M. R. Hariharan Nair, J. :-

Will a school affiliated to the Central Board of Secondary Education come under the definition of 'Shop' or 'Commercial Establishment' ? This is the question arising for decision in this case.

Based on an NOC issued by the Government of Kerala and after getting due affiliation from the Central Board of Secondary Education, the petitioner Trust has been running the Sree Narayana Vidhya Bhavan, Chentrapinny. The petitioner Trust was served with Ext. P4 notice by the Assistant Labour Officer, Kodungallur, asking it to show cause why prosecution steps should not be taken for violation of the provisions of the Shops and Commercial Establishments Act and the provisions of the Minimum Wages Act. The explanation given by the petitioner to the said Officer did not satisfy him. The matter was pursued with Ext. P6 letter reminding the petitioner of the need to take immediate steps to get registration of its office under the Shops and Commercial Establishments Act and threatening legal steps under S. 29 of the Act and R. 14 of the Rules as also under S. 22A of the Minimum Wages Act. It is challenging these demands that the petitioner has approached this Court.

Learned counsel for the petitioner submits that a school can neither be a 'shop' nor a 'commercial establishment' and that the demands in Exts. P4 and P6 are totally unjustified. It is submitted that the only activity that is carried on in the school is imparting education to the pupils and presenting them for the C.B.S.E. examination and that no commercial activity is involved therein.

The learned Government Pleader, who was heard, submitted that though establishments in the State, whose activities in the school are mainly educational were exempted from the purview of the Act as per a Notification issued on 15.7.1950 (Ext. R(a)), the notification was superseded as per a fresh notification issued on 30.7.1981 (Ext. R(b)) and that as such the petitioner is bound to comply with the demand in Exts. P4 and P6. It is also pointed out that unless effective steps are imposed by the authorities against such schools, there is possibility of the teachers and the staff employed there being exploited and denied adequate salary. Yet another submission is that for admitting students in the school, besides heavy fees, donations are also demanded and obtained and that an element of commercial activity is involved in the running of such institutions.This Court has already held in various decisions that running of an office of a Chartered Accountant, office of an Advocate, office of a Church and the like are beyond the purview of the Shops and Commercial Establishments Act. The question posed in the present case, i.e. whether an Educational Institution come under the Shops and Commercial Establishments Act does not appear to be covered by any precedent. I, therefore, propose to deal with the matter at some length.

S. 2(8) of the Kerala Shops and Commercial Establishments Act, 1960 defines an 'establishment' as a 'shop' or 'commercial establishment'. A 'shop' is defined in S. 2(15) of the same Act as follows :

"2(15) :" Shop "means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store rooms, godowns or warehouses, whether in the same premises or otherwise, used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, 1948 (Central Act 63 of 1948)."

S. 2(4) of the Act defines commercial establishment as follows :

""Commercial establishment "means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any o