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T.K. Menon and Co., Calicut Vs. District Labour Officer, Kozhikode and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 46 of 1966
Judge
Reported in(1966)IILLJ613Ker
ActsIndustrial Disputes Act, 1947 - Sections 2 and 12; Constitution of India - Article 226
AppellantT.K. Menon and Co., Calicut
RespondentDistrict Labour Officer, Kozhikode and anr.
Appellant Advocate K.P. Radhakrishna Menon, Adv.
Respondent Advocate P. Balagangadhara Menon, Government Pleader and; M.V. Joseph, Adv.
DispositionAppeal allowed
Cases ReferredCecil v. Inland Revenue Commissioners
Excerpt:
labour and industrial - industry - section 2 of industrial disputes act, 1947 - appellant is partnership firm carrying on work of chartered accountants - firm engaged few staffs whose services discharged after service of notice - discharged employees raised industrial dispute - chartered accountant allowed to practice in view of technical qualification he possesses - no investment of capital necessary for practice as chartered accountant except qualification - work of chartered accountant not included in definition of industry under section 2. - - the wider import is attracted even more clearly when we look at the latter part of the definition which refer to 'calling, service, employment, or industrial occupation or avocation of workmen. 615, 616: in considering the question as to.....krishnamoorthy iyer, j.1. the short but difficult question that falls to be decided in this appeal filed against the decision of mr. justice mathew dismissing the petition of the appellant filed under articles 226 and 227 of the constitution of india is whether the appellant a partnership firm which carries on the work of chartered accountants in calicut can be said to constitute an industry under section 2(j) of the industrial disputes act, 1947 hereinafter referred to as the act.2. messrs. t. k. menon and co., the appellant before us is a partnership firm doing the work of chartered accountants in calicut. the firm consists of three partners shri t. k. menon and his two sons shri p. r. menon and shri p. v. menon. all of them are chartered accountants. the firm had employed some.....
Judgment:

Krishnamoorthy Iyer, J.

1. The short but difficult question that falls to be decided in this appeal filed against the decision of Mr. Justice Mathew dismissing the petition of the appellant filed under Articles 226 and 227 of the Constitution of India is whether the appellant a partnership firm which carries on the work of Chartered Accountants in Calicut can be said to constitute an industry under Section 2(j) of the Industrial Disputes Act, 1947 hereinafter referred to as the Act.

2. Messrs. T. K. Menon and Co., the appellant before us is a partnership firm doing the work of Chartered Accountants in Calicut. The firm consists of three partners Shri T. K. Menon and his two sons Shri P. R. Menon and Shri P. V. Menon. All of them are Chartered Accountants. The firm had employed some subordinate staff in their office at Calicut. The services of eight members of the subordinate staff were discharged by the appellant after giving them due notice. Thereupon the appellant received Ext, P-l notice dated 18-11-1903 from the second respondent -- the Mercantile Employees Association Calicut -- who have taken up the cause of the discharged employees to the effect that they are raising an Industrial dispute before the first respondent -- the District Labour Officer Kozhikode. The first respondent issued Ext. P-2 notice dated 24-11-1963 to the appellant initiating conciliation proceedings under Section 12 of the Act read with Rr. 10 ana 11 of the Kerala Industrial Disputes Rules, 1957. Ext. P-2 is to the following effect:

'Whereas an industrial dispute exists between the Management of M/s. T. K. Menon & Co., Chartered Accountants and their workmen represented by Mercantile Employees Association Calicut over the issues mentioned at the foot, I, in exercise of powers conferred on me under Section 12 of the Industrial Disputes Act, 1947 (Act XIV of 1947) read with Rules 10 and 11 of the Kerala Industrial Disputes Rules 1957, hereby declare my intention to commence conciliation proceedings in the aforesaid dispute with effect from 24-11-65 and propose to hold a joint conference of the parties at 10.30 a.m. on 1-12-65 in this office. I, therefore request you to make it convenient to be present for the conference.'

3. The petition under Articles 226 and 227 of the Constitution of India was filed by the appellant through one of its partners 'to quash Ext. P-2 by the issuance of a writ of cer-tiorari or in the alternative to issue a writ or order in the nature of prohibition restraining the first respondent (District Labour Officer, Kozhikode) from continuing the proceedings initiated under Ext. P-2'. The learned single Judge was of the view that the question whether the appellant carries on an Industry or not will depend upon

'whether the professional income is earned solely by efforts of the partners of the firm or whether the firm carries on other business besides the business of a chartered accountant'

and until this question of fact is settled it is not possible to say whether the appellant is carrying on an industry or not. The learned Judge therefore dismissed the petition holding that the decision of the first respondent to conciliate the dispute cannot be characterised as entirely without jurisdiction.

