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Nitin (Manager)     18 December 2012

Advocate office

I am running my office at market place. Do you all think it right that a labour officer has any competent right to close my office as it comes within the ambit of the rules of shops and establishment act? How far do you think that labour officer is empowered to close the advocate office without giving any prior intimation for the same ? How far you all the guys presumes it right that labour officer is empowered enough to close my office immediately if the local laws and rules prevailing in our area permits other shops to be closed. Do you all think that our legal profession has to obey all the rules and laws which are made for the other profession/shops prevailing in the local area ? Please reply soon!


Learning

 7 Replies

adv. rajeev ( rajoo ) (practicing advocate)     18 December 2012

Good question.  I think Advocate Office does not come under shops and establishments acts, which is applicable to only business.  Advocates are the professionals.

Let us wait for the answers of the learned members.

stanley (Freedom)     18 December 2012

The Shops and Establishments Act,1953 was enacted to provide statutory obligation and rights to employees and employers in the unorganised sector of employment, i.e. shops and establishments. It is applicable to all persons employed in an establishment with or without wages, except the members of the employer's family. It is a State legislation and each State has framed its own rules for the Act. The State Government can exempt, either permanently or for a specified period, any establishments from all or any provisions of this Act. 

You have not specified what are the grounds for closure of your  office and i myself have seen a no of advocates who have their offices in market places . You being a advocate should drag him to court  or send in a notice to the labour department and seek their reply on the grounds for closure of your office . 

Sumanth Nookala (Lawyer)     18 December 2012

In the context of gratuity to clerk in Lawyer's Office, Justice Rajiv Endlaw has declared that Shops Act is not applicable to Lawyer's Office(Atleast in Delhi).

 

Sh. Lalit Bhasin vs The Appellate Authority Under on 17 March, 2010

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) No.7206/2004

Kumar Doab (FIN)     18 December 2012

This is an interesting discussion.

It is mentioned in the query that the Inspector has not served any notice to register the office.

 

In V. Sasidharan v. Peter and Karunakar, (1984) 65 FJR 374 (SC), the question for decision before the Supreme Court was whether the office of a lawyer or of a firm of lawyers is or is not a commercial establishment within the meaning of the Kerala Shops and Commercial Establishments Act. The SC held that it does not require any strong argument to justify the conclusion that the office of a lawyer or a firm of lawyers is not a ‘shop’.

 

The Supreme Court has decided similarly for firm of solicitors  In National Union of Commercial Employees v. Industrial Tribunal, (1962) 22 FJR 25, and the Court held that the services rendered by a firm of solicitors were only in the individual capacity of the partners and very dependent on their professional equipment, knowledge and efficiency.

SE Act Bombay is clear:

 

 

(4) "Commercial establishment" means an establishment……….trade or profession ^and includes establishment of any

legal practitioner,

 

The position of law as it stood in respect of the Shops Act prior to the

amendment effected by Mah. Act  64  of  1977  was that the professional activity of

a legal practitioner could not be included in the definition of 'commercial

establishment' under section  2(4)  of the unamended Act. This exclusion was

made by the Courts on principle of interpretation. In  Sakharam Narayan

Kha^ekar v. City ofNagpur Corporation  1963  Mah.L.J.  533  the Court took the

view that a lawyer who carries on his profession as an advocate  is not an-'employer' within the meaning of S.2(7) of the Shops Act and he is not liable to

have any establishment registered under S.7 of the Act. An activity to be a

profession must be one carried on by an individual by his personal skill,

intelligence and dependent on individual characteristics and it is the personal

skill, intelligence, study, integrity which is a core of professional activity.. The very

concept of activity which can justly be called commercial activity, must imply

profession of law carried on by an advocate in any manner or to any extent

cannot be said to partake  о[ц  commercial character or to be a commercial

activity. The activity of an advocate carrying profession of law is radically

distinguished from any other commercial activity. The  го1еоД  an advocate in

practising and discharging his duties is participation  in administration justice,

which is a regal function of the state.

Amending Mah. Act  64  of  1977  sought to enlarge the definition of 'Commercial

establishment' by including the establishment of a legal practitioner, architect,

engineer, accountant, tax-consultant and certain other categories. But, there are

no common properties ot characteristics to be found on other commercial

establishments and the establishment of legal practitioner which have been

herded together. There is no rational basis for herding  them together and the

conclusion that they have been brought together arbitrarily i inescapable.

Therefore, the inclusion of the establishment of a legal practitioner in th context

of the connotation of commercial establishment does not answer the test  о

reasonableness and the inclusion would therefore, be violative of Art.   14  of the

Constitution of India also on the ground of unreasonableness, irrationality and

arbitrariness.

Consequently, the provisions of the amending Act (Mah. Act  64  of  1977)  insofar

as the included the establishment of a legal practitioner in the Bombay Shops  &

Establishment Act  1948  are struck down.  Narindra Keshrichand Fuladi  v.  The

State ofMaharashtra 1986 I CLR 15 (Вот Н.С.)

 

 

And

 

Bombay High Court

Sakharam Narayan Kherdekar vs City Of Nagpur Corporation And ...

 

 

“37. We therefore hold that the petitioner or others like him are not liable to have any establishment registered under the Bombay Shops and Establishments Act in pursuance of a like notice from respondent No. 2. As the petitioner and other Advocates apprehend that they run the risk of prosecution for failure to comply with the provisions of section 7 read with section 52 of tie Act we direct that the respondents be prohibited from enforcing any of the provisions of the Act against the petitioner and other Advocates. The petition is allowed and Rule made absolute but there will be no order as to costs.”

 

Yu may also look into :

Notification

No.F.28(2)/88/IMP/LC/Lab/2625-32 dated 30th September, 1988

 

 

 

 

 


Attached File : 1036723327 advocate solicitor office is not covered under se act sc judgement v. sasidharan vs peter & karunakar & ors on 23 august, 1984.pdf, 1036723327 sakharam narayan kherdekar vs city of nagpur corporation and ... on 25 september, 1962.pdf downloaded: 508 times

Kumar Doab (FIN)     18 December 2012

Attached SE Act Bombay


Attached File : 1036723327 the bombay shops establishments act.pdf downloaded: 197 times

KCS Kutty, Pune (FACULTY)     19 December 2012

If you want a definite answer ask a definite question. Pl read the definition of "Commercial Establishment" in your State's Shop and Commercial Establishment Act.  Since you have not mentioned the State, in which your office is located, a definite answer cannot be given.  

KCS Kutty, Pune (FACULTY)     19 December 2012

If it is in Maharashtra, the reply given by Shri Kumar Doab is applicable.  Thanks to Kumar Doab sir


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