N R MUKHERJEE Vs. ARNOLD HARTMAN JUST
HIGH COURT OF CALCUTTA
ARNOLD HARTMAN JUST
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Lahiri, C.J. -
(1.) Although we have heard very interesting arguments on the question whether the business of a Chartered Accountant is an industry within the meaning of Section 2(j) of the Industrial Disputes Act, we find it impossible to decide that question at the present stage. The first two appellants are two of the employees of a firm of Chartered Accountants named Messrs. Price Waterhouse Peat and Co., and the third appellant is a discharged employee of that firm. The firm of Messrs. Price Waterhouse Peat and Co. represented by Respondents 1, 2 and 3 will be hereinafter described as the firm. A dispute having arisen with regard to the claim for bonus made by the first two appellants and the discharge of the third appellant the Employees' Association of the firm took up the dispute as a collective dispute and at its instance the Government of the State of West Bengal by an order dated July 1, 1955 referred the following issues to the First Industrial Tribunal for adjudication: 1. Whether deduction of bonus granted to Sri N. R. Mukherjee and Sri S. Kanungo (appellants Nos. 1 and 2 respectively) is justified? To what relief are they entitled?
(2.) Is the discharge of Prantosh Bakshi (appellant No. 3) justified? What relief is he entitled to? 2. Before the Tribunal the firm filed two written statements challenging the competency of the Tribunal to adjudicate on the issues. In the first written statement the preliminary objection was based on the ground that the firm carries on professional work of Accountants without employment of capital as in trade or industry and consequently the employees of the firm are not workmen within the meaning of the Industrial Disputes Act. In the second written statement the firm raised an additional objection to the effect that the income of the firm is earned "solely" by the efforts of persons having specialised knowledge depending exclusively on their personal skill and merit. The appellants in their rejoinder stated that besides the work of auditing accounts of various commercial concerns, the firm represents' industrial and commercial concerns before the income-tax authorities and it also acts as Secretaries of different commercial concerns and as Liquidator for companies going into liquidation. The appellants further denied that the income of the firm was earned "solely" by the efforts of the partners of the firm and pleaded that for the diverse undertakings of the firm it maintained a large number of clerical subordinate staff to manage its undertaking and business. Upon the aforesaid pleadings two disputed' questions of fact arose before the Tribunal:
(a) Whether the professional income of the firm was earned "solely" by the efforts of the partners of the firm (b) Whether the firm carried on other businesses besides the business of Chartered Accountants.
(3.) The Tribunal without taking any evidence took upon itself the duty of deciding the question whether the business of a Chartered Accountant is an industry within the meaning of Section 2(j) of the Industrial Disputes Act and answered that issue in the affirmative. Against that order the firm filed an application for an appropriate writ upon the Tribunal for quashing its order and for prohibiting the Tribunal from exercising any jurisdiction over the issues referred to it. In their affidavit-in-opposition in this Court the appellants explained the manner in which the firm carries on its business and stated in paragraph 5 as follows :
"Audit clerks and qualified assistants are sent to the offices, mills and factories of about nine hundred industrial and commercial concerns for checking their books and records. These audit clerks and qualified assistants check the relevant books and records of the industrial and commercial concerns, vouch these records, prepare draft balance sheets, profit and loss accounts and schedules of assets and liabilities. Where, however, the draft balance sheets, profit and loss accounts and schedules of assets and liabilities are prepared by any of these industrial and commercial concerns these are checked by the said audit clerks and qualified assistants. Thereafter the audit clerks and qualified assistants put up these draft balance sheets, profit and loss accounts and schedules of assets and liabilities with their notes thereon to the partners. The latter, thereupon, examine them and give their approval after taking all explanations and elucidations from the said audit clerks and qualified assistants if necessary. The qualified assistants are all passed chartered accountants". They further allege that for the purpose of checking and auditing the books and records of the different commercial concerns, audit clerks and qualified assistants are sometimes sent to Pakistan. In paragraph 8 of the affidavit-in-opposition the appellants state that besides keeping of books and accounts and holding of meetings the firm also carries on business in purchasing and selling of securities regarding provident fund of the different commercial concerns and purchasing and selling of shares on behalf of companies having controls in United Kingdom. In its affidavit-in-reply in this Court the firm states in paragraph 5 that generally the various concerns which engage the services of the firm themselves prepare the draft balance sheets, profit and loss accounts and schedules of assets and liabilities and the appellants only check and report thereon and except in the case of a few honorary jobs the firm seldom, if ever, undertakes the work of preparation of balance sheets, profit and loss accounts and schedules of assets and liabilities. The firm further states that the main and most important part of the auditing work is performed by the partners of the firm themselves who as professional accountants report on the correctness of the accounts and undertake unlimited liability in this regard. In paragraph 8 of its affidavit-in-reply the firm states that the professional work of a firm of Chartered Accountants includes acting as Secretaries of various concerns and also as Liquidators of companies in liquidation. The firm denies that it purchases or sells any shares or securities for provident fund accounts of companies. Upon the aforesaid affidavits Sinha J. has held that the business of a Chartered Accountant simpliciter cannot be said to be an industry and has issued a writ of Certiorari quashing the order of the Tribunal, but has directed the Tribunal to determine upon evidence the question whether the firm carries on businesses unconnected with the business of Chartered Accountant. Against that order of Sinha, J. the appellants have brought this appeal and the firm has filed a cross-objection against the order directing the Tribunal to determine the question upon evidence.;
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