LawDistill
Supreme Court of India

DR. DEVENDRA M. SURTI vs STATE OF GUJARAT on 2 May, 1968

Cites 2 provisionsCites 2 judgmentsCited by 3
Official PDFBench Vaidyanathier Ramaswami, Chittur Anantakrishna Iyer Vaidyialingam
PETITIONER:
DR. DEVENDRA M. SURTI
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT:
02/05/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
VAIDYIALINGAM, C.A.
CITATION:
1969 AIR 63 1969 SCR (1) 235
ACT:
Bombay Shops and Establishments. Act, 79 of 1948, s. 2(4)
Rule, 23(1)-Doctor’s dispensary whether a commercial
establishment as defined in s. 2(4)-Non-maintenance of
register of employees under r. 23(1)whether an offence.
HEADNOTE:
The appellant, a medical practitioner who also maintained a
dispensary was prosecuted for non-maintenance of a register
of employees as required by r. 23(1) of the rules made under
the Bombay Shops and Establishments Act, 1948. He contended
that he could not be prosecuted because his dispensary was
not a ’commercial establishment’ as defined in s. 2(4) of
the Act. He was acquitted by the trial magistrate but the
High Court, on appeal by the State convicted him. In appeal
by special leave to this Court,
HELD : Section 2(4) has used words of very wide import and’
grammatically it may even include the consulting room where
a doctor examines his patients with the help of a solitary
nurse or attendant. But the language of s. 2(4) must be

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 102 of 1966. Appeal from the judgment and order dated February 14, 1966 of the Gujarat High Court in Criminal Appeal No. 208 of’ 1964. 5. Parliament was aware of the fact that employees in establishments other than those to which, the Act applies were getting bonus under adjudication provided by the Industrial Disputes Act and other similar Acts. If it intended to deprive them of such bonus surely it would have expressed so in the Act; 6. Sec. 39 in clear terms saves the right to claim bonus under the Industrial Disputes Act or any corresponding law by providing that the provisions of this Act shall be in addition to and not in derogation of the provisions of those Acts. It is true that the preamble states that the Act is to provide for payment of bonus to persons employed in certain establishments and sec. 1(3) provides that the Act is to apply, save as otherwise provided therein, to factories and every other establishments in which 20 or more persons are employed. Sub-sec. (4) of sec. 1 also provides that the Act is to have effect in relation to such factories and establishments from the- accounting year commencing on any day in 1964 and every subsequent accounting year. But these provisions do not, for that reason, necessarily mean that the Act was not intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus and the persons to whom it should apply. Even where an Act deals comprehensively with a particular subject-matter, the Legislature can surely provide that it shall apply to particular persons or groups of persons or to specified institutions only. Therefore, the fact that the preamble states that the Act shall apply to certain establishments does not necessarily mean that it was not intended to be a comprehensive provision dealing with the subject-matter of bonus. While dealing with the subject-matter of bonus the Legislature can lay down as a matter of policy that it will exclude from its application certain types of establishments and also provide for exemption of certain other types of establishments even though such establishments would otherwise fall within the scope of the Act. The exclusion of establishments where less than 20 persons are employed in sec. 1(3) therefore is not a criterion suggesting that Parliament has not dealt with the subject-matter of bonus comprehensively in the Act. As already seen, there was until the enactment of this Act no statute under which payment of bonus was a statutory obligation on the part of ,in employer or a statutory right therefore of an employee. Under the Industrial Disputes Act, 1947 and other corresponding Acts, workmen of industrial establishments as defined therein could raise an industrial dispute and demand by way of bonus a proportionate share in profits and Industrial Tribunals could under those Acts adjudicate such disputes and oblige the employers to pay bonus on the principle that both capital and S. T. Desai, Arun H. Mehta and I. N. Shroff, for the appellant. R. H. Dhebar and M. S. K. Sastri, for the respondent. The Judgment of the Court was delivered by Ramaswami, J.-The question involved in this appeal is as to whether a Doctor’s dispensary is, a "Commercial Establishment" within the meaning of the Bombay Shops and Establishments Act, 1948 (Bombay Act LXXIX of 1948), hereinafter referred to as the ’Act’. The case of the prosecution is that the appellant was a doctor having his, dispensary situated near Jakaria Masjid at Ahmedabad. The dispensary is registered as a ’Commercial Establishment’ under the provisions of the, Act. The complainant Shri Pale visited the dispensary on Juno 13, 1963 at about 9.50 a.m and found that though the dispensary was registered as ’Commercial Establishment’ under the Act, the Register produced before him, ;at the time of his visit was not maintained as required -tinder Rule 23(1) of the Rules framed under the Art. Necessary remarks were made by the complainant in the Visit Book of the dispensary. Thereafter, a complaint was filed against the appellant after obtaining sanction for his prosecution under s. 52(e) of the Act read with s. 62 of the Act and r. 23(1) of the Rules. The ease was contested by the appellant on the ground that the doctor’s dispensary was not a "Commercial Establishment" within the meaning of the Act and the provisions of the Act did got therefore apply to his dispensary and the appellant bad not committed any offence. The City Magistrate (First Court), (Munjipal), Ahmedabad held that the appellant was not guilty and acquitted him. The State of Gujarat took the matter in appeal TO the High Court of Gujarat in Criminal Appeal No. 208 of 1964. The appeal was allowed by the High Court by its judgment dated February 14, 1966 and the appellant was convicted for an offence under s. 52(e) read with s. 62 of the Act and r. 23(1) of the Rules and sentenced to pay a fine of Rs. 25, in default to undergo, simple imprisonment for a week. This appeal is brought by certificate from the judgment of the High Court. Before considering the rival contentions of the parties it is necessary to examine the scheme of the Act. The preamble to the Act states that it is an Act "to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments, residential hotels. restaurants, eating houses, theatres, other places of public amusement or entertainment and other establishment". Section 2(4) ,of the Act defined "Commercial establishment" as follows:

