Judgment R.A.Sharma, J. 1. Smt. Rudh Sore, (respondent No, 2 to this appeal) was a teacher in Seventh Day Advantists School, Baragoan, District Ranchi (hereinafter referred to as the school) established and managed by the Managing Committee of the East India Section of Seventh Day Advantists, Morabadi, District Ranchi. Her service was terminated with effect from 25.8.1980 by the Managing Committee. She thereafter filed an application under Sec. 26(2) of the Bihar Shops and Establishments Act, 1953, (hereinafter referred to as the Act) before the labour court, Ranchi, challenging the said order of termination of her service. Along with her application she also moved an application for condonation of delay in filing her claim. The labour court condoned the delay and allowed her application declaring that the order terminating her service passed by the Managing Committee is illegal having been passed without any reasonable cause in utter violation of the relevant rules framed by the Managing Committee itself. The labour court accordingly directed her reinstatement in service with full back wages and continuity in service. Being aggrieved by the above order of the labour court, the Managing Committee filed a writ petition (C.W.J.C. No. 1307/82 (R) which has been dismissed by the learned Single Judge, vide judgment dated 23rd December, 1988. Not being satisfied with the judgment of the learned Single Judge, it has now filed this appeal under clause 10 of the Letters Patent. 2. The learned counsel for the appellants has made two submissions in support of the appeal namely, (i) the Managing Committee and the school run by it are not establishment within the meaning of the Act and, therefore, the application filed by the respondent No. 2 before the labour court was not maintainable and (ii) in any case the appellants had terminated her service after giving salary for a period of three months in accordance with the service rule applicable and even if the school is treated to be an establishment within the meaning of the Act the order of termination of service was not liable to be interfered with by the labour court. The learned counsel for the respondent No. 2 has disputed the said submissions. The learned counsel for the respondent No. 2 has disputed the said submissions. It has further been contended by him that the very same judgment which has been impugned in this appeal has been approved in Beldih Club, Jamshedpur V/s. The Presiding Officer, Labour Court, Jamshedpur and others, 1991 (1) PLJR 81, wherein it was cited as a precedent. 3. The Act has been enacted "in order to provide for regulation or conditions of work and employment in shops and other establishments and for certain other purposes". Sec. 2(6) defines establishment as under : "2(6) "establishment means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade, or profession and includes : (i) administrative or clerical service appertaining to such establishment; (ii) a shop, restaurant, residential hotel, eating house, theatre or any place of public amusement or entertainment; and (iii) such other establishment as the State Government may, by notification, declare to be an establishment to which the Act applies; but does not include a motor transport undertaking as defined in clause (g) of Sec. 2 of the Motor Transport Workers Act, 1961 (27 of 1961)." Shop has been defined under Sec. 2(16) as follows : "2(16) "Shop" means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers and includes an office, store-room, godown, warehouse and work place, whether in the same premises or elsewhere used in connection with such sales or services, but does not include a restaurant, a residential hotel, eating house, theatre or other place of public amusement or entertainment." Sec. 26 of the Act under which the respondent No. 2 filed her application before the labour court being relevant is also reproduced below : "26. Notice of the dismissed or discharge. Notice of the dismissed or discharge. (1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months except for a reasonable cause and after giving such employee at least one months notice or one months wages in lieu of such notice : Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose : Provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above. (2) Every employee, dismissed or discharged or whose employment is otherwise terminated, may make, a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on one or more of the following grounds namely : (i) there was no reasonable cause for dispensing with his service; or (ii) no notice was served on him as required by sub- section (1); or (iii) he has not guilty of any misconduct as held by the employer; or (iv) no compensation as prescribed in Sub-sec. (1) was paid to him before, dispensing with his service. (3) Notwithstanding anything contained in Sub-sec. (2) where the order of dismissal or discharge was received by an employee at any time before the commencement of the Bihar Shops and Establishment (Amendment) Act, 1959, he may make a complaint in writing in the prescribed manner before a prescribed authority within six days of the commencement of the said Act : Provided that such complaints, if any, pending before an authority prescribed prior to the commencement of the said Act shall be deemed to have been duly filed before the authority prescribed after such commencement and the said authority shall dispose of the same in accordance with the provisions of this Act. (4) The prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the application within the prescribed time. (5) (a) The prescribed authority shall cause notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons therefor. (b) In passing such orders the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both. (6) The decision of the prescribed authority shall be final and binding on both the employee and employer." 