4. The appellants in their affidavit filed in support of the Original Petition explained the manner in which the firm carries on its work and stated in paragraphs 8 to 5 therein as follows:

'Our professional work chiefly consists of acting as auditors of limited companies etc. and representing clients before the taxing authorities. Our work as auditors of companies etc., is just about ten per centum of the total volume of work handled by us whereas the work done y us as tax practitioners is about ninety per centum, For the work so turned out by us there is no capital investment (as the expression is used in -common parlance) but there is only our special or peculiar intellectual and educational equipment.

As provided for under the Act and the Regulation framed thereunder to carry out the work of the auditors we have under us the 'Articled Clerks'. These are persons undergoing training for being enrolled as chartered accountants. Their job is to audit the accounts of our clients at our instructions and under our personal supervision. However, the important work of verifying the balance sheet and profit and loss account and the issuance of the audit reports are being done by us only.

In addition to the 'articled clerks' we had employed some subordinate staff who are popularly known as personal clerks. Their work is rather mechanical in that they are to do such works as copying etc., in our office. Some of them have not even passed S. S. L. C. examination. Those who may claim to have passed the said examination, are persons who have got only very low marks in the examination.'

5. No counter affidavit was filed by the first respondent. In the counter-affidavit filed by the second respondent, the relevant allegations are in paragraphs 4, 5 and 10 which are extracted below:

'The allegation in para 3 of the affidavit is not correct. The work of the petitioner Company is mainly auditing and about 90 per cent of the total work of the firm is auditing and out of the total audit work in the firm 90 per cent is being done by the audit clerks of the firm. Thus it is not only the special or peculiar intellectual and educational equipment of the petitioners but also the talents and experience of the clerical staff that turn out the work of the Company. To be more accurate for the year 1964-65 the clerks have worked 500087 1/2 hours and the partners of the petitioner worked only 4303 hours. This can be seen from the work diary maintained by the petitioner. Of the clerical staff 7 are articled clerks, 14 are audit clerks and 2 are typists. Thus there are altogether 23 clerks at the time when the dispute was sponsored by this respondent. The petitioner is having a branch office at Cannanore and in that office 5 clerks are working.

The allegations in paras 4 and 5 of the affidavit are not correct. The articled clerks work as juniors under the audit clerks for the first one or two years and the work turned out by them is negligible. They have got only 9 days work in week whereas the audit clerks and typists have to work on all days of the week. The articled clerks are given 50 days every year for study leave on an average. Profit and loss accounts and Balance sheet of the clients of the petitioner Co. is prepared by audit clerks; besides postings, vouching, checking of bank ao-counts etc. they nave to prepare other statements also for income-tax purposes. The audit report also is prepared by the clerks. The clerks in the petitioner firm are not known as personal clerks but as audit clerks and their work is not mechanical at all. It is not correct to state the work of the clerks is mainly copying. It is also submitted that all the dismissed workers were appointed as audit clerks as is clear from the order of their appointments and confirmation. I am herewith producing the true copies of appointment and confirmation order of one of the dismissed audit clerks and the same may be marked as RIA and RIB.

The Company of the petitioner is admittedly a firm of Chartered Accountants. The volume of work turned out by them are mainly auditing and the part of the dismissed workers in this kind of work is not only not minor but without this dismissed workers the work in the firm could not be carried out. The dismissed clerks have a service ranging between 1 1/2 years to 7 years.'

6. In the counter-affidavit filed by the second respondent we do not find any allegation that the appellant is carrying on any other work besides that of a chartered accountant. It was therefore argued by the learned advocate for the appellant, that the learned single Judge was under the erroneous impression that there was an allegation that the appellant is doing some other work besides the work of a chartered accountant and had it not been for this wrong assumption the learned single Judge was prepared to hold that the work of a chartered accountant is not an industry within the meaning of Section 2(j) of the Act.

7. It was conceded before us by the learned Government Pleader appearing tor the first respondent and the learned advocate for the second respondent, that there is no pleading that the appellant is carrying on any other work besides that of a chartered accountant.

8. If so, the only question to be decided is whether the activities of the firm of chartered accountants carrying on the business of a chartered accountant simpliciter can be said to be an industry within the meaning of Section 2(j) of the Act.

9. The expressions 'industry', 'industrial dispute and 'workman' are defined in Section 2, clauses (j), (k) and (s) of the Act as follows:

(j) ' 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicrafts, or industrial occupation or avocation of workmen;

(k) 'industrial dispute' means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any person;

(s) 'workman' means any person (Including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.'

