Indian Kanoon - Search engine for Indian Law

1. These petitions under Article 226 of the Constitution pray for the issue of certiorari to call for the records of the Commissioner of Labour and to quash his order dated 27th October, 1960, and the order of Additional Commissioner for Workmen's Compensation dated the 26th April, 1961, respectively. The facts are briefly as below.

2. The petitioner in W.P. No. 602 of 1961 is a partner of a registered firm of Chartered Architects. The firm of the petitioner terminated the services of one T.M. Lingam, an employee, after issuing due notice to him. Though the termination. of his service was not objected to by that employee, he subsequently preferred an appeal under the Madras Shops and Establishments Act before the Commissioner for Workmen's Compensation for payment of gratuity or other amounts, or, in the alternative, for his reinstatement. The petitioner objected to the proceedings contending that as the firm was carrying on a profession of Consulting Architects, it could not be classified as a shop or an establishment within the meaning of the Madras Shops and Establishments Act. Upon this the question came before the Commissioner of Labour under Section 51 of that Act. The Commissioner held in the order impugned that the firm is not a commercial establishment but is a. shop within the meaning of Section 2(16) of the Act. It is contended by the petitioner that the partners of the firm are carrying on the profession of Consulting Architects, the partners being members of the Royal Institute of British Architects as well as its Indian counterpart, the Indian Institute of Architects. It may be stated that the senior partner died and the present petitioner, Sri S.L. Chitale, is the sole surviving partner. According to the petitioner, the membership of the above institute is confined only to qualified architects who have to pass an examination conducted by the Royal Institute. Only persons with certain specified qualifications could become members of the Indian Institute of Architects. Such a person should possess certain specified qualifications evidenced by diplomas granted by an authorised body. It is further stated that as a member of these institutes, the petitioner is governed by certain exacting codes of professional conduct very much on the same lines as those governing Advocates and Auditors. A member is prevented from carrying on a. business as auctioneers or estate agents or trading in materials used in connection with the building industry or to advertise or offer professional services or to accept a. position in which his interest is in conflict with his professional duty. There are prescribed scales of professional charges. He is to function as an arbitrator between the building owner and the contractor, interpret the conditions of the contract between the two and generally to prepare plans, estimates and the like. His, employment as an architect is terminable by his client. A long list of the duties, which a Consulting Architect is bound to perform for his client are set out, which, according to the petitioner, are of highly technical nature. In these circumstances-the petitioner complains that the determination by the Commissioner that the office of a Consulting Architect is a shop wherein services are rendered to customers is. wholly incorrect. It is claimed that an architect's client cannot be timed a customer and that the professional services rendered by the architect cannot be equated to a. person carrying on a commercial business in a shop. It is for these reasons that the petitioner claims that his status as a person carrying on a profession has to be equated, to that of a Doctor or a Lawyer or an Auditor.

4. The question that arises for consideration in both of these writ petitions is whether the officer of a firm of Chartered Architects comes within the scope of the expressions 'shop' or 'establishment' under the Madras Shops and Establishments Act. At the outset it may be pointed out that under Section 6 of the above said-Act, the State Government purported to exempt certain classes of establishments from the operation of the Act : among them are, Advocates' Chambers, Doctors' Consulting Rooms, Nursing Homes, Hospitals and other institutes for the treatment and care of the sick, infirm, the destitute or the mentally unfit. I am referring to this, exemption in the forefront, for it is contended on the other side that but for this-exemption, even the Advocates' Chambers and Doctors' Consulting Rooms would, come within the scope of the above said Act.

These three definitions are important, but they are by no means very easy to interpret. In so far as the "commercial establishment" and "shop" are concerned the one does not include the other. But "establishment" is the general expression which takes in both a shop and a commercial establishment. The view taken by the: Commissioner of Labour was that the petitioners do render service to their clients-and customers and that though such services depend upon their own personal skill and proficiency, that does not make any difference in determining whether the premises is a shop or not. The petitioners have employed staff working in the premises doing various kinds of jobs such as drawing of plans, working out costs, making: bills and maintaining registers. It is for these reasons, principally that the petitioners, offer services to their clients and customers, that the Commissioner of Labour held that the definition of a shop will be attracted. He also placed some reliance upon the fact that the offices of a Chartered Architect have not been exempted while Advocates' Chambers and Doctors' Consulting Rooms have been exempted. He thought that by implication even the Advocates' Chambers and the Doctors' Consulting Rooms would otherwise have to be regarded as shops within the meaning of the Act, and if that was so, there was no reason why a different view should be taken. of the offices of a Chartered Architect.

8. The other part of the definition of a' shop ', that is, a 'shop' means 'any premises where services are rendered to customers' is to my mind equally inapplicable to the case of a Chartered Architect. It is not denied by the other side that a Chartered Architect does carry on a learned profession and that it is his special qualifications that are placed at the disposal of his clients. The manifold duties of a Chartered Architect and the restrictions that have been placed upon the discharge of his professional functions have been referred to by the learned Counsel. The Code of Professional Conduct prescribed by the Royal Institute of British Architects indicates that he is as much constrained in the preformance of his functions as a Lawyer or a Solicitor is. Learned Counsel for the petitioners has also referred to Corpus Juris where an architect is defined as one skilled in practical architecture, or whose profession is to devise the plans and ornamentation of buildings or structures or direct their construction. The requirement of learning, skill and integrity for the carrying on of that profession are also indicated. That an architect is called upon to prepare plans on behalf of his client for the construction of a building, to prepare estimates and the like and even to supervise the constructions in the interests of his client are not denied. How in these circ instances it can be said that the Office of a Consulting Architect can be regarded as premises where services are rendered to customers it is difficult to see. In the context in which this part of the definition finds place, associated with trade or business on the one side and with offices, store rooms, godowns and warehouse on the other, ordinary principles of construction would appear to require that this part of the definition should be construed as services rendered to customers in the carrying on of trade or business. The matter is not covered by any authority, but I am certainly of the view that the office of an Architect cannot be termed a premises where services are rendered to customers.