4. There is no dispute between the parties that the school is not a shop. Whether is an establishment within the meaning of the Act is the question regarding which they have different stands. An undertaking/institution can only be treated as establishment within the meaning of Sec. 2(6) of the Act if it carries on any business, trade or profession or any work in connection with, or incidental or ancillary to such business, trade or profession. The Act, thus, applies to commercial/business establishments. 5. In Dr. Devendra M. Surti V/s. State of Gujarat. AIR 1969 SC 63 , the Apex Court held that a Doctors dispensary is not a commercial establishment within the meaning of the Bombay Shops and Establishment Act, 1948, unless the professional activities of the Doctor are of commercial nature. In this connection, relevant passage from the aforesaid decision is reproduced below : "6. In the present case, certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition of Sec. 2(4) of the Act, though their normal import may be much wider. We are, therefore, of opinion that the professional establishment of a doctor cannot come within the definition of Sec. 2(4) of the Act unless the activity carried on was also commercial in character.... 7. It is therefore clear that a professional activity must be an activity carried on by an individual by his personal skill and intelligence. We are, therefore, of opinion that the professional establishment of a doctor cannot come within the definition of Sec. 2(4) of the Act unless the activity carried on was also commercial in character.... 7. It is therefore clear that a professional activity must be an activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction therefore between a professional activity and an activity of a commercial character and unless the profession carried on by the appellant also partakes of the character of a commercial nature, the appellant cannot fall within he ambit of Sec. 2(4) of the Act......" The definition of commercial establishment contained in the said Bombay Act is somewhat similar to that contained in the Act. 6 In Chief Commissioner, Delhi and others V/s. Federation of Indian Chambers of Commerce and Industry, New Delhi and others, AIR 1974 SC 1527 , the question before the Apex Court was whether the Federation of India Chambers of Commerce and Industry is a commercial establishment within the meaning of Delhi Shops and Establishments Act. After analysing the relevant case law, work and activities of the Federation, the Apex Court ruled that it is a commercial establishment. 7. In V. Sasidharan V/s. Peter and Karunakar and Ors., AIR 1984 SC 1700 , the issue before the Apex Court was whether the lawyers office or the office of a firm of lawyers is a commercial establishment under Kerala Shops and Commercial Establishment Act. The Court answered the question in negative holding that lawyers office is not a commercial establishment. 8. The Division Bench of this Court in Beldih Club V/s. The Presiding Officer, (supra) held that extra commercial activity cannot be said to be business under the Act. In this connection, it was held as under : "60. However, the definition of an establishment or a commercial establishment under the Shops and Establishment Act of different States stand completely on a different footing. In terms of the definition of the word establishment as contained in Sec. 2(6) of the said Act, a systematic activity for rendering service by an organisation by itself, may not be an establishment unless a business, trade or profession is carried on therein." It was further held as follows : "62. In terms of the definition of the word establishment as contained in Sec. 2(6) of the said Act, a systematic activity for rendering service by an organisation by itself, may not be an establishment unless a business, trade or profession is carried on therein." It was further held as follows : "62. From a plain reading of Sec. 2(6) of the said Act, it is evident that the definition of the word establishment is not so wide, so as to bring it within its purview, an activity which is not a commercial one." In paragraph 66 of the judgment, this Court cited with approval the Chairman Governing, Body, S.H.V.M. Polytechnic V/s. Government of Andhra Pradesh and Ors., 1989 (2) LLJ 95 wherein it has been laid down that the educational institution is not a commercial establishment. 9. In Unni Krishnan J.P. and Ors. V/s. State of Andhra Pradesh and Ors., (1993) 1 SCC 645 , the question involved was whether establishment of educational institutions and imparting education are trade, business or profession. The Apex Court answered the question in negative holding that establishment of educational institution and imparting education are neither a business, nor trade and they are also not a profession. Hon ble Mr. Justice Madan, in paragraph No. 63 of the judgment has laid down in this connection as follows : "63. In each of these cases, depending upon the statute either "occupation" or "business" has come to be defined. Certainly, it cannot be contended that establishment of an education institution would be "business". Nor again, could that be called trade since no trading activities are carried on. Equally, it is not a profession. It is one thing to say that teaching is a profession but, it is a totally different thing to urge that establishment of an educational institution would be profession........" In this connection, Hon ble Jivan Reddy, J. held as under : "197. While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any "occupation" within the meaning of Article 19(1)(g), perhaps, it is we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. that "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however, wide may be the denotation of the two