10. In deciding that the dispute between Budge Budge Municipality and its employees in branches of work analogous to trade or business is an industrial dispute, Chandrasekhara Aiyar, J. held in D. N. Banerji v. P. R. Mukherjee, AIR 1953 SC 58 that the above definitions should receive a wide import and expressed himself thus at page 61:

'When our Act came to be passed, labour disputes had already assumed big proportions, and there were clashes between workmen and employers in several instances. We can assume therefore that it was to meet such a situation that the Act was enacted, and it is consequently necessary to give the terms employed in the Act referring to such disputes as wide an import as reasonably possible. Do the definitions of 'industry', 'industrial dispute' and 'workmen' take in the extended significance or exclude it? Though the word 'undertaking' in the definition of 'industry' is wedged in between business and trade on the one hand and manufacture on the other, and though therefore it might mean only a business or trade undertaking, still it must be remembered that if that were so, there was no need to use the word separately from business or trade. The wider import is attracted even more clearly when we look at the latter part of the definition which refer to 'calling, service, employment, or industrial occupation or avocation of workmen.' 'Undertaking' in the first part of the definition and 'industrial occupation or avocation' in the second part obviously mean much more than what is ordinarily understood by trade or business. The definition was apparently intended to include within its scope what might not strictly be called a trade or business venture.'

11. The interpretation of the definition of 'industry' in Section 2(j) of the Act game up for consideration before their Lordships of the Supreme Court again in State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610. The questions which arose for decision in the said case were whether Ward servants in the J. T. group of Hospitals controlled by the then State or Bombay were workmen and whether the J. J. group of Hospitals constitute an industry under the Act. Their Lordships observed at page 614 thus:

'It is clear, however, that though Section 2(j) uses words of very wide denotation, a fine would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word 'service is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in Section 2(j); and that no doubt is a somewhat difficult problem to decide.'

To the same effect are the observations of their Lordships in N. U. C. Employees v. M. R. Meher, Industrial Tribunal, AIR 1962 SC 1080 at p. 1085 where it was said:

'There is no doubt that the words used in Section 2(j) are very wide, but as has been held by this Court in the case of Hospitals 1960-2 SCR 866: AIR 1960 SC 610 it is necessary to draw a line in a fair and just manner putting some limitation upon the width of the said words and a working test has been enunciated in that behalf.'

12. In coming to the conclusion that in running the hospitals the State is carrying on an undertaking within the meaning of Section 20) of the Act, their Lordships stated the working rule in these words in the decision in AIR 1960 SC 610 at pp. 615, 616:

'In considering the question as to whether the group of Hospitals run by the appellant undoubtedly for the purpose of giving medical relief to the citizens and for helping to impart medical education are an undertaking or not, it would be pertinent to enquire whether an activity of a like nature would be an undertaking if it is carried on by a private citizen or a group of private citizens. There Is no doubt that if a hospital is run by private citizens for profit it would be an undertaking very much like the trade or business in their conventional sense. We have already stated that the presence of profit motive is not essential for bringing an undertaking within Section 2(j), If that be so, if a private citizen runs a hospital without charging any fees from the patients treated in it, it would nevertheless he an undertaking under Section 2(j). Thus the character of the activity involved in running a hospital brings the institution of the hospital within Section 2(j). Does it make any differ-once that the hospital is run by the Government in the interpretation of the word 'undertaking' in Section 2(j). In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of Section 2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference.

We have yet to decide which are the attributes the presence of which makes an activity an undertaking within Section 2(j), on the ground that it is analogous to trade or business. It is difficult to state these possible attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distributing of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must e organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual nor must it be for oneself nor for pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which Section 2(j) applies.'

13. In this connection it will be useful to refer to the decision of Sinha, J. of the Calcutta High Court in Brij Mohan Bagaria v. N. C. Cha-terjee, AIR 1958 Cal 460. The question considered by the learned Judge was whether the term 'Industry' will take within its ambit the work of a solicitor and his profession. The learned Judge in coming to the conclusion that the calling of a solicitor carrying on his normal avocations cannot be called an industry under Section 2(j) of the Act observed thus at page 464:

