# DR. DEVENDRA M. SURTI v. STATE OF GUJARAT

- **Citation:** [1969] 1 S.C.R. 235
- **Court:** Supreme Court of India
- **Decided:** 1968-05-02
- **Case number:** Criminal Appeal No. 102 of 1966
- **Bench:** V. R.AMAsWAMI, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-devendra-m-surti-v-state-of-gujarat-4389
- **Pages:** 10

## Headnote

Bombay Shops and Establishm.ents
Act, 79 of 1948, s. 2(4) Rul•·
23(1)-Doctor's dispensary
whether a
commercial
establishment
as.
defined in s. 2(4)-Non-nzaintenance of
register of employees
underr. 23(l)whether an off.ence.
The. appellant, a medical practitioner \Vho also maintained a disPen~·
sary, was prosecuted for non-maintenance of a register of employees as
required by r. 23 (I) of the rules made under the Bombay Shops arul'
Establishments Act, 1948. He contended that he could not be prosecuted'
because his dispenSary was not a 'commercial establishment' as defined'
ins. 2(4) of the Act.
He was acquitted by the trial magistrate but the
High Court. on appeal by the State oonvicted him.
In appeal by special'
leave to this Court,
HELD: Section. 2(4) has used words of very wide import
and'
grammatically it may even include· the consulting room where a doctor
examines his patients with the help of a solitary nurse. or attendant. But
the language of s. 2(4) must be
construed on the principle noscitur a
sociis. i.e. when two or more words susceptible of analogous meaning
are coupled together the words take their colour from each other and
the more general are restricted to a sense analogous to less
general.
[240 A-C]
The word~· 'commercial establishment' and 'profession' in s. 2(4)
are used along with the words 'business and trade' and must therefore be
restricted to activity analogous to business or trade.
Professional activity
cannot be treated as \Vithin the definition of s. 2 ( 4) unless it is. organised
as trade and business are organised i.e. the activity as systematicalJy or
habitually undertaken for rendering material services to the community
at large or a part of such community with the help of the employees and
such an activity generally involves cooperation of the employer and the
employees. [244 C-El
Tested in the light of these principles the appellant did not fall with-·
in the purview of the Act and his conviction was illegal. [244 E-F]
The National Union of Con1mercial Employees and Anr. v.
M. R.
Meher, Industrial Tribunal, Bombay, [1962] Supp, 3 S.C.R. i57, relied'
on..
Reed v. Ingham. 3 E.-B 889, Scales v. Pickering,
(1828) 4 Bing.
448, 452, 453, McKay v. Rutherfurd, 6 Moore P.C. 425, Commissioners
of Inland Revenue v. Maxse,
[1919] I
K.B.
647, 657
and
William
Esp/en, Son, and Swainston Ld. v. Inland Revenue Commissioners, [1919]'
2 KB. 731, referred to.
CRIMINAL APPELLATE
JURISDICTION :
Criminal
Appeal
No. 102 of 1966.
Appeal from the judgment and order dated February 14,
1966 of the Gujarat High Court in Criminal Appeal No. 208 of
1964.
.
236
SUPREME COl.'RT REPORTS
[ 1969] I S.C.R.
S. T. Desai, Arun H. Mehta and I. N. Shroff, for lhc appellant.
R. H. Dhebar and M. S. K. Sastri, for the rcsPondcnt.
,
The Judgment' of the Coun was delivered by
Ramaswami, J.-The question involved in this app:al is as
to whether a Doctor's dispensary is a "Commercial E.stablishment" within the meaning of the Bombay Shops and Establishments Act, 1948 (Bombay Act LXXIX of 1948), hereinafter
referred to as the 'Act'.
The case of the prosecution is that the appellant was a doctor
having his dispensary situated near Jakaria Masjid at Ahmcdabad.
The dispensary is registered as a 'Commercial Establishment'
under the provisions of the Act.
The complainant Shri Patel
visited the dispensary on June 13, 1963 at about 9.50 a.m. ;ind
found that though the dispensary was registered as 'Commercial
Establishment' under the Act, the Register produced before him
at the time of his visit was not maintained as
required under
Rule 23 ( 1) of the Rules framed under the Act. Necessary remarks were made by the complainant in the Visit Book of the
dispensary. Thereafter, a complaint was filed against the appellant aft:~r obtainin.g >anction for his prosecution under s. 52(e)
-Of the Act read with s. 62 of !he Act and r. 23 (I) of lhc Rules.