latter words......" (See University of Delhi/33) the Parliament too has manifested its intention repeatedly (by enacting the U.G.C. Act, I.M.C. Act and A.I.C.T.E. Act) that commercialization of education is not permissible and that no person shall be allowed to steal a march over a more meritorious candidate because of his economic power......" "198. We are, therefore, of the opinion, adopting the line of reasoning in State of Bombay V/s. R.M.D. Chamar-baugwala, that imparting education cannot be treated as a trade of business. Education cannot be allowed to be con- verted into commerce nor can the petitioners seek to obtain the said result by relying, upon the wider meaning of occupation.........." It is, thus, settled that imparting education is neither a business, nor a trade and educational institutions while imparting education do not carry on any business, trade or profession. Such institutions cannot be declared as establishment unless it is pleaded and proved that they are, in fact, carrying on business, trade or profession. 10. Before the Labour Court the case of the appellants was that the school and the Society which runs it are charitable and religious institutions not carrying on business, trade or profession and the members of the staff are voluntarily attracted towards their pious objectives. The Labour Court rejected their case holding as under : "7. By quoting these excepts from the Educational Code (Ext. F) it was contended by the learned lawyer for the O.P. that the S.D.A. is a Charitable Institution. The Labour Court rejected their case holding as under : "7. By quoting these excepts from the Educational Code (Ext. F) it was contended by the learned lawyer for the O.P. that the S.D.A. is a Charitable Institution. But it has been laid down in AIR 1978 SC 548 , at para 130, that "noble objectives, pious proposes, spiritual foundations, and developmental projects are no reasons not to implicate these institutions as industries. 8. It was contended by the learned lawyer for the management that the aforesaid requirements show that all the members of the staff are voluntarily attracted towards the pious objective of S.D.A. But, in my opinion, such an inference is not reasonable from the aforesaid particulars, rather these facts only go tc show that the management has restricted employment opportunities to followers of a particular religious faith and in this way, it is a minority institution, but it does not destroy the economic relationship between the employer and the employee". The Labour Court although rejected the contention of the appellants and declared their school as establishment under the Act but it did not record any specific finding on the question as to whether they are carrying on any trade, business or profession in the school. The appellants case was rejected by the Labour Court relying primarily on the Apex Courts decision in Bangalore Water Supply and Sewerage Board V/s. R. Rajappa, AIR 1978 SC 548 , which dealt with altogether a different question. The Apex Court in Unni Krishnan V/s. State of Andhra Pradesh (supra), while holding that establishment of educational institutions and imparting education therein is not a trade, business or profession, has declined to apply the Bangalore Water Supply case with observations that it dealt with a different question namely the meaning of the word "industry" under the Industrial Disputes Act and can have no application in a different context. Similarly, merely because the appellants pay salary to the members of the staff of the school and there is economic relationship between them, the school cannot be treated as an establishment under the Act. Similarly, merely because the appellants pay salary to the members of the staff of the school and there is economic relationship between them, the school cannot be treated as an establishment under the Act. It is not the economic relationship between the employer and the employees which is the determining factor in order to find out whether the school is an establishment under the Act because the employees have to be paid their wages even the Act because the employees have to be paid their wages even in the institutions which do not carry on any trade, or business. What is relevant is whether in or through the school any business or trade is being carried on. There is no such specific finding. Inference drawn to that effect on the basis of erroneous assumption cannot be sustained. 11. The learned Single Judge while holding the school as an establishment under the Act relied upon the following two facts/aspects : (1) As the school earns economic gains by way of tuition fee from the students which is spent for the benefit of the deserving students who cannot afford to pay education, lodging and boarding, its activity is of trading/business nature. The relevant finding recorded by the learned Single Judge in this regard is as follows : ".......It is not in dispute that a large proportion of the students pay tuition fee to the school. It is contended that a large number of students are also aided by the school in the pursuit of education. Obviously, therefore, the school has an economic objective in admitting students to school on payment of fee. The economic gain that accrues to the Institution by way of tuition fee is then ploughed back for the benefit of deserving students who cannot afford to pay for education. Whatever be the objectives of the Institution, the activity Is certainly a trading or business activity; more in the nature of business." and (ii) the school has employed teachers and the relationship of employer and employee is regulated more or less in the same manner as is done in the normal trading or business establishment and its activities are also organized in the same manner in which a trade or business is generally organized. It was accordingly held that it renders material help to the community with the help of the employees. 