L M CHITALE Vs. COMMISSIONER OF LABOUR

JUDGEMENT

(1.) THESE petitions under Article 226 of the Constitution pray for the issue of writs of certiorari to call for the records of the Commissioner of Labour and to quash his order dated 27th October 1960, and the order of the Additional Commissioner for workmen's Compensation, dated the 26th April 1961 respectively. The fasts are briefly as below.

(2.) THE petitioner in W. P. No. 602 of 1961 is a partner of a registered firm of chartered Architects. The firm of the petitioner terminated the services of one T. M. Lingam, an employee, after issuing due notice to him. Though the termination of his service was not objected to by that employee, he subsequently preferred an appeal under the Madras Shops and Establishments Act before the Commissioner for Workmen's Compensation for payment of gratuity or other amounts, or, in the alternative, for reinstatement. The petitioner objected to the proceedings contending that as the firm was carrying on a profession of consulting architects, it could not be classified as a shop or an establishment within the meaning of the madras Shops and Establishments Act. Upon this the question came before the Commissioner of Labour under Section 51 of that Act. The Commissioner held in order impugned that the' firm is not a commercial establishment but is a shop within the meaning of Section 2 [16) of the Act. It is contended by the petitioner that the partners of the firm are carrying on' the profession of consulting architects, the partners being members of the royal Institute of British Architects as well as its Indian counterpart, the Indian institute of Architects. It may be stated that the senior partner died and the present petitioner, Sri S. L. Chitale, is the sole surviving partner. According to the petitioner, the membership of the above institute is confined only to qualified architects who have to pass an examination conducted by the Royal Institute. Only persons with certain specified qualifications could become members of the Indian institute of Architects. Such a person should possess certain specified qualifications evidenced by diplomas granted by an authorised body. It is further stated that as a member of these institutes, the petitioner is governed by certain exacting codes of professional conduct very much on the same lines as those governing advocates and auditors. A member is prevented from carrying on a business as auctioneers or estate agents or trading in materials used in connection with the building industry or to advertise or offer professional services or to accept a position in which his interest is in conflict with his professional duty. There are prescribed scales of professional charges. He is to function as an arbitrator between the building owner and the contractor, interpret the conditions of the contract between the two and generally to prepare plans, estimates and the like. His employment as an architect is terminable by his client. A long list of the duties which a consulting architect is bound to perform for his client are set out, which, according to the petitioner, are of a highly technical nature. In these circumstances, the petitioner complains that the determination by the Commissioner that the office of a consulting architect is a shop wherein services are rendered to customers is wholly incorrect. It is claimed that an architect's client cannot be termed a customer and that the professional services rendered by the architect cannot be equated to a person carrying on a commercial business in a shop. It is for these reasons that the petitioner claims that his status as a person carrying on a profession has to be equated to that of a doctor or a lawyer or an auditor.

(3.) IN W. P. No. 602 of 1961, the order Impugned Is that of the Commissioner of labour made under Section 51 of the Madras Shops and Establishments Act. This provision empowers the Commissioner of Labour to decide the question whether all or any of the provisions of the Act apply to an establishment or to a person employed therein, and it was on the application of the petitioner for a declaration that the petitioner's office was not an establishment coming within the purview of the Act that the Commissioner rendered the decision in question. In W. P. No. 668 of 1961, the order of the Additional Commissioner for Workmen's compensation is impugned. The facts relevant to this are that the petitioner employed one Lingam as an engineer on a monthly salary of Rs. 300. It was found that the employee did not come up to the expectations of the petitioner in so far as the performance of the technical services as an engineer are concerned. Accordingly, by a notice dated the 1st May 1959, the services of Lingar were terminated. Lingam accepted the notice without any demur. On the 30th May 1959 he accepted the termination of service and asked to be paid compensation admissible under the Industrial Disputes Act by payment of a lump sum covering leave salary and service gratuity. With effect from the 1st of June 1959, Lingam ceased to attend office. About a month later, he filed an appeal before the Additional Commissioner for Workmen's compensation. Before that authority, the petitioner contended that no provision of the Madras Shops and Establishments Act applies to the petitioner's firm and further that Lingam having accepted the notice of termination, and having voluntarily stopped attending the office, could not invoke the jurisdiction of the additional Commissioner. It was in these circumstances that the Additional commissioner directed the petitioner to approach the Commissioner of Labour under Section 51 of the Act. Consequent upon the order of the Commissioner holding against the petitioner's contention, the Additional Commissioner deter' mined in the proceedings under Section 41 (2) before him that the termination of the services of Lingam was without reasonable cause.