IMPORTANT POINT
Company providing under a roof, the services of several different professionals like Engineers, Architects, Financial Consultants and Management Consultants, guidance and advice to other companies, corporations, boards and even local authorities on how best to manage their business for optimum utilization of plant, machinery and other infrastructure which is registered as a commercial establishment under the provisions of the Bombay Shops and Commercial Establishments Act which is covered by the ESI Act.

JUDGMENT

Rajendra Babu, J.-The appellant before us provides under a roof, the services of several different professionals like Engineers, Architects, Financial Consultants and Management Consultants, guidance and advice to other companies, corporations, boards and even local authorities on how best to manage their business for optimum utilization of plant, machinery and other infrastructure. The appellant is registered as "a commercial establishment" under the provisions of the Bombay Shops and Commercial Establishments Act. An application was filed by the applicant under Section 75 of the Employees State Insurance Act, 1948 [hereinafter referred to as the Act ] before the ESI Court, Pune for a declaration that the provisions of the said Act would not be applicable to the appellant, pursuant to a letter sent by the respondent stating that it was covered under the provisions of the Act w.e.f. 31.7.76. From that letter it was assumed that it was a shop for purposes of the applicability of the Act. The appellant started remitting contribution in respect of its employees as per the provisions of the Act. It was contended before the E.S.I. Court that the appellant has not carried on any process of manufacture and hence is not a factory much less work carried on by it on the premises could make it a shop.

2. The respondent pleaded that the appellant is engaged in the consultancy services in technical and marketing fields for a price and it is a shop. The E.S.I. Court after noticing that the appellant s establishment is a commercial establishment doing consultancy service in respect of marketing, management, technical and industrial establishment, observed that a shop does not include a premises where intellectual advice is tendered and, therefore, the appellant is not covered by the Act. To reach this conclusion, it relied upon the decision of the High Court in Dattatraya Advertising Co. Ltd. v. E.S.I. Corpn.1.

3. Against the order of the ESI Court the respondent filed an appeal under the Act in the High Court. The High Court, on the basis of ratio of the decision in ESI Corpn. v. R.K. Swamy and Ors.2, held that the word shop has acquired an expanded meaning to cover a premises where the advertising agency sells its expert services to a client to enable the client to launch an effective advertising campaign for his product, and in the same manner premises where consultancy service is provided is also a shop and appeal of respondents was allowed. Hence this appeal.

4. Shri Raju Ramchandran, learned senior Advocate for the appellant, relying upon a decision of this court in V. Sasidharan v. M/s. Peter and Karunakar & Ors.3, contended that the appellant s business premises cannot be a shop on the analogy that a lawyer s office where advice is given by lawyers is not a shop as held by this Court for purposes of Kerala Shops and Commercial Establishments Act, 1960. He emphasized that a place of work can not be regarded as a shop unless the activity is conducted is in a shop . He submitted that the expression shop means a premises which is used in connection with the trade or business, but not when professional service is rendered. He emphasised that the appellant does not carry on any trade or business and contended that the appellant s establishment can not be a shop . He also submitted that the decision of this Court in R.K. Swamy s case is in conflict with the decision in Sasidharan s case and therefore, the matter has to be considered by a larger bench.

5. Shri Vijay Kumar Mehta, learned counsel for the respondents, submitted that in the light of the several decisions of this Court where the expression shop having been given expanded meaning for purposes of the ESI Act, whereunder the expression shop is not defined the matter is no longer res integra Nor is shop defined as has been done in the Kerala Shops and Commercial Establishment Act. He, therefore, submitted that it is unnecessary to refer the matter t