed in a place where any business, trade or profession is carried on. The fact that such a profession is carried on by the advocate or a legal practitioner would not make any difference if no special meaning is to be attached to the word "commercial". According to the respondents, the legislature has used the word "commercial" in defining the term "commercial establishment" and included it in the definition of "establishment" in S. 2(8) only to indicate that every establishment which carries on any one of these activities will be taken to be 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 in 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 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 practices 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 the this Act according to the definition of S. 2(4). It is pointed out that a registered society or a trust which carries on a business, trade or profession whether the object is gain or not will 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 S. 2(4) is so construed as to include every establishment in which business, trade or profession is carried on that it is treated as a commercial establishment. The mere fact that the sub-section profession to define a "commercial establishment" and yet includes an establishment which is separately defined in S. 2(8) cannot defeat the purpose of the definition once the word "establishment" is understood in the sense of premises where the business, trade or profession is carried on. The respondents have also relied on a decision of the Punjab High Court where the Punjab Shops and Establishment Act came to be examined. That case is reported in Dr. P. A. Paul v. State of Punjab [1962 - I L.L.J. 592]. Under the Punjab Act the definition of "commercial establishment" is given in the following terms is S. 2(1)(iv) :
"'commercial establishment' means any premises wherein any business trade or profession is carried on for profit, and includes journalistic or printing establishments and premises in which business of banking insurance, stocks and shares, brokerage or produce exchange is carried on or which is used as hotel, restaurant, boarding or eating-house, theatre, cinema, or other place of public entertainment or any other place which the Government may declare by notification in the official gazette to be a commercial establishment for the purpose of this Act;"
31. Interpreting this definition the Court held that a physician or surgeon who maintains a clinic and works during certain fixed hours and has some assistant working with him, will come under the Act because such a place is premises where in the profession is carried on. At p. 285, the Court has observed that the word "profit" or the word "profession" has no fixed meaning and it is to be interpreted in the context in which it is used in the particular enactment. Words can be given a wide or normal meaning consisted with the context in which they are used. Relying on this decision of the Punjab High court it is urged that if the definition in the Bombay Shops Act, principally in S. 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, sanitation, etc., are properly made. If the shopkeeper is the only person doing business in the shop, then the provisions of the Shops Act need not apply. This contention was not accepted and in repelling it their lordships observed at p. 1563 in Ramdhandas v. State of Punjab [1961 - II L.L.J. 102] as follows :
"'The ratio of the legislation is social interest in the health of the worker who forms an essential part of the community and whose welfare, therefore, the community is vitally interested. It is in 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 impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public ...... A restriction imposed with a view to secure this purpose would, in our opinion, be clearly saved by Art. 19(6) ....."
32. On a parity of reasoning, therefore, it is contended that the test for determining whether a particular establishment is or is not "commercial" within the meaning of the Act is to find out not whether any person is employed for assistance in carrying out business, trade or profession but to determine whether it is a premises or place where an activity which can be reasonably described as business, trade or profession, is carried on. If that test is satisfied, whatever the profession, according to the respondents, the premises are required to be registered under the Act.
It is these rival contentions which we are called upon to decide in considering the validity of the claim made by one side or the other. It cannot be gainsaid that the preamble of the Act as well as the several provisions to which we have made a reference show that the legislation is primarily a legislation for offering certain social benefits. The restriction on hours of work, prohibition of employment of children, young persons and women beyond certain hours, the requirement of cleanliness, ventilation, lighting, first-aid, provisions for leave with pay and a speedy machinery for realization of those wages, all point out the object of the legislation in clear terms. It is also clear that what is required to be registered are places or premises where one or the other kind of activity which is an establishment is carried on. Considered in this light, we are not in position to declare that the provision 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 the meaning is. We have endeavoured to find out that meaning and in our opinion the meaning is ascertainable if each of the words used in the definition of "commercial establishment" in S. 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 S. 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 of establishments. Therefore, in giving the meaning to the definition of the phrase "commercial establishment" in Sub-section (4) of S. 2, emphasis is obviously laid on the character if an establishment as a "commercial establishment". Unless an establishment, even though carrying on a business, trade or profession, is of a commercial character or the activities are of commercial nature, it cannot be said that it is within the meaning of the Act.
