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1962 Supreme(Bom) 69
IN THE HIGH COURT OF BOMBAY
N. L. Abhyankar and L. M. Paranjpe JJ.
SAKHARAM NARAYAN KHERDEKAR,
ADVOCATE, NAGPUR - Petitioner.
v.
CITY OF NAGPUR CORPORATION, NAGPUR and others . - Respondents.
Advocate Appeared
For petitioner-M.N. Phadke, S. W. Dhabe, H, W. Dhabe, M.N. Ohandurkar, P.G. Pazsikar and M. L. Vaidya.
For respondents Nos. 1 and 2-0. S. Dharmadhikari.
For respondent No. 3-S. M. Hajarnavis, Asst. Gavt. Pleader.
Headnote:
Bombay Shops and Establishments Act, 1948 - Section 7 - Registration of establishments - Advocate's office - Whether an establishment - Held, No.
Fact of the Case:
The petitioner, an Advocate, received a letter from the Market Superintendent of the respondent Corporation, intimating that the Bombay Shops and Establishments Act, 1948, had been made applicable to Vidarbha region with effect from 1-10-1961, and forwarding 25 forms which could be filled by members of the High Court Bar Association. The petitioner contended that he was not an employer within the meaning of section 2 (7) of the Act and was not therefore required to register under section 7 of the Act. The reason given was that the petitioner was not a person either owning or having an ultimate control over a shop. The petitioner also contended that the definition of "commercial establishment" in section 2 (4) of the Act was vague and undefined, if not unintelligible. The respondents contended that the petitioner's office was an establishment within the meaning of section 2 (8) of the Act, and that the petitioner was an employer within the meaning of section 2 (7) of the Act, as he employed a clerk.
Finding of the Court:
The Court held that the petitioner was not an employer within the meaning of section 2 (7) of the Act and was not therefore required to register under section 7 of the Act. The Court also held that the definition of "commercial establishment" in section 2 (4) of the Act was not vague and undefined, and that the petitioner's office was not an establishment within the meaning of section 2 (8) of the Act.
Issues: Whether the petitioner was an employer within the meaning of section 2 (7) of the Act.
Ratio Decidendi: The Court held that the petitioner was not an employer within the meaning of section 2 (7) of the Act because he was not a person either owning or having an ultimate control over a shop. The Court also held that the definition of "commercial establishment" in section 2 (4) of the Act was not vague and undefined, and that the petitioner's office was not an establishment within the meaning of section 2 (8) of the Act because the petitioner's profession was not a commercial activity.
Final Decision: The petition was allowed and the Rule was made absolute, but there was no order as to costs.
ABHYANKAR J.-This petition raises an interesting and an important point of interpretation, under the Bombay Shops and Establishments Act, 1948. This Act has been made applicable to Vidarbha region by the Extension and Amendment Act, 1960, applying the provisions of this Act all over the State of Maharashtra.
2. The petitioner, Shri S. N. Kherdekar, is an Advocate of this Court, and also the elected Secretary of the High Court Bar Association at Nagpur. The Association is a body registered under the Societies Registration Act. The petitioner has been practicing for the last 27 years in the High court and also enrolled under the Legal. Practitioners Act and now under the new Advocates Act, 1961.
3. The petitioner has stated that he is practicing at his own residence and does not maintain an establishment. He carries on professi6n by receiving briefs at his house. He has a clerk who looks after the court work. The clerk is a registered clerk under the rules of the High Court. The petitioner is governed by the Legal Practitioners Act and the Advocates Act. The petitioner, it is claimed, is also an officer of the Court, and is not running any firm or business, or organizing any commercial establishment.
4. The petitioner in his capacity as Secretary of the High Court Bar Association, received from the Market Superintendent of respondent No. 1 Corporation of the City of Nagpur a letter dated 23-1-1962. In this letter the Market Superintendent intimated to the petitioner that the Bombay Shops and Establishments Act, 1948, has been made applicable to Vidarbha Region with effect from 1-10-1961. He therefore forwarded 25 forms which could be ~ by members of the High Court Bar Association. He also stated that any further requirement may be referred to the Market Superintendent. A copy of the form which was forwarded by the Market Superintendent is to be found at page 10 as Annexure B to the petition. This form is prescribed according
to rule 5 of the Rules framed by the State Government under the Bombay, Shop “B" and Establishments Act, 1948, hereafter referred to as the Shops Aot.Ch form prescribed by rule 5 is to be used by all employers as defined in the Act" The employers are required under section 7 of the Shops Act to send to the Inspector of the local area concerned a statement in this form together with prescribed fees. The information that is to be given in the form is with respect to the name of the employer and the manager, if any, the postal address of the establishment, the name of the establishment, if any, the category of the establishment, namely, whether it is a shop or commercial establishment or a residential hotel, restaurant, eating house, theatre or any other place of public amusement or entertainment, and other particulars that may be prescribed. On receipt of the form the Inspector has to be satisfied about the correctness of title statement, and then the establishment is to be registered in the register of establishment as prescribed by the rules. On such registration a registration certificate is granted to the employer which is valid till the end of the, year One of the consequences of non-registration and not sending the forms as required by section 7 is provided in section 52 (a) of the Shops Act. Under that (clause if an employer fails to send to the Inspector a statement during the period specified in section 7, then the employer and the :manager are liable to be prosecuted and on conviction each will be punishable with a fine which shall not be less than Rs. 25 and which may extend to Rs. 250, and if the contravene action under section 7 is continued after the expiry of the tenth day after conviction, the employer shall be liable on further conviction to be punished with fine which may extend to Re. 10 for each day on which the contravention is se continued.
5. The petitioner thus being exposed to the risk of a prosecution, if he were not to register himself as an employer of an establishment under
