TMI Blog1968 (5) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in certain establishments and sec. 1(3) provides that the Act is to apply, save as otherwise provided therein, to factories and every other establishments in which 20 or more persons are employed. Sub-sec. (4) of sec. 1 also provides that the Act is to have effect in relation to such factories and establishments from the- accounting year commencing on any day in 1964 and every subsequent accounting year. But these provisions do not, for that reason, necessarily mean that the Act was not intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus and the persons to whom it should apply. Even where an Act deals comprehensively with a particular subject-matter, the Legislature can surely provide that it shall apply to particular persons or groups of persons or to specified institutions only. Therefore, the fact that the preamble states that the Act shall apply to certain establishments does not necessarily mean that it was not intended to be a comprehensive provision dealing with the subject-matter of bonus. While dealing with the subject-matter of bonus the Legislature can lay down as a matter of policy that it will exclude from its application certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Act did got therefore apply to his dispensary and the appellant bad not committed any offence. The City Magistrate (First Court), (Munjipal), Ahmedabad held that the appellant was not guilty and acquitted him. The State of Gujarat took the matter in appeal TO the High Court of Gujarat in Criminal Appeal No. 208 of 1964. The appeal was allowed by the High Court by its judgment dated February 14, 1966 and the appellant was convicted for an offence under s. 52(e) read with s. 62 of the Act and r. 23(1) of the Rules and sentenced to pay a fine of ₹ 25, in default to undergo, simple imprisonment for a week. This appeal is brought by certificate from the judgment of the High Court. Before considering the rival contentions of the parties it is necessary to examine the scheme of the Act. The preamble to the Act states that it is an Act to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments, residential hotels. restaurants, eating houses, theatres, other places of public amusement or entertainment and other establishment . Section 2(4) ,of the Act defined Commercial establishment as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded accordingly. Section 5 provides as follows: (1 ). Notwithstanding anything contained in this Act, the State Government may, by notification in the Official Gazette, declare any establishment or class of establishments to which, or any person or class of persons to whom, this Act or any of the provisions thereof does not for the time being apply, to be an establishment or class of establishments or a person or class of persons to which or whom this Act or any provisions thereof with such modifications or adaptations as may in the opinion of the State Government be necessary shall apply from such date, as may be specified in the notification. (2) On such declaration under sub-section (1), any such establishment or class of establishments or such person or class of persons shall be deemed to be an establishment or class of establishments to which, or to be an employee or class of employees to whom, this Act applies and all or any of the provisions of this Act with such adaptation or modification as may be specified in such declaration, shall apply to such establishment or class of establishments or to such employee or class of employees. Chapter II deals with the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travention of certain provisions and cl. (e) of that section provides for the penalty if the employer contravenes the provisions of s. 62 by not maintaining the prescribed register. Section 62 provides for maintenance of registers and records and display of notices as may be prescribed by Rules. Section 63 deals with wages for overtime work. On behalf of the appellant Mr. Mehta put forward the argu- ment that under s. 2(4) of the Act which defines 'Commercial' Establishment' as an establishment which carries on any business, trade or profession, the emphasis was not on the place from which the trading or professional activity was carried on but the emphasis was really on the nature of the activity which must be a commercial activity. In other words, the contention was that the intention of the legislature in enacting s. 2(4) was to include only those professions which are carried on in a commercial manner' It was therefore contended that in the present case the dispensary of the appellant does not fall within the definition of 'Commercial Establishment' under s. 2(4) of the Act. In our opinion, the argument addressed on behalf of the appellant is well-fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st C. J. from the company in which it is found the legislature appears to have meant those paved footways in large towns which are too narrow to admit of horses and carriages. And Park J. added : The word 'footway' here noscitur a sociis. In the present case, certain essential features or attributes are invariably associated with the words business and trade as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition of s. 2(4') of the Act, though. their normal import may be much wider. We are therefore of opinion that the professional establishment of a doctor cannot come within the definition of s. 2(4) of the Act unless the activity carried on was also commercial in character. As to what exactly is meant by Commerce it may be difficult to define but in an early case-McKav v. Rutherfurd(3), Lord Camp-bell gave a useful definition : 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 . It is true that the definition of Lord Campbell is the conventional definition attributed to trade or commerce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he personal qualifications of the person by who m it is carried on, and that can only be an individual. (1) [1919] 1 K.B. 647, 657. (2) [1919]2K.B731 It is therefore clear that a professional activity must be an -activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction therefore between a professional activity and an activity of a commercial character and unless the profession carried on by the appellant also partakes of the character of a commercial nature, the appel- lant cannot fall within the ambit of S. 2 (4) of the Act. In The National Union of Commercial Employees and another v. M. R. Meher, Industrial Tribunal, Bombay(1) it was held by this Court that the work of solicitors is not an industry within the meaning of s. 2(J) of the Industrial Disputes Act, 1947 and therefore any dispute raised by the employees of the solicitors against them cannot be made the subject of reference to the Industrial Tribunal. In dealing with this question, Gajendragadkar, J., speaking for the Court, observed as follows at page 163 of, the Report: When in the Hospital case ((1960) 2 S.C.R. 866) this Court referred to the Organis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the number of clerks may be large if the concern is pros- perous 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 the solicitor renders to his client and cannot, therefore, be said to satisfy the test of cooperation between the employer and the employees which is relevant to the -purpose. There can be no doubt that for carrying on the work of a solicitor effiecently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants. But has the work of the clerk who types correspondence or that of the accountant who keeps account,; any direct or essential nexus or connection 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 cooperation between the solicitor and his employees, but that cooperation has, no direct or immediate relation to the professional service which the solicitor renders to his client. ........ Looking at th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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