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PETITIONER: V. SASIDHARAN

       Vs.

RESPONDENT: PETER & KARUNAKAR & ORS.

DATE OF JUDGMENT23/08/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D.

CITATION:  1984 AIR 1700            1985 SCR  (1) 601  1984 SCC  (4) 230        1984 SCALE  (2)201

ACT:      Shop & Establishments Act 1960 (Kerela Act). Sec. 2(4)- Firm of Lawyers Whether a commercial establishment.

HEADNOTE:      The appellant  preferred an  appeal  to  the  Appellate Authority   under    the   Kerela   Shops   and   Commercial Establishments Act,  1960 (For  short. the  Act) against his dismissal from  service by  respondent  No.  1,  a  firm  of Lawyers. Respondent  No. 1  raised a  preliminary  objection that the  appeal was not maintainable since Respondent No. I firm was  not a  commercial establishment under the Act. The Appellate Authority  upheld the  preliminary  objection  and dismissed the  appeal. His  writ Petition and Letters Patent Appeal in  the  High  Court  against  the  judgment  of  the Appellate Authority  were also  dismissed. Hence this appeal by special leave.      Dismissing the appeal, ^      HELD: (I) The question whether respondent No. I-firm is a commercial  establishment must  naturally depend  upon the definition of  that expression and the definition of cognate expressions which  are contained  in the Act. The definition of "commercial  establishment" contained  in sec.2(4) of the Act may be simplified by restating it in separate clauses as follows: (I)  Commercial, Establishment means five different kinds of  establishments; commercial,  industrial,  trading, banking or  insurance; (2) Commercial Establishment means an establishment or administrative service in which the persons employed are  mainly engaged  in office work; (3) Commercial Establishment means  a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house; (4) Commercial Establishment means  a theater  or any other place of public amusement or entertainment; and (5) Commercial Establishment includes such  other establishment as the Government may, by notification in  the Gazette.  declare to  be  a  commercial establishment  for  the  purposes  of  the  Act.  Commercial Establishment does not include a factory to which any of the provisions of  the Factories  Act, 1948  apply Section  2(8) defines ’establishment’  to mean  a  shop  or  a  commercial establishment. The  definition of  shop  contained  in  sec. 2(15) shows  that in  order that  an  establishment  can  be

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regarded as  a shop  it is  necessary  that  some  trade  or business must  be carried  on there  or some service must be rendered to  ’customers’. The expression ’shop also includes offices, warehouses.  store rooms  or godowns which are used in connection  with the trade or business. [30H; 603H, 605A, D-G]. 602      (2) A  lawyer’s office  or the  office  of  a  firm  of lawyers cannot  obviously fall  under clauses (3) and (4) of section 2(4). Nor has the Government issued any notification as contemplated  by section  2(4). The question thus narrows itself into  whether a lawyer’s office falls under either of the first  two clauses. Since by the definition contained in the  first   clause   of   section   2(4),   a   ’commercial establishment means an establishment, a place of work cannot be  regarded   as  a  commercial  establishment  unless  the activity is  conducted  in  a  ’shop’  or  in  a  commercial establishment, which is really tautological. Whatever may be the popular conception regarding the role of today’s lawyers and the alleged narrowing of the gap between a profession on one hand  and a  trade or business on the other, it is trite that, traditionally,  lawyers do  not carry  on a  trade  or business nor  do they  render services  to  customers’.  The context as  well as  the phraseology  of the  definition  in section 2(15) is inapposite in the case of a lawyer’s office or the office of a firm of lawyers. Therefore, the office of a lawyer  or of  a firm  of lawyers is not a shop within the meaning of sec. 2(15) of the Act. [605C, F-G]      (3)  The   argument,  that   a  lawyer’s  office  is  a commercial establishment  because, persons  who are employed in that  office are mainly engaged in office work, cannot be sustained. This argument overlooks that (i) under the second clause  of   the  definition  in  section  2(4),  commercial establishment’ means  "an  establishment  or  administrative service in  which the persons employed are mainly engaged in office work"  and thus  the same question arises again as to whether a  lawyer’s office is an " establishment’ within the meaning of  the Act;  and (ii) that a lawyer’s office is not an administrative  service’ and it will be doing violence to the language  of the second clause of sec. 2(4) to hold that a  lawyer’s  office  is  an  ’administrative  service’.  The proposition is  well established  that words  which occur in the same  context must take their colour from each other. It is unrealistic  to dissect  the definition clause in section 2(4) and  to catch  a word here or there in order to bring a lawyer’s office within the four corners of the definition of commercial  establishment’.  The  various  clauses  of  that definition would  show that  establishments, far  apart from professional offices  were within  the contemplation  of the legislature.[606BtoD]      (4) Chapters  1-A, II.  III,  IV,  V  and  VI  as  also sections 6,8,  10 and  other cognate  provisions of  the Act also strengthen the conclusion that a lawyer’s office cannot possibly  be   comprehended  within   the  meaning   of  the expression ’Commercial  establishment’ as defined in section 2(4) of the Act. [607A-B]      Bangalore  Water   Supply  and   Sewage  Board   v.  A. Rajappa.[1978] 3 SCR 297 and Indian Chambers of Commerce and Industry [1974] 2 LLJ. 271. distinguished.