33. Now, what is meant by "commercial" is not defined. In the absence of any statutory definition by the legislature, we must understand the use of the word "commercial" in its ordinary, normal sense. In that sense it means any activity where one is engaged in commerce or which has a bearing on commerce. "Commerce" itself is defined as exchange of merchandise though sometimes on a large scale. In the Shorter Oxford Dictionary the word "commercial" is described as (1) engaged in commerce; trading, (2) of or relating to commerce or trade, and the word "commerce" itself meaning (1) to trade, traffic, (2) to hold intercourse or communication, associate with. It is not used in the latter sense except in an archaic sense. The meaning given to this word in the Webster's New Twentieth Century Dictionary may also be noticed. There are several meanings in which the word "commercial" may be understood with reference to what is meant initially by "commerce" and it means carrying on commerce or proceeding from trade and which is expressed by such expression as "commercial benefit," "commercial art, or "commercial artist," "commercial need," "commercial programmes," that has something to do with the basic concept of a commercial activity. What exactly is meant by "commerce" it may be difficult to define, but a useful definition of what is commercial seems to have been given as far back as 1848 by Lord Campbell. He put it this way :
"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 McKay v. Rutherford - (1848) 6 Moore P.C. 413 at 425.] 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 is carried on that is intended to be governed by the Act, but only those premises though carrying on one or the 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 carry on 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 every-day working definition of what a profession is has been given by Scrutton, L.J., in Commissioners of Inland Revenue v. Maxse [(1919) 1 K.B. 647]. It is observed as follows :
"... I am very reluctant finally to propound a comprehensive definition. A set of facts not present to the mind of the judicial propounder, and not raised in the case before him, may immediately arise to confound his proposition. But it seems to me as at present advised that a 'profession' in the present use of language involves the idea of an occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or surgery, by the intellectual skill of the operator, as distinguished from an occupation which is substantially the production or sale or arrangements for the production or sale of commodities. The line of demarcation may vary from time to time. The word 'profession' used to be confined to the three learned professions, the church, medicine and law. It has now, I think, a wider meaning."
34. Similarly in Currie v. Inland Revenue Commissioners [(1921) 2 K.B. 332] the same learned Judge observed as follows :
"... But I do desire to say this, as the Master of the Rolls has mentioned it, that I myself am disposed to attach some importance in findings as to whether a profession is exercised or not to the fact that the particular man is a member of an organized professional body with a recognized standard or ability enforced before he can enter it and a recognized standard of conduct enforced while he is practising it."
35. The question was again considered in another case where the question was whether a company doing the work of naval architect could be said to be carrying on a profession in naval architecture. The case was William Esplen, Son, and Swainston, Ltd. v. Inland Revenue Commissioners [(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 within the meaning of the section, because for this purpose it is of the essence of a profession that the profits should be dependent mainly upon the personal qualifications of the person by whom it is carried on, and that can only be an individual."
36. 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 dependent on individual characteristics, as observed by their lordships of the Supreme Court in National Union of Commercial Employees and another v. Meher (Industrial Tribunal, Bombay) and others [1962 - I L.L.J. 241] (vide supra) which was a case regarding work of solicitors and also attorneys. It is the personal skill, intelligence, study, integrity, which is the 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 every one 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 and another v. M. R. Meher (Industrial Tribunal, Bombay) and others [1959 - II L.L.J. 38 at 43] :
"The pursuit of a learned profession like that of a solicitor does not require any co-operation of labour. A solicitor offers his own personal services or, to put it in different words, is paid for the legal advice and legal assistance given by him personally. His staff cannot do this work or give legal aid to his clients. The money which he earns is for work done by him personally. Its quality depends on his personal qualifications, his brain, his knowledge of law, and the labour put in by him personally. The remuneration earned by him depends upon his personal reputation and the kind and quality of work done by him personally. His staff performs what may be called ministerial functions by typing his opinions or the documents prepared by him, or by maintaining accounts of his income and expenditure. There is no co-operation between or joint effort of the employer and the employee in this profession, nor is such co-operation or combined effort indispensable for carrying on the profession".
37. A lawyer who practises law is required to carry on his profession under several disciplines. There are statutory provisions like the Legal Practitioners Act or the Bar Councils Act; there are certain inhibitions in the conduct of the profession, provided by law such as the Code of civil Procedure. Order XXI, rule 73, of the Code prohibits a lawyer from performing any function in connexion with the sale held in Court either directly or indirectly or to acquire any interest in the property sold at the Court auction. There is a statutory duty of preserving the trust reposed in him during the course of his employment and after termination of such employment. The code of professional ethics enjoins strict observance of fairplay and considerations 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 in 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 realization of fees is possible to a limited extent only; prohibition from acquiring interest in subjectmatter 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 is 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.
38. The nature of the law practice, contrasted with other commercial ventures, to which we feel it is not comparable at all, is distinguished by four features, according to Henry S. Drinker in his book "Legal Ethics, p. 5."
