Distinction between trade or business and profession or occupation.

These petitions under Article 236 of the Constitution pray for the issue of certiorari to call for the records of the Commissioner of Labour and to quash his order dated 27th October, 1960, and the order of Additional Commissioner for Workmen’s Compensation dated the 26th April, 1961, respectively. The facts are briefly as below.

The petitioner in W.P. No. 602 of 1961 is a partner of a registered firm of Chartered Architects. The firm of the petitioner terminated the services of ore T.M. Lingam, an employee, after issuing due notice to him. Though the termination of his service was not objected to by that employee, he subsequently preferred an appeal under the Madras Shops and Establishments Act before the Commissioner for Workmen’s Compensation for payment of gratuity or other amounts, or, in the alternative, for his reinstatement. The petitioner objected to the proceedings contending that as the firm was carrying on a profession of Consulting Architects, it could not be classified as a shop or an establishment within the meaning of the Madras Shops and Establishments Act. Upon this the question came before the Commissioner of Labour under section 51 of that Act. The Commissioner held in the order impugned that the firm is not a commercial establishment but is a shop within the meaning of section 2 (16) of the Act. It is contended by the petitioner that the partners of the firm are carrying on the profession of Consulting Architects, the partners being members of the Royal Institute of British Architects as well as its Indian counterpart, the Indian Institute of Architects. It may be stated that the senior partner died and the present petitioner, Sri S.L. Chitale, is the sole surviving partner. According to the petitioner, the membership of the above institute is confined only to qualified architects who have to pass an examination conducted by the Royal Institute. Only persons with certain specified qualifications could become members of the Indian Institute of Architects. Such a person should possess certain specified qualifications evidenced by diplomas granted by an authorised body. It is further stated that as a member of these institutes, the petitioner is governed by certain exacting codes of professional conduct very much on the same lines as those governing Advocates and Auditors. A member is prevented from carrying on a business as auctioneers or estate agents or trading in materials used in connection with the building industry or to advertise or offer professional services or to accept a position in which his interest is in conflict with his professional duty. There are prescribed scales of professional charges. He is to function as an arbitrator between the building owner and the contractor, interpret the conditions of the contract between the two and generally to prepare plans, estimates and the like. His employment as an architect is terminable by his client. A long list of the duties which a Consulting Architect is bound to perform for his client are set out, which, according to the petitioner, are of highly technical nature. In these circumstances, the petitioner complains that the determination by the Commissioner that the office of a Consulting Architect is a shop wherein services are rendered to customers is wholly incorrect. It is claimed that an architect’s client cannot be termed a customer and that the professional services rendered by the architect cannot be equated to a person carrying on a commercial business in a shop. It is for these reasons that the petitioner claims that his status as a person carrying on a profession has to be equated to that of a Doctor or a Lawyer or an Auditor.

In Writ Petition No. 602 of 1961 the order impugned is that of the Commissioner or Labour made under section 51 of the Madras Shops and Establishments Act. This, provision empowers the Commissioner of Labour to decide the question whether all or any of the provisions of the Act apply to an establishment or to a pe