JUDGMENT:          CIVIL APPELLATE JURISDICTION: CIVIL APPEAL                       No. 2029 of 1980

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    Appeal by  Special leave  from the  judgment and  Order dated 603 the 26th  July, 1970 of the Kerala High Court in W.A. No. 11 of 1978.      K.R.R. Pillai for the Appellant.      P. Govindan  Nair E.M.S.  Anm, M.K.  Dua and  Miss Baby Krishnan for Respondents No. 1, 3 & 4. For Applicant/Interveners:      K.M.K.Nair for Bar Council, Kerala.      R.C. Misra  & Vimal  Dave for Supreme Court Bar Clerk’s Association.      The Judgment of the Court was delivered by      CHANDRACHUD,  C.J.   The  question   which  arises  for consideration in this appeal is whether a firm of lawyers is a ’commercial  establishment’  within  the  meaning  of  the Kerala  Shops   and  Commercial   Establishments  Act,  1960 (referred to herein as ’the Act’).      The appellant, V. Sasidharan, was working as a clerk in a firm  of lawyers  which is  respondent 1  to this  appeal. Respondents 2,  3 and  4  are  partners  of  the  firm.  The services of  the appellant  were terminated  by the  firm on February 3,  1977, whereupon  he preferred  an appeal to the Appellate Authority  under the  Act. A preliminary objection was raised  in that appeal by the firm on the ground that it was not  a commercial  establishment. By  a  judgment  dated August  11,   1977,  the   Appellate  Authority  upheld  the preliminary objection and dismissed the appeal.      Being aggrieved by that judgment, the appellant filed a writ petition  (O.P.No. 3380 of 1977-B) in the High Court of Kerala. A  learned single  Judge of the High Court dismissed that  writ  petition,  against  which  the  appellant  filed Letters Patent appeal (W.A. No. 11 of 1978). That appeal was dismissed on  July 26, 1978. This appeal by special leave is filed against  the judgment  of the  Division Bench  of  the Kerala High Court.      The decision  of the question whether respondent 1 firm is a  commercial establishment,  must naturally  depend upon the definition  of that  expression and  the definitions  of cognate expressions 604 which are contained in the Act.      Section  2   (4)  of   the  Act   defines   "commercial establishment" as follows:           "Commercial establishment’,  means a commercial or      industrial  or   trading  or   banking   or   insurance      establishment,  an   establishment  or   administrative      service  in  which  the  persons  employed  are  mainly      engaged in  office work, hotel, restaurant, or boarding      or eating house, cafe or any other refreshment house, a      theatre or  any other  place  of  public  amusement  or      entertainment and  includes such other establishment as      the Government  may, by  notification  in  the  Gazette      declare  to  be  a  commercial  establishment  for  the      purposes of this Act, but does not include a factory to      which all  or any  of the  provisions of  the Factories      Act, 1948 (Central Act 63 of 1948) apply."      Section 2(8)  defines "establishment" to mean a shop or a commercial establishment. Section 2 (15) defines "shop" as follows:           "Shop" means  any  premises  where  any  trade  or      business is  carried on  or where services are rendered      to  customers,   and  includes  offices,  store  rooms,      godowns or  warehouses, whether in the same premises or      otherwise,  used  in  connection  with  such  trade  or