'Under Section 2(j) of the Act, the word 'industry' means any undertaking or calling of employers. If it is given a very wide and literal meaning, then it will include every undertaking or any calling and would necessarily include that of a solicitor and his profession. But the word has to be construed In the context of the Act and the scheme of it. Can it be said that in such a case there is co-operation of labour and capital to produce wealth or services? In my opinion, however extended the meaning be given to the expression 'industry' or 'Industrial dispute' or to the expression undertaking' or 'calling', we cannot include within their concept the case of an individual who carries on a profession, dependent upon his own intellectual skill. Every case must be decided upon its own facts. It cannot be said that an industry never Includes person with intellectual skill. The question Is slightly different. A doctor, if he carries on the business of a nursing home, may be said to be carrying on an Industry or if he carries on a manufacturing laboratory, that would certainly be an industry, but in so far as he carries on his profession in the ordinary sense, namely, an avocation which Is entirely dependent upon his own intellectual attainments and the skill of his hands, it has never been construed to be an industry, and, as such, it would not be governed by the provisions of the Industrial Disputes Act, Similarly, the profession of a lawyer, in so far as the normal avocations of lawyers are concerned which is dependent upon his own intellectual attainments and the skill with which he conducts the cases entrusted to him by his clients, that has never been construed as industry in the sense in which it is used in the Act. But a lawyer under certain circumstances may be carrying on an industry. For example, if a lawyer carries on a business of publication of legal literature, that would be a different matter altogether. Similarly, in the case of an attorney, the normal avocations of an attorney are entirely dependent upon his own intellectual attainments and individual skill with which he acts for his clients. In doing so, he may employ many assistants and a large number of staff, but, that, to my mind, makes no difference, because it is not the largeness or smallness of the staff that is decisive of the question. But an attorney's profession can be turned into an industry under certain circumstances. For example, if he carries on an investment business. In the present case, however, it has nowhere been mentioned, and it is not the case of the respondents that the petitioner carries on anything more than his normal avocation as an attorney. The issue was expressly raised before the Industrial Court and statements were filed, but nothing has been stated to suggest that the petitioner carries on his professional calling in any way excepting in the normal manner in which an attorney carries on his profession or calling. The only reason which is being suggested to describe his pro-fessional calling as an industry is that it is a 'calling', and callings have been included in the definition of the word 'industry' in the Act. It has further been slated that the petitioner em-ploys a large number of persons. It is further stated that the staff put in clerical and/or manual work and are, therefore, workmen with-in the meaning of the Act. It is lastly stated that the petitioner earns his fees with the help of the labour and skill of his employees combined with his own skill, labour and capital. In my opinion, these grounds are not sufficient to hold that the calling of the petitioner constitutes an industry within the meaning of the Act. As I have stated above, it is open to the legislature to include such calling within the scope of the Act. But until that is done, the calling of a solicitor carrying on his normal avocations cannot be called an industry within the meaning of the word as used in the Act.'

14. A similar question came before Mr. Justice P. B. Mukherji of the same High Court in D. P. Dunderdela v. G. P. Mukherjee, AIR 1958 Cal 465 who coming to the same conclusion made the following observations:

'All human endeavour is industry in the literary sense but is not industry in the industrial sense. The words 'undertaking' or 'calling in the context of this statutory definition bears an industrial connotation, for words, like men, speak the language of the place where they are born and brought up. In an expanding society with broadening concept of business and industry the word 'industry' is also enlarging its ambit, scope and aspiration. Even then outside the expanding horizon of industry in an industrial civilisation and in an industrial democracy there still remains a vast world of individual work and individual endeavour depending on individual skill, excellence and peculiarity personal to the individual or individuals concerned. That vast world does not come within the increasing glitter and glamour of industry. That still remains outside the omnivorous touch of industry. One such would is the world of private endeavour and private excellence personal to the individual concerned.'

15. A division bench of the Bombay High Court in National Union of Commercial Employees v. M. R. Meher AIR 1960 Bom 22 also ruled that the profession of a solicitor is not an industry within the meaning of the Act and a dispute between a firm or solicitors and its employees is not an industrial dispute under the Act. This decision which was appealed against was affirmed by the Supreme Court in AIR 1962 SC 1080.

16. The decision of the Supreme Court that the firm of solicitors is not an industry was arrived at by applying the working principle stated in AIR 1960 SC 610 to decide the question of industry and also by interpreting the definition of 'industry' in the Act. Their Lordships stated the question for decision in the appeal thus. What would be the result of the application laid down by this court of the work-ing test in the Hospital Case, 1960-2 SCR 866: AIR 1960 SC 610 in relation to the controversy between the parties in the present appeal? and answered the same thus at page 1083:

'When in the Hospital Case, 1960-2 SCR 866: AIR 1960 SC 610 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 purposes of rendering material service or for the purpose of production. It would be realised mat 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 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 co-operate 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.'

17. How the test of co-operation between the employer and the employees in the Hospitals is satisfied was stated by Their Lordships thus:

'In the hospitals, the service to the patients begins with proper diagnosis followed by treatment, either medical or surgical, according to the requirements of the case. In the case of medical treatment, the patients receive medical treatment according to the prescription and are kept in the hospital, for further treatment. In surgical cases, the patients receive surgical treatment by way of operation and then are kept In the hospital for further treatment until they are discharged. During the period of such treatment, all their needs have to be attended to, food has to be supplied to them, nursing assistance has to be given to them, medical help from time to time has to be rendered and all incidental services required for their recovery have also to be rendered. Now, in the case of the activities of an organised hospital, the cooperation of the employees is thus directly involved in rendering one kind of service or another which it is the duty of the hospital to render. It Is true that the patients are drawn to the hospitals primarily because of the doctors or surgeons associated with them. But there can be no doubt that the work of the hospital ana its purpose are not achieved merely when a surgical operation is performed or medical prescription provided. After medical treatment is determined or a surgical operation is performed, the patient coming to a hospital as in indoor patient needs all kinds of medical assistance until he is discharged and the services rendered to him both initially and thereafter until his discharge are all services which the hospital has been established to render and it is in the rendering of the said services that the employees of the hospital co-operate and play their part. That is how the test of co-operation between the employer and his employees is satisfied in regard to hospitals which are properly organised and maintained. It is, of course, true that the quality, the importance and the nature of the service rendered by different categories of employees in a hospital would not be the same, out nevertheless, all the categories of service rendered by respective classes of employees in a hospital are essential for the purpose or giving service to the patients which is the objective of the hospital. That is how the hospitals satisfy the test of co-operation between the employer and his employees.'