"’Commercial establishment’ means an

establishment which carries on, any business,

trade or profession or any work in connection

with, or incidental or ancillary to, any

business, trade or profession and includes a

society registered under the Societies

Registration Act, 1860, and a charitable or

other trust, whether registered or not, which

carries on whether for purposes of gain or

not, any business, trade or profession or work

in connection with or incidental or ancillary

thereto but does not include a factory, shop,

residential hotel, restaurant, eating house,

theatre or other place of public amusement or

entertainment."

Section 2(8) states :

"’Establishment’ means a shop, commercial

establishment, residential hotel, restaurant,

eating house,theatre, or, other place of

public amusement or entertainment to which

this Act applies and includes such other

establishment as the State Government, may, by

notification in the Official Gazette, declare

to be an establishment for the purposes of

this Act."

Section 2(6) and s. 2(7) read as follows

"(6). ’Employee’ means a person wholly or

principally employed, whether directly or

through any agency, and whether for wages or

other consideration, in or in connection with

any establishment; and includes an apprentice,

but does not include a member of the em-

ployer’s family."

"(7) ’Employer’ means a person owning or

having ultimate control over the affairs of an

establishment."

Section 2(3) and 2(18) define the expression

"closed" an(] "opened" as meaning "closed or

opened for the service of any ,customer, or

for any business, of the establishment, or for

work, by or with the help of any employee, of

or connected with the establishment." Section

4 states :

"Notwithstanding anything contained in this

Act, the provisions of this Act mentioned in

the third column of Schedule It shall not

apply to the establishments, employees and

other persons mentioned against them in the

second column of the said Schedule

Provided that the State Government may, by

notification published in the Official

Gazette, add to, omit or alter any of the

entries of the said Schedule subject to such

conditions, if any, as may be specified in

such notification and on the publication of

such notification,

the entries in either column of the said

Schedule shall be deemed to be amended

accordingly."

Section 5 provides as follows :

(1 ). Notwithstanding anything contained in

this Act, the State Government may, by

notification in the Official Gazette, declare

any establishment or class of establishments

to which, or any person or class of persons to

whom, this Act or any of the provisions

thereof does not for the time being apply, to

be an establishment or class of establishments

or a person or class of persons to which or

whom this Act or any provisions thereof with

such modifications or adaptations as may in

the opinion of the State Government be

necessary shall apply from such date, as may

be specified in the notification.