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    business   but    does   not   include   a   commercial      establishment or a shop attached to a factory where the      persons employed  in the  shop are allowed the benefits      provided for  workers under  the  Factories  Act,  1948      (Central Act 63 of 1948)"      It is  on the  basis of these definitions that we shall have to  decide whether  the office of a lawyer or of a firm of lawyers  is a commercial establishment within the meaning of the Act.      The definition  contained  in  section  2  (4)  may  be simplified   by restating it in separate clauses as follows: (1) Commercial  Establishment means  five different kinds of establishments: commercial,  industrial, trading, banking or insurance;   (2)    Commercial   Establishment    means   an establishment or administrative service in which the persons employed are  mainly engaged  in office work; (3) Commercial Establishment means  a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house; 605 (4) Commercial  Establishment means  a theatre  or any other place  of   public  amusement   or  entertainment;  and  (5) Commercial Establishment  includes such  other establishment as the  Government may,  by  notification  in  the  Gazette, declare to be a commercial establishment for the purposes of the Act. Commercial Establishment does not include a factory to which  any of  the provisions  of the Factories Act, 1948 apply.      A lawyer’s  office or  the office  of a firm of lawyers cannot obviously  fall under  clauses (3) and (4) above. Nor has the  Government issued  any notification as contemplated by section  2 (4).  The question  thus narrows  itself  into whether a  lawyer’s office  falls under  either of the first two clauses.      The expression  ’establishment’ is  defined by  section 2(8) mean a shop or a commercial establishment. Since by the definition contained  in the first clause of Section 2(4). a commercial establishment  means an establishment, a place of work cannot be regarded as a commercial establishment unless the activity  is conducted  in a  ’shop’ or  in a commercial establishment, which  is really tautological. The definition of ’shop’  which is contained in section 2(15) shows that in order that an establishment can be regarded as a shop, it is necessary that some ’trade’ or ’business’ must be carried on there or  some service  must be  rendered to ’customers. The expression ’shop’  also includes  offices, warehouses  store rooms or godowns which are used in connection with the trade or business.  It does  not require  any strong  argument  to justify the  conclusion that  the office of a lawyer or of a firm of  lawyers is  not a  ’shop’  within  the  meaning  of section  2(15).  Whatever  may  the  popular  conception  or misconception regarding the role of to-day’s lawyers and the alleged narrowing  of the  gap between  a profession  on one hand and a trade or business on the other, it is trite that, traditionally, lawyers  do not  carry on a trade or business nor do  they render  services to ’customers’. The context as well the  phraseology of  the definition in section 2(15) is inapposite in the case of lawyer’s office or the office of a firm of lawyers.      Learned  counsel   for  the  appellant  argues  that  a lawyer’s  office  is  a  commercial  establishment  because, persons who  are employed  in that office are mainly engaged in office work. This 606 argument overlooks  that. under  the second  clause  of  the definition in section 2(4), ’commercial establishment’ means