18. But in the case of a solicitors' firm though their Lordships were of the view that superficially considered it is organised as an industrial concern would be organised it was stated:

'But has the work of the clerk who types correspondence or that of the accountant who keeps accounts 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 co-opera-tion between the solicitor and his employees, but that co-opsration has no direct or immediate relation to the professional service which the solicitor renders to his client. Therefore, in our opinion, it is difficult to accept the plea that a Solicitor's firm carrying on the work of an Attorney is an industry within the meaning of Section 2(j).'

19. Apart from deciding the case in the light of the working principle stated in the Hospital case, their Lordships were also of the view that the legislature could not have intended to include a liberal profession like that of an attorney in the definition of industry, in Section 2(j) of the Act. Their Lordships stated thus in AIR 1662 SC 1080 at p. 1085.

'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 Section 2(j). The very concept 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 co-operation 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(j).'

20. Their Lordships observed further that very form or aspect of human activity in which capital and labour co-operate or employer and employees assist each other is not an industry. According to their Lordships the distinguishing feature of an industry is that for the production of goods or for the rendering of service co-operation between capital and labour or between the employer and his employees must be direct and must be essential

21. No direct decision of the Supreme Court dealing with disputes between chartered accountants and their employees was brought to our notice. But there are two decisions of the Calcutta High Court N. R. Mukherjee v. A. H. Just AIR 1961 Cal 95 and Rabindra Nath v. First Industrial Tribunal West Bengal, AIR 1963 Cal 310 to which reference has to be made. These decisions were referred to in the judgment under appeal. In AIR 1961 Cal 95 in view of the contention that the activities of the firm of chartered accountants were not confined to business of a chartered accountant simpliciter but extended to other activities not connected with the business of chartered accountant, the learned Judge without deciding the question finally observed at p. 97.

'Upon the pleadings of the parties it is impossible to decide the question whether the business of a Chartered Accountant is an industry within the meaning of section 2(j) . . . In my opinion, that point will have to be decided after taking evidence on the two questions: namely (a) whether the professional income of the firm was earned 'solely' by the efforts of the partners of the firm and (b) whether the firm carries on other businesses besides the business of a Chartered Accountant.'

This decision is therefore of no assistance to us in furnishing an answer to the question in the appeal.

22. In AIR 1963 Cal 310 Mr. Justice B. N. Banerjee included within the definition of the expression 'industry' in Section 2(j) of the Act only a chartered accountant carrying on auditing work in a magnified scale with more clients than he can himself manage and is perforce compelled to have a division of labour, his clerks doing the examination of accounts and he himself drawing up the audit report on the result of such examination. The learned Judge observed:

'Therefore, if in proper professional conduct, it is permissible for a Chartered Accountant to utilise employees in the examination of accounts, on which his report is to be based, it cannot be said that such a report is his individualistic production, having no connection with the labour put in by his employees.

I desire, however, to make one position clear. A Chartered Accountant doing audit work assisted by stenographers, personal clerks and menial servants, that is to say, doing the entire auditing work, from examination of accounts to the making of the report, all by himself but only with such subsidiary and incidental help as may be rendered by his stenographers, typists, personal clerks and servants may not be carrying out an industry. But if a Chartered Accountant carries on auditing work in a magnified scale, with more clients than he can himself manage, and is perforce compelled to have a division of labour, his clerks doing the examination of accounts and he himself drawing up the audit report, on the result of such examination, it may not be said that this type of co-operation is not industry.'

23. In AIR 1962 SC 1080 an attempt was made before the Supreme Court to distinguish between professional services rendered by individual acting by himself and similar services ren-dered by a firm consisting of several persons on the ground that professional services individually rendered stand on a different footing from pro-fessional services rendered in an organised and institutionalised manner. In repelling this argument their Lordships observed at page 1083 thus:

'In our opinion the distinction sought to be drawn by Mr. Chari between professional service rendered by an individual acting by himself and that rendered by a firm is not logical for the purposes of the application of the test in question. What is true about a firm of solicitors would be equally true about an individual solicitor working by himself. As the firm engages different categories of employees, a single solicitor also engages different categories of employees to carry out different types of work and so the presence of co-operation between the employees working in a solicitor's office and their employer, the solicitor, could be attributed to the work of a single solicitor as much as to the work of the firm; and, therefore, if Mr. Chari is right nd if the firm of solicitors is held to be an inustry under the Act the office of an individual solicitor cannot escape the application of the definition of Section 2(j).'