(2) On such declaration under sub-section

(1), any such establishment or class of

establishments or such person or class of

persons shall be deemed to be an establishment

or class of establishments to which, or to be

an employee or class of employees to whom,

this Act applies and all or any of the

provisions of this Act with such adaptation or

modification as may be specified in such

declaration, shall apply to such establishment

or class of establishments or to such employee

or class of employees." Chapter II deals with the Registration of establishments. Under S. 7(1) within the period specified the employer of every establishment is required to send to the Inspector of the local area concerned a statement in the prescribed form together with necessary fees, containing the name of the employer and of the establishment, the category of the establishment, whether it was a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment and such other particulars. Under S. 7(2) a "registration certificate" is to be granted. Chapter III deals with shops and commercial establishment. Sections IO and II provide for the opening and closing hours of the shop. Section 13 deals with the opening and closing hours of a commercial establishment. Section 14 provides for the maximum limit of the daily and weekly hours of work of the employees in shops and commercial establishments. Section 15 provides for rest interval, and S. 17 provides for spread-over of hours of work in commercial establishments. Section 18 provides for weekly holidays in shops and commercial establishments. Chapter VI deals with employment of children, young persons and women, and applies to all establishments. Section 32 provides that no child should be required or allowed to work in any establishment, notwithstanding that such child is a member of the family of the employer. Similarly, s. 33 provides that no young person or women shall be required or allowed to work whether as an employee or otherwise in any establishment before 6 a.m. and after 7 p.m. notwithstanding that such young person or woman is a member of the family of the employer. Section 34 prescribes daily hours of work for young persons. The next Chapter, i.e. Ch. VII deals with leave pay and payment of wages for such leave. Section 38 provides for the extension of the Payment of Wages Act by the State Government by a notification in the Gazette to all or any class of establishments or to any class of employees to which the Act applies. Similarly, s. 38A provides for the extension of the Workmen’s Compensation Act, 1923. Chapter VIII enacts provisions for health and safety of the workers generally for all establishments. Chapter IX enacts provisions for setting up of the machinery for enforcement and inspection. Chapter X deals with offences and penalties. Section 52 deals with contravention of certain provisions and cl. (e) of that section provides for the penalty if the employer contravenes the provisions of s. 62 by not maintaining the prescribed register. Section 62 provides for maintenance of registers and records and display of notices as may be prescribed by Rules. Section 63 deals with wages for overtime work. On behalf of the appellant Mr. Mehta put forward the argument that under s. 2(4) of the Act which defines ’Commercial’ Establishment’ as an establishment which carries on any business, trade or profession, the emphasis was not on the place from which the trading or professional activity was carried on but the emphasis was really on the nature of the activity which must be a commercial activity. In other words, the contention was that the intention of the legislature in enacting s. 2(4) was to include only those professions which are carried on in a commercial manner’ It was therefore contended that in the present case the dispensary of the appellant does not fall within the definition of ’Commercial Establishment’ under s. 2(4) of the Act. In our opinion, the argument addressed on behalf of the appellant is well-founded and must prevail. Under s. 2(8) of the Act an ’establishment’ is defined as meaning ’a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment to which this Act applies’. Section 2(24) again defines a "Residential hotel", s. 2(25) a "Restaurant or eating house" and s. 2(27) similarly defines a "Shop". Section 2(29) defines a "Theatre". It is clear therefore that the legislature has taken care separately to define each one of the categories of ’the establishments mentioned in s. 2(8) of the Act. It is, true: that s. 2(4) of the Act has used words of very wide import and grammatically it may include even a consulting room where a doctor examines his patients with the help of a solitary nurse or attendant. But, in our opinion, in the matter of construing the language of s. 2(4) of the Act we must adopt the principle of noscitur a sociis. This rule, means that, when two or more words which are susceptible of analogous meaning are coupled to-ether they are understood to be used in their cognate sense. The words take as it were their colour from each other, that is, the more general is restricted to a, sense analogous to, a less general. "Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broiderthan the maximum Ejusdein Generis." (Words and Phrases. Vol. XIV, p. 207). For instance, in Reed v. Ingham(1) it was upon the principle of the maxin nosscitur a sociis, that a steam tug of eighty-seven tons burden engaged in moving another vessel was not a craft within the meaning of the statute. Again, in Scales v. Pickering(-) the question was what was the meaning of the word "footway" when used in a private Act which empowered a water company to break up the, soil and pavement of roads. highways, footways, commons, streets, lanes, alleys’, passages and public places. provided they did not enter upon any private lands without the consent of the owner. It was contend that this authorised the company to break up the soil of a private field in which there was a public footway, but it was held otherwise. "Construing the word ’footway,’ " said Best C. J. "from the company in which it is found the legislature appears to have meant those paved footways in large towns which are too narrow to admit of horses and carriages." And Park J. added : "The word ’footway’ here noscitur a sociis." In the present case, certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition of s. 2(4’) of the Act, though. their normal import may be much wider. We are therefore of opinion that the professional establishment of a doctor cannot come within the definition of s. 2(4) of the Act unless the activity carried on was also commercial in character. As to what exactly is meant by "Commerce" it may be difficult to define but in an early case-McKav v. Rutherfurd(3), Lord Camp-bell gave a useful definition : "Commerce is that activity where a capital is laid out on any work and a risk run of profit or loss; it is a commercial venture". It is true that the definition of Lord Campbell is the conventional definition attributed to trade (1) 3 E. & B. 889. (2) (1828)4Sup.448,45.453. (3) 6 M-c P. C. 425. or commerce but it cannot be taken to be wholly valid for the purpose of construing industrial legislation in a modem welfare State. It is clear that the presence of the profit motive or the investment of capital tradition associated to the notion of trade and commerce cannot be given an undue importance in construing the definition of ’Commercial establishment’ under s. 2(4) of the Act. In our opinion, the correct test of finding whether a professional activity falls within s. 2(4) of the Act is whether the activity is systematically and habitually undertaken for production or distribution of goods or for rendering material services to the community or any part of the community with the help of employees in the manner of a trade or business in such an undertaking. It is also necessary in this connection to construe the word "profession" under s. 2(4) of the Act. In Commissioner’s of Inland Revenue v. Maxse(1), Scrutton L.J. stated as follows