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"an establishment  or administrative  service in  which  the persons employed are mainly engaged in office work". Partly, we go  back to  the same  question as  to whether a lawyer’s office is  an ’establishment’ within the meaning of the Act. The other  aspect which  this argument fails to take note of is  that   a  lawyer’s  office  is  not  an  ’administrative service’. It  seems to  us doing violence to the language of the second  clause of  section 2(4)  to hold that a lawyer’s office is  an ’administrative  service’. This  argument  has therefore to be rejected.      The proposition  is well-established  that words  which occur in  the same  context must take their colour from each other. It is unrealistic to dissect the definition clause in section 2(4)  and to  catch a word here or there in order to bring a  lawyer’s office  within the  four  corners  of  the definition  of   ’commercial  establishment’.   The  various clauses of  that definition  would show  that establishment, far  apart   from  professional  offices,  were  within  the contemplation of the legislature.      For these  reasons, we  are of  the  opinion  that  the office of  a lawyer  or  of  a  firm  of  lawyer  is  not  a ’commercial establishment’  within the  meaning of  the Act. This conclusion  is strengthened  by the other provisions of the Act. Chapter I-A of the Act provides for registration of establishments, Chapter  II for  hours of  work, Chapter III for holidays  and leave, Chapter IV for wages, Chapter V for employment of  children and  women and Chapter VI for health and safety  measures. Section  6 of the Act provides that no employee in  any establishment  shall be required or allowed to work  for more  than eight  hours on  any day or for more than 48  hours in  any week  Section 8  requires  that,  the period or  work of  an employee in an establishment for each day shall be so fixed that no period shall exceed four hours and that  no such person shall work for more than four hours before he has had an interval for rest of at least one hour. Under section  10, no  establishment shall,  on any  day, be opened earlier  than and closed later than such hours as may be fixed  by the  Government, provided that any customer who is  being   served  or  is  waiting  to  be  served  in  any establishment at  the hour  fixed for  its  closing  may  be served during a quarter of an hour 607 immediately following  such hour.  These and  other  cognate provisions of  the Act  show that  a lawyer’s  office cannot possibly  be   comprehended  within   the  meaning   of  the expression ’commercial  establishment’ as defined in section 2(4) of  the Act.  We are quite solicitous about the welfare of those  who work  in the  lawyers’ offices. But, there are many other  ways in  which their  welfare can be ensured. If the current  trends are  any indication  and if old memories fail  not,  the  earnings  of  lawyers’  clerks  cannot,  in reality, bear  reasonable comparison  with the  earnings  of employees of  commercial establishments, properly so called. They, undoubtedly,  work hard  but they  do not  go  without their reward.  They come early in the morning and go late at night, but that is implicit in the very nature of the duties which they  are required  to perform and the time they spend is not a profitless pastime.      An argument  was strongly  pressed upon us on the basis of the  decision of this Court in Bangalore Water supply and Sewage Board  v. A.  Rajappa.(1) The  High Court has rightly observed that  the question  which arose  in that  case  was entirely different,  namely, the sweep of the meaning of the word ’industry’.  The ratio  of that  decision is  that term ’industry’ covers  any activity  which is  systematically or

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habitually undertaken  for the production or distribution of goods or for rendering material services to the community at large with  the help of employees. The question which arises in this  appeal is  basically different,  namely, whether  a lawyer’s office  or the  office of  a  firm  of  lawyers  is commercial establishment.  Considerations which were germane to the  determination of the question in the Bangalore Water Supply case  are foreign  to the  decision of  the  question before us.      In Indian  Chambers of  Commerce and  Industry(2) case, the question  was whether  the Federation of Indian Chambers of Commerce  and  Industry  is  a  commercial  establishment within  the  meaning  of  the  Delhi  shops  and  Commercial Establishment Act,  1954. This  Court pointed  out that  the definition of  ’commercial establishment’  in that Act is so wide that  the activities  of  a  registered  society  or  a charitable trust  would also fall within the purview of that definition. 608      The learned  single Judge and the Division Bench of the Kerala High  Court have  dealt with the questions arising in this appeal  with care.  We agree  with their  reasoning and hold that  the office of a lawyer or of a firm of lawyers is not a  ’commercial  establishment’  within  the  meaning  of section 2(4) of the Act.      The Bar Council of Kerala and Clerks Association of the Supreme Court  Bar had  intervened in  this matter.  We must express our thankfulness to them for the assistance rendered by them.      In the  result, the  appeal is dismissed but there will be no order as to costs. M.L.A.    Appeal dismissed. 609