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N.R. Mukherjee and ors. Vs. Arnold Hartman Just and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 196 of 1958
Judge
Reported inAIR1961Cal95
ActsIndustrial Disputes Act, 1947 - Section 2; ;Constitution of India - Article 226
AppellantN.R. Mukherjee and ors.
RespondentArnold Hartman Just and ors.
Appellant AdvocateA.C. Gupta, ;P.K. Sanyal and ;P.B. Burman, Advs.
Respondent AdvocateP.P. Ginwalla and ;Dipak Sen, Advs.
DispositionPetition allowed
Cases ReferredR. v. Medical Appeal Tribunal
Excerpt:
- .....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, 1955referred the following issues to the first industrialtribunal for adjudication:1. whether deduction of bonus granted to.....
Judgment:

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, 1955referred the following issues to the First IndustrialTribunal 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 employmentof 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 auditclerks 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 arechecked 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.

4. Dr. Gupta appearing in support of the appeal has contended before us that the business of a Chartered Accountant is an industry within the meaning of Section 2(j) of the Industrial Disputes Act and in support of that proposition he has relied upon the decisions of the Supreme Court In the cases of State of Bombay v. Hospital Mazdoor Sabha, : (1960)ILLJ251SC and the Corporation of the City of Nagpur v. Its Employees, : (1960)ILLJ523SC . He also relied upon another decision of the Supreme Court in the case of D. N. Banerjee v. P. R. Mukherjee, : [1953]4SCR302 . Mr. Ginwala appearing for the respondent firm has relied on two decisions of two single Judges of this Court in the cases of Brij Mohan v. N.C. Chatterjee, : (1958)IILLJ190Cal decided by himself and D. P. Dunderdele v. G. P, Mukherjee, : (1958)IILLJ183Cal decided by P. B. Mukharji, J. and also upon another decision of the Bombay High Court in the case of National Union of Commercial) Employees v. M.R. Meher, (1959) 2 Lab. L.J. 38: (AIR 1960 Bom 22). All the decisions relied upon by Mr. Ginwalla lay down the proposition that the business of an Attorney is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act.

5. As I have already said, 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). On the facts of this case that question is an abstract question of law, which cannot be decided without a specific finding of the Tribunal as to the manner in which the firm carries on its business and also on the question whether the activities of the firm are confined only to business of a Chartered Accountant simpliciter or they extend to other activities, which are not connected with the business of a Chartered Accountant. Mr. Ginwalla has strenuously contended before us that even if all the statements made by the appellants in paragraphs 5 and 8 of their affidavit-in-opposition in this Court be accepted as true, the business of the firm, cannot be said to constitute an industry within the meaning of Section 2(j) of the Act; because all the activities referred to in paragraph 8 of the affidavit-in-opposition in this Court are the normal activities of a Chartered Accountant under Regulation 78 of the regulations framed by the Council of the Institute of Chartered Accountants under Section 30 of the Chartered Accountants Act. Consequently, according to Mr. Ginwalla the only question that requires consideration is whether the business of a Chartered Accountant is an industry within the meaning of Section 2(j) of the Act. I am not, however, prepared to accept this contention as correct and 1 am not prepared to hold that the activities referred to in paragraph 8 Clauses (c) and (d) are the normal activities of a Chartered Accountant under Regulation 78. Therefore, one of the questions of the fact that has to be determined in this case is whether besides the activities of a Chartered Accountant as specified in Regulation 78, the firm also carried on the activities referred to in Clauses (c) and (d) paragraph 8 of the affidavit-in-opposition. On this point there is oath against oath. The point must be decided upon evidence. The other question of fact on which also there is a difference between, the parties is whether the professional income of the firm is earned 'solely' by the efforts of the partners of the firm as alleged by the firm or whether the main and important part of the professional work of the firm is carried on by audit clerks and other Chartered Accountants who are employed by the firm. On this point also it is necessary to have a specific finding upon evidence. In the case of Workmen of Daningeapara Tea Estate v. Dahingeapara Tea Estate, : (1958)IILLJ498SC , it was pointedout by the Supreme Court that on a reference by the Government of an industrial dispute under Section 10 of the Industrial Disputes Act, it is not toe duty of the Tribunal to decide an abstract question of law and I think the same limitation holds good in respect of a proceeding under Article 226 of the Constitution. The question whether the firm carries on the business of a Chartered Accountant only cannot, in my opinion, be divorced from the question whether it carries on other businesses besides the business of a Chartered Accountant. The manner in which, the firm carried on its business of a Chartered Accountant is also germane to the determination of the question: whether that business is an industry within the meaning of Section 2(j) of the Industrial Disputes Act. For these reasons I have come to the conclusion that neither Sinha, J. nor the Tribunal was right in deciding the abstract question whether the business of a Chartered Accountant simpliciter is an industry within the meaning of the Act. On this preliminary ground alone i allow this appeal and set aside that part of the order of Sinha J. which holds that the business of a Chartered Accountant is not an industry within the meaning of the Act, without expressing any opinion on the merits of that conclusion. For the same reason I also quash the order of the Tribunal, holding that the business of a Chartered Accountant is an industry within the meaning of the Act. 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.