The case was contested by the appellant on the ground that the
doctor's dispensary was not a "Commercial Establ

## Text

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DR. DEVENDRA M. SURTI
v.
STATE OF GUJARAT
May 2, 1968
[V. R.AMAsWAMI AND C. A. VAIDIALINGAM, JJ.J
Bombay Shops and Establishm.ents
Act, 79 of 1948, s. 2(4) Rul•·
23(1)-Doctor's dispensary
whether a
commercial
establishment
as.
defined in s. 2(4)-Non-nzaintenance of
register of employees
underr. 23(l)whether an off.ence.
The. appellant, a medical practitioner \Vho also maintained a disPen~·
sary, was prosecuted for non-maintenance of a register of employees as
required by r. 23 (I) of the rules made under the Bombay Shops arul'
Establishments Act, 1948. He contended that he could not be prosecuted'
because his dispenSary was not a 'commercial establishment' as defined'
ins. 2(4) of the Act.
He was acquitted by the trial magistrate but the
High Court. on appeal by the State oonvicted him.
In appeal by special'
leave to this Court,
HELD: Section. 2(4) has used words of very wide import
and'
grammatically it may even include· the consulting room where a doctor
examines his patients with the help of a solitary nurse. or attendant. But
the language of s. 2(4) must be
construed on the principle noscitur a
sociis. i.e. when two or more words susceptible of analogous meaning
are coupled together the words take their colour from each other and
the more general are restricted to a sense analogous to less
general.
[240 A-C]
The word~· 'commercial establishment' and 'profession' in s. 2(4)
are used along with the words 'business and trade' and must therefore be
restricted to activity analogous to business or trade.
Professional activity
cannot be treated as \Vithin the definition of s. 2 ( 4) unless it is. organised
as trade and business are organised i.e. the activity as systematicalJy or
habitually undertaken for rendering material services to the community
at large or a part of such community with the help of the employees and
such an activity generally involves cooperation of the employer and the
employees. [244 C-El
Tested in the light of these principles the appellant did not fall with-·
in the purview of the Act and his conviction was illegal. [244 E-F]
The National Union of Con1mercial Employees and Anr. v.
M. R.
Meher, Industrial Tribunal, Bombay, [1962] Supp, 3 S.C.R. i57, relied'
on..
Reed v. Ingham. 3 E.-B 889, Scales v. Pickering,
(1828) 4 Bing.
448, 452, 453, McKay v. Rutherfurd, 6 Moore P.C. 425, Commissioners
of Inland Revenue v. Maxse,
[1919] I
K.B.
647, 657
and
William
Esp/en, Son, and Swainston Ld. v. Inland Revenue Commissioners, [1919]'
2 KB. 731, referred to.
CRIMINAL APPELLATE
JURISDICTION :
Criminal
Appeal
No. 102 of 1966.
Appeal from the judgment and order dated February 14,
1966 of the Gujarat High Court in Criminal Appeal No. 208 of
1964.
.
236
SUPREME COl.'RT REPORTS
[ 1969] I S.C.R.
S. T. Desai, Arun H. Mehta and I. N. Shroff, for lhc appellant.
R. H. Dhebar and M. S. K. Sastri, for the rcsPondcnt.
,
The Judgment' of the Coun was delivered by
Ramaswami, J.-The question involved in this app:al is as
to whether a Doctor's dispensary is a "Commercial E.stablishment" within the meaning of the Bombay Shops and Establishments Act, 1948 (Bombay Act LXXIX of 1948), hereinafter
referred to as the 'Act'.
The case of the prosecution is that the appellant was a doctor
having his dispensary situated near Jakaria Masjid at Ahmcdabad.
The dispensary is registered as a 'Commercial Establishment'
under the provisions of the Act.
The complainant Shri Patel
visited the dispensary on June 13, 1963 at about 9.50 a.m. ;ind
found that though the dispensary was registered as 'Commercial
Establishment' under the Act, the Register produced before him
at the time of his visit was not maintained as
required under
Rule 23 ( 1) of the Rules framed under the Act. Necessary remarks were made by the complainant in the Visit Book of the
dispensary. Thereafter, a complaint was filed against the appellant aft:~r obtainin.g >anction for his prosecution under s. 52(e)
-Of the Act read with s. 62 of !he Act and r. 23 (I) of lhc Rules.