24 The distinction, therefore, made by B. N. Banerjee, J. in AIR 1963 Cal 310 depending on the volume of work undertaken by a chartered accountant with great respect to the learned Judge does not commend itself to us. If the work of an individual chartered accountant in the sense that the entire work is done by him is not an in-dustry under Section 2(j) the fact that in view of the volume of work he has secured he has to maintain employees, cannot make it an industry within the meaning of Section 2(j) of the Act.

25. It was contended by the learned Government Pleader that the observation in AIR 1962 SC 1080 that a liberal profession like that of an attorney could not have been intended to be included in the definition of 'industry' in Section 2(j) of the Act should be restricted to the three liberal professions, namely, law, medicine and theology, and cannot be extended to apply to other professions even if the pursuit of such professions is de-pendent on the personal skill and qualifications of the persons following the same. We do not think we can accede to the contention of the learned Government Pleader. It is rather difficult to define exhaustively in a legal manner what 'profession' is.

26. The meaning of the term 'profession' given in Black's Law Dictionary, 4th Edition is as follows:

'A vocation, calling, occupation or employment involving labour, skill, education, special knowledge and compensation or profit, but the labour and skill involved is predominantly mental or intellectual, rather than physical or manual. The method or means pursued by persons of technical or scientific training.

The term originally contemplated only theology, law, and medicine, but as applications of science and learning are extended to other departments of affairs, other vocations also receive the name, which implies professed attainments in special knowledge as distinguished from mere skill.'

In Halsbury's Laws of England, 3rd edition, Volume 20, page 248, paragraph 445, it is stated thus:

'A profession involves the idea of an occupation requiring either purely intellectual skill, or, if any manual skill, as in painting, sculpture or surgery, skill controlled by the intellectual skill of the operator, as distinguished from an occupation which is substantially the production or sale or arrangement for the production or sale of commodities. The word 'profession' is certainly wider than the old definition of the learned professions, the church, medicine and law. A company cannot carry on a profession.'

27. In this connection it is necessary to refer to certain English decisions which have explained the word 'profession'. These decisions were concerned with the charging of profits derived from certain professions to excess profits duty. Section 38 of the Finance (No. 2) Act, 1915 (5 and 6 Geo. 5, C. 89) imposed an excess profits duty on certain profits arising from any trade or business. Section 39(o) of the said Act exempted from payment of excess profits duty

'any profession the profits of which are dependent mainly on the personal qualifications of the person by whom the profession is carried on and in which no capital expenditure is required, or only capital expenditure of a comparatively small amount.....'.

28. In William Esplen, Son, and Swainston, Ltd. v. Inland Revenue Commissioners, 1919-2 KB 731 the question arose whether a company carrying on the work of naval architects was carrying on a profession within the meaning of Section 39(c) of the 1915 Act. Rbwlatt, J. laid down the following proposition:

'It is agreed that a naval architect is a professional man, and it is true, as Mr. Latter contended, that what has to be looked at is the character of the work generally, but in my opinion the company is not carrying 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 whom it is carried on, and that can only be an individual. There can be no profession qualifications except in an individual. A company such as this can only do a naval architect s work by sending a naval architect to its customers to do what they want done.'

This decision is therefore an authority for the position that a naval architect is a professional man depending on his personal qualification for the carrying on of his profession but when it is carried on by a company it cannot be said to be a profession.

29. The court of appeal in Commissioner! of Inland Revenue v. Maxse, 1919-1 KB. 847 had to consider the question whether Mr. Maxse who was the sole proprietor, editor and publisher of a monthly magazine was carrying on the profession of Journalism and he was within exception (c) to section 39 of the 1915 Act. Scrutton L. J. examined the question 'What is a profession?' in the following words at page 657:

'The next question is what is a 'profession'? I am very reluctant finally to propound a comprehensive definition. A set of tacts 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, ag 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. It has now, I think, a wider meaning.

It appears to me clear that a journalist whose contributions have any literary form, as distinguished from a reporter, exercises a 'profession', and that the editor of a periodical comes in the same category. It seems to me equally clear that the proprietor of a newspaper or periodi-cal, controlling the printing, publishing and advertising, but not responsible for the selection of the literary or artistic contents, does not exercise a 'profession' but a trade or business other than a profession.'

