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1973 Supreme(Bom) 137
BOMBAY HIGH COURT
J.L. Nain, J.
R.S. DESHPANDE AND ANOTHER - Appellant
Vs.
MUNICIPAL CORPORATION OF GREATER BOMBAY - Respondent
O.C.J. Miscellaneous P. No. 519 of 1968
Decided on : 09-04-1973
Insurance surveying, despite being a recognized profession, does not qualify as a liberal profession due to the absence of key attributes such as an organized professional body, code of conduct, and judicial remedy for exclusion from the profession.
Headnote:
SHOPS AND ESTABLISHMENTS ACT - COMMERCIAL ESTABLISHMENT - INSURANCE SURVEYORS - NOT A LIBERAL PROFESSION - REGISTRATION REQUIRED - [S. 2(4), 2(8), 7, 52(A), 64UM(1)(D), 43(4), 110H, INSURANCE ACT, 1938]
Fact of the Case:
Petitioners, a father-son duo, run an insurance surveyor firm. They challenged the requirement to register under the Shops and Establishments Act, 1948, arguing that insurance surveying is a liberal profession and thus exempt from registration.
Finding of the Court:
The court held that insurance surveying, while a recognized profession, does not meet the criteria of a liberal profession due to the absence of an organized professional body, code of conduct, and judicial remedy for exclusion from the profession. Therefore, the petitioners' firm falls within the definition of a "commercial establishment" and must register under the Shops and Establishments Act.
Issues: 1. Whether insurance surveying is a liberal profession exempt from registration under the Shops and Establishments Act. 2. Whether the petitioners' firm meets the criteria of a liberal profession.
Ratio Decidendi: 1. A liberal profession is characterized by intellectual or manual skill controlled by intellectual skill, a degree of intelligence and integrity, membership in an organized profession with high admission standards and disciplinary controls, a code of professional ethics, and a judicial remedy against exclusion from the profession. 2. Insurance surveying, while recognized as a profession, lacks an organized professional body, code of conduct, and judicial remedy for exclusion from the profession. Therefore, it does not meet the criteria of a liberal profession.
Final Decision: The petition was dismissed, and the petitioners were required to register their firm under the Shops and Establishments Act.
JUDGMENT :
1. The petitioner are father and son. Together they constitute a partnership firm carrying on the business of insurance surveyors in Bombay. The respondents are the Municipal Corporation of Greater Bombay who are charged with the administration of the Bombay Shops and Establishments Act, 1948 (hereinafter referred to as "the Shops Act"). The petitioners have been called upon to register themselves under S. 7 of the Shops Act as a commercial establishments. The present petition has been filed for a writ direction or order prohibiting the respondents from enforcing the provisions of the Shops Act against them. The petitioners allege that they carry on a professions and do not fall under the definition of "commercial establishments" in S. 2(4) of the Shops Act and are, therefore, not liable to register themselves under S. 7 of the said Act.
2. The petitioners state that their firm which is known as Desai and Deshpande was established in 1956 by petitioner No. 1 and one J. R. Desai. J. R. Desai is no longer a partner in the firm. Instead petitioner No. 2 who is the son of petitioner No. 1 and is Science and Law Graduate is a partner with his father in the firm of Desai and Deshpande. The petitioners state that they have one typist and a peon and that the work of these employees has no direct or essential nexus with the professionals work of the petitioners. They state that their professional work consists of conducting surveys to find out the extent and the cause of loss, damage or injury to goods in transport or to motor vehicles which have been insured against such risks. They state that this requires a high degree of personal skill, accuracy, observation, independence of judgment and integrity, and that their clients approach them with entire confidence in their skill, intelligence and integrity.
3. It might be mentioned that upto December 31, 1967 petitioners' firm was registered under the Shops Act. Thereafter a Division Bench of this Court delivered its judgment in the case of Merchant (N.E.) Vs. Bombay Municipal Corporation, holding that the office of Chartered Accountant with Articled Clerks and a salaried ordinary clerk was not a commercial establishment so as to attract the provisions of the Shops Act. On July 30, 1968 the petitioners wrote to the respondents stating that in view of the High Court judgment the Shops Act was not applicable to members of various professions and that they would not be registering themselves under the Shops Act. On August 12, 1968 the respondents wrote to the petitioners that they were of the considered opinion that the provisions of the Shops Act were applicable to the petitioners and called upon them to register themselves and stated that failing this the respondents would take legal action against the petitioners. On September 9, 1968 the present petition was filed.
4. One of the affidavits of the respondents in reply is of Kamruddin Mohammodbhoy, a Beat Officer under the Shops Act. He states that the business of insurance surveyors consists of surveying insured cars which have suffered damage and property insured against the risk of fire and goods lost or damaged in the course of transit by sea or otherwise. He states that insurance surveyors have to investigate the cause of the loss give a report as to the extent of the damage, the estimated value of the loss caused due to the damage, investigation as to the price of cars, spare parts, buildings and goods, to employ investigators, to go into the cause of the damage and to recover survey charges in each case. The respondents contended that the petitioners carry on business for gain and fall within the definition of a commercial establishment in S. 2(4) of the Shops Act. There is no dispute about the nature of the work done by an insurance surveyor. The only question to be determined is whether the petitioners fall within the definition of a "commercial establishment" under S. 2(4) of the Shop Act.
5. "Commercial establishment" is d
