JUDGMENT : Bhargav D. Karia, J. 1. Heard learned advocate Mr.Palak Thakkar for the appellant/applicant and learned advocate Ms.Kriti Pathak for the respondents in First Appeal No.1022 of 2023 as well as learned advocate Mr.A.V.Nair for the appellant ESI Corporation and learned Senior Advocate Mr.Saurabh Soparkar with learned advocate Mr.Jwalit Soneji for the respondent No.1 in First Appeal No.2588 of 2023. 2.1. First Appeal No.1022 of 2023 is filed challenging the judgment and order dated 2nd January, 2023 passed by Employees State Insurance Court, Ahmedabad in ESI Application No.73 of 2016 whereby, the order passed under Sections 45A and 45AA of the Employees State Insurance Corporation Act, 1948 (for short ‘the ESI Act’) was quashed and set aside by remanding the matter back to the appellate authority to re-decide the matter by giving an opportunity of hearing to the appellant. 2.2. First Appeal No.2588 of 2023 is filed by the ESI Corporation challenging the Judgment and Order dated 12.05.2022 passed by the ESI Court in ESI Application No.40 of 2015 whereby the communication dated 12.03.2015 was set aside holding that the provisions of the ESI Act are not applicable to the firm of a Chartered Accountant. 2.3. As common question arises in both the appeals as to whether provisions of ESI Act are applicable to the firm of a Chartered Accountant or not, the same were heard analogously. 2.4. In First Appeal No.1022 of 2023, though the ESI Court has in fact held that the provisions of the Act are not applicable to the firm of a Chartered Accountant, the matter is remanded back to the appellate authority to decide a fresh. 3. Learned advocate Mr. Palak Thakkar for the appellant-Chartered Accountant firm submitted that he supports the reasoning given by the Court below and only assail the impugned judgment and order so far as it has remanded the matter back to the appellate authority on the ground of violation of the principle of natural justice. 3.1 It was submitted that the Court below ought not to have remanded the matter back to the appellate authority when it has held on merits in favour of the appellant. Learned advocate Mr. 3.1 It was submitted that the Court below ought not to have remanded the matter back to the appellate authority when it has held on merits in favour of the appellant. Learned advocate Mr. Palak Thakkar for the appellant-Chartered Accountant firm submitted that after considering the entire case law on the subject and after considering the evidences on record, it was held by the ESI Court that the ESI Corporation has failed to prove that the activity carried out by the appellant is a shop or commercial establishment and order of assessment as well as the recovery was not according to the law and in view of such findings, the matter ought not to have been remanded back to the appellate authority on the ground of violation the principles of natural justice as the findings in the impugned order would be binding upon the appellate authority even otherwise. 4. Learned advocate Ms. Kriti S. Pathak appearing for the respondent- ESI Corporation in First Appeal No.1022 of 2023 submitted on merits of the case though no cross-objection is filed with regard to the finding of the issue no.4 held in favour of the appellant by the Court below and assailed such findings on merits and therefore, this Court is of the opinion that such submissions made by the learned advocate for the respondent-ESI Corporation so far as the First Appeal No.1022 of 2023 is concerned are not considered on merits in absence of any challenge to the findings arrived at by the Court below to the effect that a firm of the Chartered Accountant cannot be a shop or a commercial establishment as per the provisions of the law as per the settled legal position after considering the decided cases in favour of the appellant-Chartered Accountant firm. 5. The submissions made by learned advocate Ms. Pathak however would be taken into consideration while dealing with the First Appeal No.2588 of 2023 filed by the ESI Corporation challenging the Judgment and Order of the Court below allowing the application filed by the respondent-Chartered Accountant firm holding that the provisions of the ESI Act are not applicable to the firm of a Chartered Accountant as the same is neither a shop nor a commercial establishment. 6. 6. In view of cross-appeals filed by the firm of a Chartered Accountant being aggrieved by the remand of the matter to the appellate authority and in case of another Chartered Accountant, the ESI Corporation challenging the order of the ESI Court holding that the provisions of the Act are not applicable to the firm of a Chartered Accountant, both the appeals are therefore disposed of by this common judgment. 