"I am very reluctant finally to propound a

comprehensive definition. A set of facts not

present to the mind of the judicial

propounder, and not raised in the case before

him, may immediately arise to confound his

proposition. But it seems to me as at present

advised that a ’profession’ in the present use

of language involves the idea of an Occupation

requiring either purely intellectual skill, or

of manual skill controlled, as in painting and

sculpture, or surgery, by the intellectual

skill of the, operator, as distinguished from

an occupation which IS substantially the

production or sale or arrangements for the

production or sale of commodities. The line

of demarcation may vary from time to time.

The word ’profession’ used to be confined to

the three learned professions, the Church,

Medicine and Law. IL has now, I think, a

wider meaning." The matter was again considered in another case where the question was whether a company doing the work of naval architect could be said to be carrying on a profession in a naval architecture. The case was William Esplen, Son, and Swainston, Ld. v. Inland Revenue Commissioner’s(2) where Rowlatt J. observed as follows :

"...... but :in my opinion the company is not

carry in,-- on the profession of naval

architects within the meaning of the section,

because for this purpose it is of the essence

of a profession that the profits should be

dependent mainly upon the personal

qualifications of the person by who m it is

carried on, and that can only be an

individual."

(1) [1919] 1 K.B. 647, 657.

(2) [1919]2K.B731

It is therefore clear that a professional

activity must be an -activity carried on by an

individual by his personal skill and

intelligence. There is a fundamental

distinction therefore between a professional

activity and an activity of a commercial

character and unless the profession carried on

by the appellant also partakes of the

character of a commercial nature, the appel-

lant cannot fall within the ambit of S. 2 (4)

of the Act. In The National Union of

Commercial Employees and another v. M. R.

Meher, Industrial Tribunal, Bombay(1) it was

held by this Court that the work of solicitors

is not an industry within the meaning of s.

2(J) of the Industrial Disputes Act, 1947 and

therefore any dispute raised by the employees

of the solicitors against them cannot be made

the subject of reference to the Industrial

Tribunal. In dealing with this question,

Gajendragadkar, J., speaking for the Court,

observed as follows at page 163 of ,the Report

"When in the Hospital case ((1960) 2 S.C.R.

866) this Court referred to the Organisation

of the undertaking involving the co-operation

of capital and labour or the employer and his

employees, it obviously meant the co-operation

essential and necessary for the purpose of

rendering material service or for the purpose

of production. It would be realised that the

concept of -industry postulates partnership

between capital and labour or between the

employer and his employees. It is under this

partnership that the employer contributes his

capital and the employees their labour and the

joint contribution of capital and labour leads

directly to the production which the industry

has in view. In other words, the co-operation

between capital and labour or between -the

employer and his employees which is treated as

a working test in determining whether any

activity amounts to an industry, is the co-

operation which is directly involved

in the

production of goods or in the rendering of

service. It cannot be suggested that every

form or aspect of human activity in which

capital and labour cooperate or employer and

employees assist each other is an industry.

