Decided on July 23,1979

R.J.OZA Respondents


D.P.DESAI - (1.) This is an appeal against an order of acquittal in respect of an offence punishable under the Bombay Shops and Establishments Act 1948 (the Act); and it raises the question whether the establishment of a company incorporated under the Companies Act 1956 or under the relevant prior Legislation carrying on the work of architect would be a commercial establishment as defined by sec. 2(4) of the Act so as to make it compulsory for it to get itself registered under sec. 7(1) read with sec. 7(2) of the Act ? The respondent limited company was prosecuted for contravention of secs. 7(9) and 51 of the Act and Rule 23 & (5) of the Rules framed under the Act. The substantial allegations in the complaint filed by the Shops Inspector of Baroda Municipal Corporation was that during his visit and enquiry on April 12 1977 he found that this was an establishment which was not registered under the Act and that it had not maintained the muster roll salary register and earned leave cards of the employees. The defence of the company was that it was not a commercial establishment because the company was carrying on profession of consulting engineers and preparing plans and designs for the clients which work was being done by the directors of the company by their personal skill intelligence and study. It was contended that the persons approaching the company for advice and guidance would get the advice of the directors of the company with the aid of personal skill intelligence and integrity of the directors. It was also contended that the Company is not a commercial establishment but it is a professional establishment established for the purpose of doing the work by personal skill and intelligence of the directors of the company. The learned Magistrate accepted this contention and acquitted the respondent. Hence this appeal.
(2.) For the purpose of this appeal the conclusion has to be based only on the material that the respondent is a limited company i.e. a body corporate which through its directors or with the aid of its directors who are individuals having personal skill and intelligence carries on the work of giving advice and guidance as consulting engineers to the clients and prepares plans and designs for them. We will therefore have to proceed on the basis that the work for the clients is done by the directors of the company by employing their personal skill intelligence and perseverance in engineering problems which include preparing plans and designs for the clients also.
(3.) If this activity was being carried on by an individual or a partnership perhaps in the absence of any other evidence a finding could have been given limited to the facts of the case that the individual or the partner of the partnership is a professional establishment and is not a commercial establishment as per the law settled by the Supreme Court in DR. DEVENDRA V. STATE 10 G.L.R. PAGE 156 15 We will refer to some of the important observations of the Supreme Court in that case bearing upon the question whether the activity carried on by a professional individual would amount to a commercial establishment. Before that however one important distinction in the present case as compared to Dr. Devendras case (supra) must be pointed. Here it is a corporate body which is incapable under the law to possess individual skill intelligence or perseverance and in respect of which the question whether the establishment of that corporate body is a commercial establishment has to be answered Having given my consideration to the problem I have come to the conclusion that the test laid down in Dr. Devendras case (supra) cannot be satisfied by a corporate body which through its directors individual skill and intelligence carries on a professional activity.;

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