12. It was accordingly held that it renders material help to the community with the help of the employees. 12. Merely because an educational institution charges tuition fee from the students it cannot be declared as an establishment under the Act unless it is found that in fact, it is carrying on business or trade. In Unni Krishnan case, in paragraph Nos. 94 to 96, the Apex Court while dealing with this aspect observed that it cannot be held that education must be free of cost. In this connection, Hon ble B.P. Jivan Reddy, J. laid down as follows : "195. Private educational institutions may be aided as well as un-aided. Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and/or recognising/affiliating authorities in the matter or recruitment of teachers and staff their conditions of service, syllabus, standard of teaching and so on. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alone - subject to any reservations made under Article 15. They shall not be entitled to charge any fees higher than what is charged in Governmental Institutions for similar courses. These are and shall be understood to be the conditions of grant of aid. The reason is simple : public funds, when given as grant - and not as loan - carry the public character wherever they go; public funds cannot be donated for private purposes........ 196. So far as unaided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in Governmental Institutions. If they do so voluntarily, it is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resources - and the main source, apart from donations/charities, if any, can only be the fees collected from the students. It is here that the concepts of self-financing educational institutions and cost-based educational institutions come in.,......" The Supreme Court in Unni Krishnan case, inspite of the fact that the educational institutions charge tuition fee, held that educational institutions do not carry on any trade or business. What was condemned was cavitation fee. It is here that the concepts of self-financing educational institutions and cost-based educational institutions come in.,......" The Supreme Court in Unni Krishnan case, inspite of the fact that the educational institutions charge tuition fee, held that educational institutions do not carry on any trade or business. What was condemned was cavitation fee. The view of the learned Single Judge that the school is an establishment because it charges fee from the students cannot be sustained. 13. Similarly, merely because an institution employs teachers, regulates their conditions of service and pay them salary, it cannot be held that it is an establishment under the Act because If it employs teachers, it has to pay their salary and provide for regulation of their service. Running of an educational institution in a scientific and efficient manner like modern organization cannot convert it into a commercial establishment unless it is found that it carries on trade or business. In this connection, it is appropriate to quote what the Division Bench of this Court in Beldih Club, Jamshedpur V/s. The Presiding Officer, Labour Court, Jamshedpur and others, 1991 (1) PLJR 81 (supra) has laid down : "6. In terms of the definition of the word establishment as contained in Sec. 2(6) of the said Act, a systematic activity for rendering service by an organization by itself, may not be an establishment unless a business, trade or profession is carried on therein." 14. The school does not render any material service to the community with the help of the employees in the sense in which it is done by trading and business organizations. It imparts education and does not carry on any trade business or profession. Its objective is carrying on welfare activities in the human societies in the field of education, health and hygiene. Majority of the students get free food, clothing and the education either wholly or partly and the school is run on donations from the people who have faith in the system. Such activities do not partake the character of trade or business. The finding to the contrary contained in the impugned judgment, being based on unwarranted assumption, cannot be sustained. 15. The submission of the learned counsel for the respondent to the effect that impugned judgment has been approved by another Division Bench in Beldih Club case wherein it was cited as a precedent is also liable to be rejected. The finding to the contrary contained in the impugned judgment, being based on unwarranted assumption, cannot be sustained. 15. The submission of the learned counsel for the respondent to the effect that impugned judgment has been approved by another Division Bench in Beldih Club case wherein it was cited as a precedent is also liable to be rejected. In Beldih Club case the impugned judgment was not approved but in act, was distinguished in view of the finding recorded there by the learned Single Judge to the effect that the school is carrying on commercial/business activity. But for that finding the impugned judgment would have been overruled in Beldih Club case. That finding having been overruled by us, it cannot be said that the school is carrying on any commercial or business activity. 16. The school, not being an establishment within the meaning of the Act, the Labour Court had no jurisdiction to interfere with the order terminating the services of the respondent No. 2. 17. As we are allowing this appeal on the first submission of the learned counsel for the appellants, it is not necessary to deal with his second submission. 18. This appeal is allowed. The impugned judgment of the learned Single Judge is set aside. The order of the Labour Court is also quashed. The writ petition is accordingly allowed. No costs. A.K.Prasad, J. 19 I, agree.