The distinguishing feature of an industry is

that for the production of goods or for the

rendering of service, cooperation between

capital and labour or between the employer and

his employees must be direct and must be

essential."

Again, at page 166 of the Report

Gajendragadkar, J. proceeds

’to state

" Does a solicitor’s firm satisfy that test ?

Serficially considered, the solicitor’s firm

is no doubt

(1) [1962](3)Supp.S.C.R.157.

organised as an industrial concern would be

organised. There are different categories of

servants employed by a firm, each category

being assigned separate duties and functions.

But it must be remembered that the service

rendered by a solicitor functioning either

individually or working together with partners

is service which is essentially individual; it

depends upon the professional equipment,

knowledge and efficiency of the solicitor

concerned. Subsidiary work which is purely of

an incidental type and which is intended to

assist the solicitor in doing his job has no

direct relation to the professional service

ultimately rendered by the solicitor. For his

own convenience, a solicitor may employ a

clerk because a clerk would type his opinion;

for his convenience, a solicitor may employ

menial servant to keep his chamber clean and

in order; and it is likely that the number of

clerks may be large if the concern is pros-

perous and so would be the number of menial

servants. but the work done either by the

typist or the stenographer or by the menial

servant or other employees in a solicitor’s

firm is not directly concerned with the

service which the solicitor renders to his

client and cannot, therefore, be said to

satisfy the test of cooperation between the

employer and the employees which is relevant

to the -purpose. There can be no doubt that

for carrying on the work of a solicitor

effiecently, accounts have to be kept and

correspondence carried on and this work would

need the employment of clerks and accountants.

But has the work of the clerk who types

correspondence or that of the accountant who

keeps account,; any direct or essential nexus

or connection with the advice which it is the

duty of the solicitor to give to his client?

The answer to this question must, in our

opinion, be in the negative. There is, no

doubt, a kind of cooperation between the

solicitor and his employees, but that

cooperation has, no direct or immediate

relation to the professional service which the

solicitor renders to his client.

........ Looking at this question in a broad

and general way, it is not easy to conceive

that a liberal Profession like that of an

attorney could have been intended by the

Legislature to fall within the definition of

’industry’ under s. 2 (J). The very concent

of the liberal professions has its own special

and distinctive features which do not readily

permit the inclusion of the liberal

professions into the four corners of

industrial law.

The essential basis of an industrial dispute

is that it is a dispute arising between

capital and labour in enterprises where

capital and labour combine to produce

commodities or to render service. This

essential basis would be absent in the case of

liberal professions. A person following a

liberal profession does not carry on his

profession in any intelligible sense with the

active cooperation of his employees and the

principal, if not the sole, capital which he

brings into his profession is his special or

peculiar intellectual and educational

equipment. That is why on broad and general

considerations which cannot be ignored, a

liberal profession like that of an attorney

must, we think, be deemed to be outside the

definition of ’Industry’ under section 2(1)." Applying a similar line of reasoning we are of opinion that the dispensary of the appellant would fall within the definition of S. 2(4) of the Act if the activity of the appellant is organised in the manner in which a trade or business is generally organised or arranged and if the activity is systematically or habitually undertaken for rendering material services to the community at large or a part of such community with the help of the employees and if such an activity generally involves co-operation of the employer and the employees. To put it differently, the manner in which the activity in question is organised or arranged, the condition of the co-operation between the employer and the employees being necessary for its success and its object being to render material service to the community can be regarded as some of the features which render the carrying on of a professional activity to fall within the ambit of S. 2(4) of the Act. Tested in the light of these principles, we hold that the case of the appellant does not fall within the purview of the Act and the conviction of the appellant of the offence under S. 52(e) of the Act read with S. 62 of the Act and r. 23(1) of the Rules is illegal. For these reasons we allow this appeal and set aside the judgment of the Bombay High Court dated February 14, 1966 convicting and sentencing, the appellant. G.C. Appeal allowed. L10Sup.C.1/68 --2,500- 20-8-69Sec.VI- GIPF.