TMI Blog1985 (9) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 1964). The Act of 1963, a social welfare legislation, aims to regulate certain conditions of service of the employees. The petitioners are the partners who carry on the profession of Solicitors and Advocates under the name and style of Messrs. Orr, Dignam Company. Each of the petitioners are enrolled Advocates of this Court. In the normal course Messrs. Orr, Dignam Co. acts on behalf of its clients in regard to litigation in this Honourable Court and in various other High Courts including the Supreme Court of India. In connection with such work, circumstances often arise when it is necessary for the firm to keep its office open far beyond the ordinary working hours, so that urgent pleadings may be made ready and other urgent work done. Apart from the said partners there are assistants in the said firm of Solicitors who often attend conferences with counsel which are fixed and continued well beyond the ordinary working hours. According to the petitioners such urgent work and attending the conferences are normal mode of working amongst all advocates and it is not effectively possible to carry on the profession without doing so. In order to appreciate contentions raised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2 of the Act of 1981 reads as follows: "'Commercial establishment' means an advertising, commission, forwarding or commercial agency, or a clerical department of a factory or of any industrial or commercial undertaking, an insurance company, joint stock company, bank, brokers' office or exchange, 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 an establishment of any legal practitioner, medical practitioner, architect, engineer, accountant, tax-consultant or any other technical or professional consultant, a society registered under any enactment in force for the time being, charitable or other trust, whether registered or not, which carries on, whether for purposes of gain or not, any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and such other class or classes of concerns or undertakings as the State Government may, after taking into consideration the nature of their work, by notification, declare to be commercial establishments for the purposes of this Act, but does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in section 7(2), viz., "no person employed in an establishment..............goes to show that whenever the legislature intended to apply particular provision to the employees "only", it has expressed so in clear and unambiguous language. The omission of the legislature to restrict it to the employees "only", must be presumed to have been done deliberately. While it is correct to say that if two meanings could be attributed to a particular provision of the statute, the meaning which is more viable and save the legislation, that ought to be accepted by the law courts, but in this case in my view no two meanings can be attributed to the provision of section 5(a) read with section 2(1) except what has been stated above. On a plain reading of section 5(1) read with section 2(1) the legislative intent is categorical and in my view is a clear restriction on the lawyer's profession. To say that a legal practitioner would not be able to attend his establishment for a period of one and half days cannot but be said to be a restriction. The question therefore is whether the restriction is reasonable or unreasonable. Mr. Chatterjee however submitted that the restrictions are in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that "profession" involves the idea of an occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or of 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 (see Commissioners of Inland Revenue v. Maxse [1919] 1 KB 647). Legal practitioners practise the profession of law by virtue of the qualification acquired by them. The learned Standing Counsel placed strong reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa reproted in [1978] 3 SCR 207; AIR 1978 SC 548. The Kerala High Court while considering an allied matter observed that Bangalore Water Supply case does not have any direct impact on the subject-matter of the concerned writ petition. The Supreme Court in appeal from the judgment of the Kerala High Court approved the observations of the Kerala High Court in the case of Sasidharan v. Peter and Karunakar reported in AIR 1984 SC 1700. In that decision the Supreme Court observed: "An argument was strongly pressed upon us on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the Supreme Court, has observed that lack of classification creates inequality when there is a duty to classify as it is clearly hit by the prohibition to deny equality before the law as contained in article 14 of the Constitution. The same issue came up for consideration before the Supreme Court in a later decision in the case of State of Kerala v. Haji K. Kutty, reported in AIR 1969 SC 378 wherein the Supreme Court laid down that refusal to make a rational classification may itself in cases operate as denial of equality. The same view was also reiterated by the Supreme Court in the case of Murthy Match Works v. Assistant Collector of Central Excise AIR 1974 SC 497. While it is true that the concept about the legal profession as laid down by the Supreme Court, in the solicitors' case (National Union of Commercial Employees v. M.R. Meher, Industrial Tribunal, Bombay) reported in AIR 1962 SC 1080, has undergone a change, but the fact still remains that legal profession as such cannot be equated or placed at par with any other shop or establishment under the Shop Act. A meat shop or sweetmeat shop cannot in my view be placed at equal footing and be treated equally by the ..... 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