CA firm is not a shop under Bombay Shops and Establishments Act
August, 15th 2006
A 30-year-old battle later chartered accountants (CAs) in Maharashtra have regained their position as "learned professionals'' on the same footing as the three traditional professions-church, medicine and law. Significantly, CA firms would no longer have to abide by the labour laws that are part of the Bombay Shops and Establishments Act.
In a landmark order, the Bombay high court has held that the office of a chartered accountant was not a "business and commercial'' establishment. A division bench of Justice S B Mhase and Justice S R Sathe struck down as "unconstitutional'' sections of the Bombay Shops and Establishment Act that included CAs within the definition of commercial establishments.
The court's orders came on a petition filed by one of the city's top CA firms, Ms A F Ferguson and Company, and six of its partners. Senior advocate Jamshed Cama had challenged the constitutional validity of the amendment in the Act in 1977, which brought CA firms within its purview.
Cama contended that the CA firm was not involved in commercial activities but a profession that involved intellectual skill and manual skill controlled by intellectual skill. It did not deal with production or sale of commodities.
Associate Advocate General Ashutosh Kumbhakoni, representing the state, contended that the CA firms had many employees and was essentially a commercial venture.
The major impact of the judgment would be that CA firms would no longer have to abide by the labour laws that are part of the Act. The Bombay Shops and Establishments Act provides for specific work hours and holidays for employees as well as health and safety measures. The Act laid down that employees working in such establishments would not work for more than eight hours in a day with a recess of one hour and or more than 48 hours in a week.
The judges observed that CA firms were being wrongly equated with shops. "The working hours of the office of the chartered accountant cannot be regarded like that of a shop or establishment,'' said the judges. "It will be difficult to maintain relations and entertain clients by the CAs.''
The judges referred to a 1964 judgment that addressed similar questions and held that the three traditional professions had to change with time and new developments in trade, commerce and industry require a new class of professionals-chartered accountants.