The Payment of Gratuity Act, 1972 is not applicable to associations of legal practitioners without a profit motive or commercial venture, as they do not fall within the definition of 'shop' or 'establishment' under the West Bengal Shops and Establishments Act, 1963.

SATYABRATA SINGH, HRISHIKESH BANERJI

( 1 ) LEAVE in terms of prayer (a) is granted. The question which arises for consideration in this appeal is as to whether the Payment of Gratuity Act, 1972 is applicable in relation to Bar Library Club. The Payment of Gratuity Act, 1972 applies to (a) every factory, mine, oilfield, plantation, port and railway company (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months and (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. Clauses (a) and (d) of the said provisions admittedly can have no application in the instant case.

( 2 ) THE question raised herein is whether the respondent is a 'shop1 or an 'establishment' within the meaning of the provisions of West Bengal Shops and Establishments Act, 1963. The word 'shop' has been defined in Section 2 Sub-section (13) of the said Act which reads thus-'13. "shop" The basic ingredients of a Shop under the Act are: (1) Must have a premises: (a) offices, store-rooms, godowns etc. whether on the same premises or not but if used in connection with sale or storage for sale; (2) Sale of services or commodities or articles to Customers or if trade and business carried on; (3) The State Government, may, by notification declare any premises as "shop" under the Act. '

( 3 ) THE word "establishment" has been defined in Section 2 Sub- section (5) of the West Bengal Shops and Establishments Act, 1963 which reads thus-' (5) "establishment" means a commercial establishment or an establishment for public entertainment or amusement;'

( 4 ) IT is not in dispute that the Bar Library Club is merely an association of a section of the legal practitioners practising in this Court. The said Association has neither been set up with a profit motive nor has been set up for commercial venture. A bare perusal of the definition of 'shops' and 'establishments' as quoted (supra) would clearly demonstrate that for the purpose of attracting the aforementioned provisions certain trade and business activities must be carried on. If the profession of a legal practitioner cannot come within the purview of the definition of the aforementioned provisions we fail to understand as to how an Association of the legal practitioners would be. In fact earlier an attempt had been made to include the chambers of the legal practitioners within the purview of the definition of the commercial establishment. The vires of the said provisions came up for consideration before this Court in Dipti Kumar Basu v. Chief Inspector, Shops and Establishments and Anr. , 90 CWN 353, and this Court had declared the said provisions as ultra vires. A similar matter was considered by the Bombay High Court in Narendra Keshrichand Faladi and Anr. v. State of Maharashtra, reported in 1985-II-LLJ-24, wherein also it was held that the establishment of a legal practitioner does not come within the purview of the word 'establishment' under the Bombay Shops and Establishments Act, Yet again the same principles have been reiterated in Dorab Pirojsha Signaporia v. The President and Appellate Authority of the Industrial Tribunal, Bombay, reported in 1986-II-LLJ 501. The matter also stands covered by a decision of the Apex Court in V. Sashidharan v. Peter Karunakar.

( 5 ) MR. Sarkar, learned Counsel appearing on behalf of the petitioner however submits that the learned Trial Judge while allowing the writ application filed by the respondent herein committed an error in entertaining the application in view of the fact that an appeal was maintainable against the order passed by the Controlling Authority under the provisions of the Payment of Gratuity Act. It ma

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