The case was contested by the appellant on the ground that the
doctor's dispensary was not a "Commercial Establishment" within the meaning of the Act and the provisions of the Act did not
therefore apply to his dispensary and the appellant had not committed any offence. The City Magistrate (First Court), (Munidpal), 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 al lowed by the High Court hy 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 Rs. 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
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the Act states that it is. an Act "to consolidate and amend
the
law relating to the regulation of co!1ditions of wo.rk a~d em ploymen1 in shops, commercial estabhshments,
rcstdent1a!
hotels,
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restaurants eating houses, theatre~. other places of pubhc amusement or e~tertainment and other establishment".
Section 2(4)
of the Act defines "Commercial establishment" as follows :
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DEYENDRA v. GUJARAT (Ramaswami, I.)
" 'Commercial establislunent' means an
establishment which carries on, any business, trade or profession
or any work in connection with, or incide.ntal or ancillary to, any business, trade or prof~ssion a~d in~ludes a
society registered under the Societies Reg1strat1on 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, shop, residential hotel, restaurant, eating house, theatre or other place of public
amusement or entertainment."
237
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Section 2 ( 8) states :
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" 'Establishment' means a shop, commercial establislunent, 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 purposes of this Act."
Section 2(6) ands. 2(7) read as follows :
" ( 6). 'Employee' means a person wholly or principally employed, whether directly or through any agency,
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and whether for wages or other consideration, in or in
connection with any establislunent; and includes
an
apprentice, but does not include a member of the employer's family."
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"(7) 'Employer' means a person owning or haying
. ultimate control over the affairs of an establishment."
Section 2(3) and 2(18) define the expression "closed'' and
"opened" as meaning "closed or opened for the service of any
customer, or for any business, of the establislunent or for work
by or with the help of any employee, of or conn~ted with th~
establislunent." Section 4 states :
"Notwithstanding anything contained in this Act
the provisions of this Act mentioned in the third colum~
of Schedule II shall not apply to the establislune.nts,
~mployees and other persons mentioned against them
m the second column of the said Schedule :
. Provide? tha~ the State Governm~nt may, by notification published m the Official Gazette, add to, omit or
alter any ?~ the ~ntries of the said Schedule subject to
sue~ cond1ttons, 1f any, as may be specified in such
notification and on the publication of such notification '
-
238.
SUPREME COURT REPORTS
[ 1969) 1 s.c.R.
the entries in either column of the said Schedule shall
be·deemed·to be amended accordingly."
Section 5 provides a5 follows :
"Cl). 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 establishmenls or a p<:rson or class of
persons to which or whom this Act or any provisions
thereof with such modi1icatioJs 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
(I),
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 cla~s 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 Regis'ration of establishments. Under
s. 7 (I) within the period specified the employer of every establishment is required to send to the Inspector of the local area
concerned a statement in the prescribed form together with necessary fees, containing the name of the employer and of the establishment, the category of the establishment, whether it
was
a
shop, commercial es'.ablishment.
residential
hotel,
restaurant.
eating house. theatre or other place of public amusement or entertainment and such other particulars.
Under s. 7 (2) a "registration certificate" is to be granted.
Chap!er Ill deals with
shops and commercial establishment. Sections I 0 and 11 provide
for the opening and closing hours of the shop. Section 13 deals
with the opening and closing hours of a commercial establishment. Sec•ion 14 provides for the maximum limit of the daily
and weekly hours of work of the employees in shops and commercial establishments.
Section 15 provides for rest interval. and
s. 17 provjdes for spread-over of hours of work in commercial
establishments. Section 18 provides for weekly holidays in shops
and commercial estabfahments. Chapter VI deals with employment of children, voung persons and women. and applies to all
establi.~hment-;. Seciion 32 provides that no child should be required
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DEVENDRA v. GUJARAT (Ramaswami, /.)
or allowed to work in any establishment, notwithstandiJ?g . that
such child is a member of the family of the employer; . Similarly,
s. 33 provides that no young person or women shall~ r~uire.d
or allowed to work whether as an employee or otherwise m any
establishment before 6 a.m. and after 7 p.m. notwithstanding that
such young person or woman is a member of the family of the
employer. Section 34 prescribes daily hours of work for young
persons.
The next Chapter, i.e. Ch. VII deals with leave pay
and payment of wages for such leave.
Section 38 provides for
the extension of the Payment of Wages Act by the State Government by a notification in the Gazette to all or any class. of establishments or to any class of employees to which the Act applies.
Similarly, s. 38A provides for the extension of the Workmen's.
Compensation Act, 1923.
Chapter VIII enacts provisions for
health and safety of the workers generally for all establishments.
