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Bishambar Nath Agarwal S/O Devki Nandan Agarwal Vs. Ganesh NaraIn Kalekar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Case No. 15 of 1961
Judge
Reported inAIR1963MP255; 1963CriLJ165; 1963MPLJ671
ActsMadhya Pradesh Shops and Establishment Act, 1958 - Sections 2(24)
AppellantBishambar Nath Agarwal S/O Devki Nandan Agarwal
RespondentGanesh NaraIn Kalekar and anr.
Appellant AdvocateG.P. Patankar, Adv.
Respondent AdvocateA.R. Naokar, Adv. for Opposite Party No. 1
DispositionPetition allowed
Cases ReferredKalidas v. State of Bombay
Excerpt:
- .....an advocate's office is a 'shop' within the meaning of clause (24) of section 2 of the m.p. shopsand establishment act, 1958 which runs as under:'(24) -- 'shop' means any premises where goods are sold, either by retail or wholesale or both or where services are rendered to customers, and includes an office, a store room, godown, warehouse or work-place, whether in thesame premises or otherwise used in connection with such tradeor business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating-house, theatre or other place of public amusement or entertainmentor a shop attached to a factory where the persons employeein the shop are allowed the benefits provided for workers under the factories act, 1948 (lxiii of 1948);'evidently an.....
Judgment:

Sharma, J.

1. This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated the 3rd of February, 1961 passed by the Legal Authority under the Payment of Wages Act, Gwalior in Case No. 15 of 1959.

2. The petitioner is an Advocate in the Madhya Pradesh High Court and has office at Naya Bajar Lashkar. The opponent No. 1 Ganesh Narain Kalekar was engaged as a clerk by the petitioner on a fixed salary of Rs. 100/- per month to work in his office. On the 5th of November, 1959 the opponent No. 1 submitted an application--to the Legal Authority under the Payment of Wages Actswherein he claimed arrears of his salary till 14-10-1959. The said application was moved under Section 30 of the Madhya Pradesh Shops and Establishment Act, 1958 read with Section 15 of the Payment of Wages Act.

3. A preliminary objection was raised by the present petitioner to the maintainability of the application on the ground that the Shops and Establishment Act can nave no application to persons employed in an Advocate's office. The petitioner, therefore, contended that the LegalAuthority had no jurisdiction to entertain the application. This objection having been overuled the petitioner has come up before this Court with a prayer for issuance of awrit of certiorari against opponent No. 2, the Legal Authority under the Payment of Wages Act at Gwalior, and also under Article 227 of the Constitution of India forquashing the impugned order.

4. The question which falls for determination in this case is whether an Advocate's office is a 'shop' within the meaning of Clause (24) of Section 2 of the M.P. Shopsand Establishment Act, 1958 which runs as under:

'(24) -- 'shop' means any premises where goods are sold, either by retail or wholesale or both or where services are rendered to customers, and includes an office, a store room, godown, warehouse or work-place, whether in thesame premises or otherwise used in connection with such tradeor business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating-house, theatre or other place of public amusement or entertainmentor a shop attached to a factory where the persons employeein the shop are allowed the benefits provided for workers under the Factories Act, 1948 (LXIII of 1948);'

Evidently an Advocate's office cannot be said to be premises where goods are sold either by retail or wholesale or both. Therefore, we have to see if such an office can be said to be premises 'where services are rendered to customers.' A lawyer no doubt renders services to his clients but the question is whether he renders them on the premises in which he holds his office. In London General Cab Co., Ltd. v. L. R. C., (1950) 2 All ER 566 certain cab owners gave their cabs to drivers under an agreement whereby the drivers paid to the owners a pro-portion of the money received by them as fare from the passengers. It was held that the cab-owners were not rendering any service on the premises. This decision was followed in State v. Kushalchand 1960 Jab L.I 120 where the question was whether the premises which were used for stocking and letting on hire bicycles were used for rendering any service there. It was held that no services were in fact rendered on the premises. An Advocate might Iaccept a brief at his office, or draw up pleadings, or be available for consultation on legal matters. But in doing all this he is not rendering any service to his clients actually on the premises.

5. It is also difficult to see how a client can betermed as a 'customer' of an Advocate. A 'customer', as ofgeneral acceptation is one who, on his own account, liabtually or frequently has commercial or monetary dealingswith a trading or business person, firm, or concern, inmatters relating to such trading or business; -- (SeeStroud's Judicial Dictionary 3rd Edition page 705).

The second part of the definition of the word 'shop' as was field by the Supreme Court in Kalidas v. State of Bombay, (S) AIR 1955 SC 62 merely links on the main definition ancillary places, such as store-rooms, godowns, work places, etc., which are mainly used in connection with the business; and 'business' means the kind of business defined in the earlier part of the definition,namely that portion of the business of selling which isconfined to selling on some defined premises,

6. It was suggested on behalf of the State that the Government having issued a Notification exempting an Advocate's office from the operation of all the provisions Of the M.P. Shops and Establishment Act, it must be deemed that in the absence of such a Notification the provisions of the said Act would apply to an Advocate's office. The interpretation placed by the Government on the words used in the definition of the word 'shop' as contained in Clause (24) of Section 2 of the Act cannot serve as a guide to us in interpreting that term. For aught that we may 'know the Notification may have been issued by way of abundant caution. At any rate we consider this fact to be wholly immaterial in deciding this question.

7. For all these reasons we are of the opinion that the office of an Advocate cannot be deemed to be a 'shop' within the meaning of Clause (24) of Section 2 of the Madhya Pradesh Shops and Establishment Act, 1958.

8. The result is that this petition is allowed and the proceedings in the present case before the Legal Authority under the Payment of Wages Act at Gwalior are hereby quashed. Let a writ be issued accordingly.

We shall, in the circumstances, however, make noorder as to costs. The security deposit, if any be refunded.


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