6. Sinha, J. has directed that the Tribunal should come to a conclusion upon evidence to be adduced by the parties on the question whether the firm indulges in business which is not strictly the business of a Chartered Accountant. The respondent firm has filed a cross-objection against that part of the order and in support of that cross-objection it has been contended that in a proceeding under Article 226 for a Writ of Certiorari, this Court does not act as a Court of appeal and cannot therefore exercise the power of remanding a matter to the inferior Tribunal. Reliance has been placed for this proposition upon a decision of the Bombay High Court in the case of Mahomed Usman v. Labour Appellate Tribunal, : AIR1952Bom443 . That decision undoubtedly supports the contention of the respondent firm.

7. With respect, I venture to think that the decision of the Bombay High Court relied upon by Mr. Ginwalla proceeds upon a narrow view of the powers of this Court in a proceeding under Article 226. Under that Article the High Court has the power of not only issuing Writs in the nature of Mandamus, Certiorari etc., but also the further power of issuing 'directions' or orders upon a subordinate Tribunal. If in consequence of a Writ of Certiorari the subordinate Tribunal is required to take further steps in accordance with law, there is nothing to prevent the High Court from issuing such directions. The direction given by Mr. Justice Sinha upon the Tribunal to determine the question upon further evidence is, in my opinion, consequentialto the Writ of Certiorari issued by him. Such a direction is all the more necessary in view of our decision that both the Tribunal and Mr. Justice Sinha were in error in issuing a Writ of Certiorari on a part of the issue raised by the parties. As a result of our decision the so-called interim award as well as the order of Mr. Justice Sinha issuing the Writ of Certiorari is quashed and the only tiling that remains is the reference made by the State of West Bengal under Section 10 of the Industrial Disputes Act on the 1st July, 1955. The Tribunal will now have to adjudicate on that reference in the light of observations made in this judgment. If the Tribunal fails or neglects to adjudicate on that reference, a Writ of Mandamus will certainly lie against the Tribunal directing it to proceed according to law. Reference may be made in this connection to the decision in the case of R. v. Medical Appeal Tribunal, (1957) 1 Q. B. 574, where it has been laid down that if the record of a case is incomplete, a Court issuing a high prerogative writ is not precluded from sending the matter back for the record to be completed.

8. For the reasons given above, I allow the appeal and set aside that part of the judgment of Sinha. J., which quashes the interim award of the Tribunal dated the 9th May, 1956, and I also quash the interim award of the Tribunal and I further dismiss the cross-objection filed by the respondent firm and I direct that the Tribunal will determine the question whether the activities of the respondent firm constitute an industry within the meaning of Section 2(j) of the Industrial Disputes Act, in the light of the observations made in this judgment. It is desirable that the Tribunal will thereafter determine all the issues. To obviate protracted litigation the Tribunal should determine all the issues at the same time. Parties will be at liberty to adduce fresh evidence.

9. In the circumstances, the parties will pay and bear their own costs throughout.

Bachawat, J.

10. I agree.


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