30. The decision of the court of appeal in Currie v. Inland Revenue Commissioners, 1921-2 KB 332 is very instructive. The appellant before the court of appeal was Mr. Currie who carried on the business of the Income Taxpayers' Appeal Agency and was doing the work of an accountant. He had employed a chartered accountant as a member of his staff. The question which arose for decision before the Court of appeal was whether Mr. Currie was exempt from payment of excess profits duty on the ground that he was carrying on a 'profession' within the meaning of Section 39(c) of the 1915 Act. In discussing this question, Lord Sterndale M. R. observed at pages 337 and 338:

'I have been troubled very much by this: that I have an uncomfortable feeling, of which I have not yet got rid, that it is quite possible that a great deal more weight was attached by the Commissioners in coming to their conclusion to the fact that this gentleman was not a chartered accountant than I think should be attached to it. It is a matter to he considered, but I could not help feeling that it was possible that had he been doing exactly the same work and had been a chartered accountant, their finding might have been the other way. But although I have that doubt I am not, in my opinion, justified in saying, without any materials, that this was the view of the Commissioners. There were facts on which they could come to one conclusion or the other, and they came to the conclusion that the business carried on by this gentleman was not a profession.'

Scrutton L. J. observed at pages 340 and 341 as follows:

'In my view it is impossible to lay down any strict legal definition of what is a profession, because persons carry on such infinite varieties of trades and businesses that it is a question of degree in nearly every case whether the form of business that a particular person carries on it, or is not, a profession. Accountancy is of every degree of skill or simplicity. I should certainly not assent to the proposition that as a matter of law every accountant carries on a profession or that every accountant does not. The fact that a person may have some knowledge of law does not, in my view, determine whether or not the particular business carried on by him is a profession. Take the case that I put during the argument, of a forwarding agent. From the nature of his business he has to know something about railway Acts, about the classes of risk that are ran in sending goods in a particular way, and under particular forms of contract. That may or may not be sufficient to make his business a profession. Other persons may require rather more knowledge of law, and it must be a question of degree in each case. Take the oase before Rowlatt J. of a photographer: Cecil v. Inland Revenue Commissioners, (1) Art is a matter of degree, and to determine whether an artist is a professional man again depends, in my view, on the degree of artistic work that he is doing.'

And again at page 343 observed thus:

'But I do desire to say this, as the Master of the Rolls has mentioned it, that I myself am disposed to attach some importance in findings as to whether a profession is exercised or not to the fact that the particular man is a member of an organised professional body with a recognised standard of ability enforced before he can enter it and a recognised standard of conduct enforced while he is practising it. I do not for a moment say it settles the matter, but if I were deciding a question of profession I should attach some importance to that particular feature.'

31. There are professions today which nobody would have considered to be professions in times past. The profession of the Chartered Accountant has grown up in comparatively recent times. A profession is an occupation carried on by a person by virtue of his personal qualifications. Probably it may assume the character of a business if an element of profit arising from the investment of capital is introduced. Chartered Accountants constitute a skilled professional class. Just as there is no direct and essential co-operation between the solicitor or the attorney and his employees in the rendering of his services to his clients, similarly in the case of chartered accountants also the rendering of service to the clients is not the result of any partnership or any essential co-operation between the employer and the employees.

32. Since 1949, the profession of chartered accountants other than cost or works accounts is regulated and controlled by the provisions of Chartered Accountants Act 38 of 1949 and by the institute of chartered accountants established under the said Act. The said Act is intended to secure maintenance of the requisite standard of professional qualifications, discipline and conduct among chartered accountants. It is a self-contained code containing provisions for regulating the conduct of persons belonging to the profession of chartered accountants. The legislature did not intend recourse to the provisions of any other law to regulate the conduct of these practising as chartered accountants. Section 31 provides that any reference to a chartered accountant or a registered accountant or a certified or qualified auditor in any other law or in any document shall be construed as a chartered accountant in practice within the meaning of the Chartered Accountants Act. Section 2 Sub-clause 1(b) defines a chartered accountant as meaning a person who is a member of the institute of Chartered Accountants of India constituted under Act 38 of 1949. Section 4 prescribes the qualifications for being enrolled as members of the institute and Section 5 provides for the division of members into two glasses designated as associate member and fellow of the institute of Chartered Accountants.

Section 2 Clause (2) prescribes the functions which a member of the institute can perform either individually or in partnership with Chartered Accountants. Section 6 provides that no member of the institute shall be entitled to practise unless he has obtained from the Council a certificate of practice. Section 7 says that every member of the Institute in practice shall and any other member may use the designation of chartered accountant and no member using such designation shall use any other description whether in addition thereto or in substitution therefor. Section 25 says that no company whether incorporated in India or elsewhere shall practise as chartered accountants. Section 27 provides that where a chartered accountant in practice or a firm of such chartered accountants has more thas one office in India, each one of such office shall be in the separate charge of a member of the institute, though a power is given to the Council to grant exemption from the operation of this rule in suitable cases.