39. The primary characteristics which distinguish the legal profession from business are :
(1) a duty of public service in which one may attain the highest eminence without making much money, (2) a relation as an "officer of Court" to administration of justice involving thorough sincerity, integrity, and reliability, (3) a relation to clients in the highest degree fiduciary, and (4) a relation to colleagues at the bar characterized by candour, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.
40. With these and other features, the activity of an advocate carrying on profession of law is radically distinguished from any other commercial activity. In the same book at p. 29, the following observations of Chief Justice Rugg are quoted :
"It is incompatible with the maintenance of correct professional standards to employ commercial methods of attracting patronage. Advertising such as that disclosed on this record is commonly designed to stimulate public thought and challenge popular attention to the end that the business of the advertiser may be increased. It has always been regarded as contrary to sound public policy for an attorney at law to foment litigation or to instigate law suits."
41. How the rule against 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 :
"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 the 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 attorney's office exists as a part of the larger plan of public justice."
42. As lawyers are officers of the Court, advertising would not only lower the whole tone of administration of justice, but there is another weighty reason why advertising should not only be discouraged but penalized. 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 of justice.
43. We have already noticed how the profession of a lawyer or an advocate is an individual profession and cannot be an organized 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 pp. 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 and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practise law for it, and a client of the corporation, for he would be subject to the directions of the corporation and not to the directions of the client. There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant. The corporation would control the litigation, the money earned would belong to the corporation, and the attorney would be responsible to the corporation only. His master would not be the client but the corporation, conducted it may be wholly by layman organized simply to make money and not to aid in the administration of justice which is the highest function of an attorney and counsellor at law. The corporation might not have a lawyer among its stockholders, directors, or officers. Its members might be without character, learning, or standing. There would be no remedy by attachment or disbarment to protect the public from imposition or fraud, no stimulus to good conduct from the traditions of an ancient and honourable profession, and no guide except the sordid purpose to earn money for stockholders. The bar, which is an institution of the highest usefulness and standing, would be degraded if even its humblest members became subject to the orders of a money-making corporation engaged not in conducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the State."
44. 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 professions but also from 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 draughtsman may be utilized, 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 organized body, may be made available as part of their commercial activity. The relations between a counsel and his client are not analogous to those of a trader and 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 be 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 plays 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 pronouncements 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 connexion, we may usefully quote the views of one of the eminent Chief Justices, at the time of declaring open the High Court at Nagpur in 1936 :
"All of us, Bench and Bar, are members of a profession, divided, it is true (as your President has already said in anticipation, though without knowledge of what I am now saying) into branches : those who have to decide and those who argue with a view to convince. Let us both see to it that we are loyal each to the other, Bench to Bar and Bar to Bench. The tree of justice, of which these two branches are the important members, will not suffer from the aridity induced by lack of regard.. That will depend upon, not any material resources but upon the mental and moral equipment of the men who man it." [1936 A.I.R. Journal, p. 19 - vide Sir Gilbert Stone.]
45. According to the view of the learned Chief Justice, the profession followed by an advocate and a Judge, though on two sides of the Bar, is the same profession; the functions of each are different but it is the same profession, the object being administration of justice according to law. We, therefore, find it difficult to accept the contention of the respondents that a lawyer's profession is a kind of profession which can be said to be carried on as profession of commercial nature. It is inherently improbable in the nature of things that the profession of a lawyer could be viewed as a commerical venture. In fact, the commercial character of business, which is an essential condition of a commercial activity, is absent in the lawyer's profession. We fail to see how a lawyer, whether he works in his office or appears in Court, can be said to be carrying on his profession in any of 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.
46. There are certain other obvious difficulties in accepting the contention 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 provisions 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 realization 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 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 profession as an advocate cannot possibly answer the definition of an "employer" in S. 2(7) of the Act. An employer is one who owns or has ultimate control over the employees of the establishment. In a sense this postulates some activity other than his own. He can be an owner or he may be a person who may be controlling the activity of his employees. So far as a lawyer is concerned, it is he himself who carries on the activity and there is no question of either bringing in or controlling the activities of any other persons who may be said to be carrying on the profession of a lawyer in an establishment. It is either himself or none else. Therefore, we also fail to see how such a person can be said to answer the definition of "employer" who is required to make an application for registration of the establishment under S. 7.
47. We, therefore, hold that the petitioner or others like him are not liable to have any establishment registered under the Bombay Shops and Establishments Act in pursuance of a like notice from respondent 2. As the petitioner and other advocates apprehended that they run the risk of prosecution for failure to comply with the provisions of S. 7 read with S. 52 of the Act, we direct that the respondents be prohibited from enforcing any of the provisions of the Act against the petitioner and other advocates. The petition is allowed and rule made absolute but there will be no order as to costs.