Chapter IX enacts provisions for setting up of the machinery for
enforcement and inspection. Chapter X deals with offences and
penalties. Section 52 deals with contravention 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 argument 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
in~ention 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-founded and
must prevail.
'
Under s. 2 (8) of the Act an 'establishment' is defined as
meaning 'a shpp, commercial establishment,
residential
hotcl,
restaurant, eaung house. theatre, or other place of public amusement or entertainment to which this Act applies'. Section 2{24)
again defines a "Residential hotel", s. 2(25) a "Restaurant or
H . eating house" and s. 2(27) similarly defines a "Shop". See'ion
2(29) define9 a "Theatre". It is clear therefore that the legislature
has· taken care separately to define each one of the categories of
the 'establishments mentioned in s: 2(8) of the Act. It is -trUe
-
2.t 0
SUPRE~IE COURT RLPON.TS
(I <169] I s C.R.
that s. 2( 4) of the Act has used words of v~ry wide impon and
granunatically it may include ~vcn a consulling room where a
doctor ~xamines his patients 111th the· help of a solitary nurse or
attendant.
But, in our opin'on, in the matter of construing the
language of s. 2 ( 4) of the Act we must adopt the pnnciplc of
noscitur a sociis. This rule means that, when two or more words
which are susceptible of analoμous meaning are coupl<XI together
they arc understood to be used in their cognate sense. The words
take as it were their colour from each other, that is, the
more
general is restricted to a ~nsc analogous to a Jess general. "Asso-
·-ciatcd words take their meaning from one another under the
doctrine of noscirur a sociis, the philosophy of which is that the
meaning of a doubtful word may be ascertained by rcfcr~nce to
the meaning of words associated with it; such doctrine is broader
than the maxim Ejusdem Generis." (Words and Phrase»
Vol.
XIV, p. 207). For instance, in Reed v. /nf?ham(') it was
held
upon the principle of the maxim nosci111r a sociis, that a steam
tug of eighty-seven tons burden enga~ed in moving another vessel
was not a craft within the meanin.g of the
statute.
ARain.
in
Sea In 1'. PickainR(') the question wa<> what was the meaning of
the word "footway" when used in a private Act which cmpowcrd
a water company to break up the soil and
pavemcn~ of roads.
highways. footways, commons. streets, Janes. alleys, passages. and
public place>. provided they did not enter upon any privat..~ lands
w11hout the consent nf the owner.
It was contended that
this
authorised the company to break up the soil of a private field in
which there was a public footway, but it was
held
otherwise.
"Construing the word 'footway,'" said Best 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 11oscit11r a sociis." In the present case, certain
essen•ial features or attributes arc 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
w~dcr. 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 charac•er.
As to what exactly is meant by "Commerce" it may be difficult
to define but in an early case-Mc Kar v. Ruthe,.furd('). Lord
Campbell gave a useful definition:
"Commcrc~ is that activity
where a capital is laid out on anv work and a risk run o~ _rro!it
or loss: it is a commercial venture". It is true that the dcfimt1on of
Lord Campbell is the conventional definition attributed to trade
(t) .1f&B.:<S9.
(1)
6 t-.fr"lr)fC P. c. 425.
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DEVENDRA v. GUJARAT (Ramaswami, J.)
24ll
or commerce but it cannot be taken to be wholly valid for the
purpose of construing industrial legislation in a modern welfare
State. It is clear that the presence of the profit motive or the
investment of capital tradition associated to the notion of trade
and commerce cannot be given an undue importance in construing the definition of 'Commercial establishment' under s. 2 ( 4) of
the Act. In our opinion, the correct test of finding whether a professional activity falls within s. 2( 4) of the Act is whether the
activity is systematically and habitually undertaken for production
or distribution of goods or for rendering material service' to the
community or any part of the community with the help of employees in the manner of a trade or business in such an undertaking. It is also necessary in this connection to construe the·
word "profession" under s. 2( 4) of the Act.
In Commissioners
of Inland Revenue v. Maxse('), Scrutton L.J. stated 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 conm1odities. 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."
,
~e matter was again considered .in another case where the question was whether a company domg the work of naval architect
could be said to be can-ying on a profession in a naval architecture.
The case was William Esp/en, Son. and Swainston. Ld. v.
;
lnland Revenue Conunissinners(') where Rowlatt J. observed
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as follows· :
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". . . . but in my opinion the company is not cadymg 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."