33. It is not possible for a chartered accountant to engage himself in any work not sanctioned by the provisions of Act 38 of 1949. Provisions are made for the establishment of the council of the institute of chartered accountants to control chartered accountants and for taking disciplinary action against them for misconduct. The object of Act 38 of 1949 is to prescribe the technical qualification for chartered accountants and to regulate a highly skilled technical profession in the interests of public welfare. The fact that a company incorporated in India or outside is prohibited from practising as chartered accountants really shows that the emphasis is upon the personal qualification of a person or the group of persons by whom the practice as chartered accountants is carried on.

34. Chartered Accountants are personally subject to the same rules of liability for negligence in the practice of their profession as are the members of other skilled professions. A chartered accountant in the performance of his duties impliedly represents that he possesses the ability and skill of the average person engaged in that branch. If owing to tack of proper skill or any negligence a chartered accountant fails to disclose the true state of accounts which he is employed to audit he is liable to his employer for the damages naturally and proximately arising from such failure. Chartered Accountants who certify as true to their own knowledge that a balance sheet is in accordance with the books of account are not exonerated where such statement is not true, because they believed it to be true. Nor does the fact that the misrepresentation was due to the failure of their subordinates to make a full audit will relieve them of their liability.

35. It will therefore be seen that a chartered accountant is a member of an organised professional body with a recognised standard of ability enforced before he enters it and a recognised standard of conduct enforced while he is practising it. This feature assumes importance according to Scrutton L. J. in deciding a question of profession. A chartered accountant is allowed to practice as chartered accountant in view of the special and technical qualification he possesses. There is no investment of any capital to practise as a chartered accountant except the qualifications and experience he or the partners possess. It therefore follows, relying on the observations of the Supreme Court with reference to an attorney, that the work of a chartered accountant is not included in the definition of the word 'industry' in Section 2(j) of the Act.

36. Applying the working principle enunciated by their Lordships of the Supreme Court to the facts of the case before us, it has to be held that the work carried on by the appellant is not an industry. The chartered accountants who are partners of the firm bring their skill and educational equipment and qualification and experience in carrying on their avocation as chartered accountants as provided by the provisions of Act 38 of 1949. To enable them to render service to the clients the co-operation which they get from their employees is neither direct nor essential for rendering such services. The entire work of a chartered accountant carried out by him depends purely on his personal skill, qualification and ability and the service rendered is not the direct result of any cooperation between him and his employees. Since in the case before us, as already stated, there is no plea that the appellant is carrying on other activities besides the practice of chartered accountants, our decision is confined to the practice of a chartered accountant simpliciter in accordance with the provisions of Act 38 of 1949. We have therefore to hold that the work carried on by the appellant is not an industry and the dispute between the appellant and their employees is not an industrial dispute. Ext. P-2 is therefore without jurisdiction.

37. The learned Government Pleader raised the further contention that Ext. P-2 being an administrative order no writ of certiorari or prohibition can be granted and in view of the remedy available to the appellant to raise the point before the Tribunal if a reference is made by the Government under Section 10 of the Act, this Court should not interfere at this stage. These objections are not seen to have been raised before the learned single Judge. The learned advocate for the appellant did not dispute that Ext. P-2 is an administrative order and that a writ of certiorari or prohibition cannot be issued. Put he contended that if on the facts which are not disputed, it is found that the dispute between the appellant and their employees is not an industrial dispute then Ext. P-2 is without jurisdiction and this court is competent to issue mandamus or a direction preventing the first respondent from implementing Ext. P-2. This contention of the learned advocate for the appellant has to be accepted.

38. Though a writ of prohibition or certiorari will not issue against an executive authority the High Courts nave power to issue in a fit case mandamus or an order preventing the executive authority from acting without jurisdiction where such action will subject or is likely to subject a person to lengthy proceedings and unnecessary harassment. A writ of mandamus can be issued against an administrative act provided want of jurisdiction can be found without an investigation into disputed questions of fact. Since we have held that Ext. P-2 is without jurisdiction, it is necessary to issue a writ of mandamus prohibiting the first respondent from implementing Ext. P-2 as otherwise the proceedings based on Ext. P-2 will subject the appellant to undue harassment. In this view, the objection based on the existence of an alternative remedy cannot be accepted as it is not an absolute bar to a petition under Article 226 of the Constitution of India.

39. In the result, we set aside the judgment under appeal and issue a writ of mandamusrestraining the first respondent from implementing Ext. P-2. The original petition is allowedto this extent. Before concluding this judgmentwe have to mention that no contention was raised either before the learned Judge or before usregarding the competency of a registered partner-ship to maintain a petition under Article 226 or227 of the Constitution of India. The Writ Appeal is thus allowed to the extent stated abovewithout any order as to costs.


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