(1) [1919] l K.B. 647, 657. ·
m
1191~12 K.ll. 111.
242
SUPREME COURT REPORTS
(1969] I S.C.R.
It is therefore clear that a professional activity . must be
an
activity c~ed 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
c~mmercial
character and unless the profession carried on by the appellant
also partakes of the charac:er of a commercial natme. the appellant· cannot fall within the ambit of s.
2(4) of the Act.
In
The National Union of Commercial Emp/cyees and another
v. M. I<. Meher, Industrial Trib1111a/, Bombay(') 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 In-
·dustrial Tribunal. In dealing with this question, Gajcndragadkar,
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 organisation of the undertaking involving the co-operation of capital and labour or
the employer and his employees, it obviously meant the
co-operation essential and necessary for the purpose of
rendering material service or for the purpose of production. It would be realised that the concept of industry
postulates partnership between capital and labour or
hetwcen the employer and his employees. It is under
this partnership that the employer contributes his capital and the employees their labour and the joint contribution of capital and Jabour leads directly to the production which the industry has in view. In other words,
the co-operation between capital and labour or between
the employer and his employees which is treated as a
working test in
determining whether
any
activity
amounts to an indus!ry, is the co-operation which is
directly involved in the production of goods or in the
rendering of service.
It cannot
be suggested
that
every form or aspect of human activity in which cap;~al
and labour cooperate or employer and employees assist
each other is an industry. The distinguishing feature of
an industry is that for the production of goods or for the
rendering of service, cooperation bctwce!l capital and
labour or between the employer and his employees
must be direct and must be essential."
Again. at page 166 of the Report Gajendragadkar, J. proceeds
10 state :
"Does a solicitor's firm satisfy that test?
Superficially considered, the solicitor's firm
is
no
doubt
(1) (1962) (l) S•inn. S.C.R. l 57.
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DEVENDRA v. GUJARAT (Ramaswami, !.)
243
organised as an industrial concern would be organised.
There are different categories of servants employed by
a firm, each category being assigned separate duties a_nd.
functions. But it must be remembered that ·1he 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
solicit~r
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 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 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 efficiently, accounts
have to be kei>t 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 •he accountant who keeps accounts any direct or essential nexus or connection with
the advice which it is the dutv 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 nrofessional service which the solicitor renders ·
to his client.
. . . . . . . . Looking at this question in a broad and
general wav. 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
H
'industrv' under s. 2(J). The very concept of the liberal
profes~ions has its own special and distinctive features
which do not readily.permit the inclusion of the liberal
professions into the four corners of industrial law.
244
SUPREME COURT REPORTS
[ 1969] I SC.R
The essential basis of an industri•1l dispute is that it is
a dispute arising between capital and labour in enterprises where capital and labour combine to
produce
commodities or to render service.
This essential basis
would be absent in the case of liberal professions.
A
person following a liberal profession does not carry on
his profession in any intelligible sense with the active
cooperation of his employees and the principal, if not
the sole, capital which he brings into his profession is
his special or peculiar
intellectual
and
educational
equipment. That is why on broad and general considerations which cannot be ignored, a liberal profession
like that of an attorney must, we think, be deemed to
hi.! ou1'-'idc
th~ dtiinitinn of 'industry'
und~r section
2(j) ."
Applying a si111ilar line or r~a~oning. \\-c ~r~ of opinion that the
dispensary of the appellant would fall within· the definition 0f
s. 2( 4) of the Act if the activity of the appellant is organised in
the manner in which a trade or business is generally organised
or arranged and if the activity is sy,tcnwtically or habitually
undertaken for rendering material services to the community at
large or a part of such community with the help of the employees
and if such an activity generally involves co-operation of •he
employer and the employees.
To put it differently, the manner
in which the activity in question is organised or arranged. the
condition of the co-operation between the
employer and
the
employees being necessary for its success and its object being to
render material service to the community can be
regarded
as
some of the features which render the carrying on of a professional acti~ity to fall within the ambit of s.
2( 4)
of the Act.
Tested in the light of these principles. we hold that the case of
the appellant does not fall within the purview of the Act and the
conviction of the appellant of the offence under s. 52 ( c i of the
Act r~d with s. 62 of the Act and r. 23 (I) of the
Rules
is
illegal.
For these reasons we allow this appeal ;rnd set aside the judgment of the Bombay Hi)!h Court dated February 14. 1966 conA
c
D
E
F
victing and sentencing the appellant.
G.
G.C.
Appeal a//mverl.
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