7.1. Learned advocate Mr. A.V.Nair appearing for the appellant ESI Corporation in First Appeal No.2588 of 2023 submitted that a Notification is issued by the Government Of Gujarat on 3rd January, 2012 to include under Sub-section (5) of Section 1 of the Employees State Insurance Act, 1948 in consultation with the Employees State Insurance Corporation and with the approval of the Central Government to extend the provisions of the Act to the classes of establishment specified in column No.1 situated within the area specified in column 2 of the schedule annexed to the Notification in the Gujarat State. The Schedule to the Notification reads as under : “SCHEDULE Description of Establishment Area in which the establishment are situated. 1. 2. Following areas in the state of Gujarat where the provisions of Chapter IV and V of the Employees State Insurance Act, 1948 have already been brought into force under sub-section (3) of Section 1 of the Employees State Insurance Act, 1948. 1. Any premises including the precincts thereof wherein ten or more persons but in any case less then twenty persons are employed or were employed for wages on any day of the proceeding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power of is ordinarily so carried on but excluding a mine subject to the operation of the Minces Act, 1952 (35 of 1952 or a Railway running shed or an establishment which is exclusively engaged in any of the manufacturing process specified in clause (12) of Section 2 of the Employees State Insurance Act, 1948 (34 of 1948) I. 1. Village of Saijpur Bogha, Naroda, Odhav, Kali and Ranip of City Taluka of Ahmedanad District. 2. Village of Kathwada and Ramol of Daskroi Taluka of Ahmedabad Dist. 3. Thakkarbapa Nagar area, in village Nicol, Taluka City, Dist.A’bad 4. Village Narol Taluka City, Dist.Ahmedabad 5. Village of Saijpur Bogha, Naroda, Odhav, Kali and Ranip of City Taluka of Ahmedanad District. 2. Village of Kathwada and Ramol of Daskroi Taluka of Ahmedabad Dist. 3. Thakkarbapa Nagar area, in village Nicol, Taluka City, Dist.A’bad 4. Village Narol Taluka City, Dist.Ahmedabad 5. Extended Municipal limits of Ahmedabad Municipal Corporation comprising Village Danilimada in City Taluka Dist.A’bad. II. Village Chandkheda, Taluka and Dist.Gandhinagar. III. Following villages in Taluka and District Baroda in the State of Gujarat namely :- 1. Maneja 2. Atladr 3. Jambuwa 4. The areas comprised within the Revenue village of Nandesari and the notified area of Gujarat Industrial Developement Corporation Nandesari in Baroda, Taluka and Distrcit Baroda. 5. The areas within the Revenue villages of Kalali, Tarsali, Tandalja and Vadsar in Taluka and District Baroda. 6. Extended Municipal limits of Baroda comprising the following Revenue Areas. 1. Vasna Saiyed. 2. Gotri 3. Makarpura in Dist.Baroda. IV. Municipal Limits of Bhavnagar Town Taluka and District Bhavnagar. V. (1) Municipal Limit of Cambay Town Taluka Cambay, Dist. Kaira. (2) Kansari Village of Cambay Taluka Dist.Kaira (3) Shakarpur Village of Cambay Taluka Dist.Kaira VI. The areas comprised within the Municipal Limits of Dhrangadhra. VII.(1) Area within Municipal limits of Jamnagar Town, Taluka and Dist.Jamnagar. (2) Area of Jamnagar Town out side the Municipal limits and known as Jamnagar (SIM) of Jamnagar, Taluka and Dist. Jamnagar. (3) Area of Bedi Village, Taluka and Dist.Jamnagar. VIII.Area comprised within the Municipal limits of Junagadh Town and Revenue Villages of Dholtpur and Sabalpur in Dist:Junagadh. IX. Municipal limits of Kalol Town, Taluka Kalol, Dist.Mehsana. X. Areas within the Municipal limits and Revenue limits of Mehsana Town, Dist.Mehsana and the GramPanchyat and Revenue limit of Village Palavasna, Nagalpur, Dediyasan and Bhobhasan of Mehsana Taluka Dist.Mehsana. XI. (1) Muncipal limits of Nadiad Taluka, Nadiad, Dist.Kaira. (2) Dabhan Village of Nadiad Taluka Dist: Kaira. (3) Kamla Village of Nadiad Taluka, Dist:Kaira XII. The areas comprised within the Municipal limits and Revenue limit of Navsari Town and within the panchayat and Revenue limit of village Vejalpur and Kabilpore, Dist: Valsad. XIII. Areas within the Municipal limits of Petlad, Taluka Petlad, Dist. Kaira. XIV. 1. Area within the Municipal limit of Rajkot Town. 2. Paddok Area near Rajkot (Survey No.134) in Taluka and Dist. Rajkot. 3. Anandpur (Navagam) Village in Taluka and Dist.Rajkot. XV. The following areas in the state of Gujarat namely :- 1. Nanavarchha Village 2. XIII. Areas within the Municipal limits of Petlad, Taluka Petlad, Dist. Kaira. XIV. 1. Area within the Municipal limit of Rajkot Town. 2. Paddok Area near Rajkot (Survey No.134) in Taluka and Dist. Rajkot. 3. Anandpur (Navagam) Village in Taluka and Dist.Rajkot. XV. The following areas in the state of Gujarat namely :- 1. Nanavarchha Village 2. Adajan village 3. Kapadra village 4. Karanj village 5. Utran village 6. Udhana village 7. Katargam village (1 to 7-Chorasi Taluka Dist.Surat) 8. Bhestan village of Chorasi Taluka Dist. Surat 9. Village Pandesara Bhestan, Taluka Chorasi Dist.Surat 10. Tunki village. 11. Singapore village 12. Dabhalivillage 13. Ved village (10 to 13-Chorasi Taluka Dist.Surat) 14. Phulpada in Taluka Chorasi Dist. Surat XVI. 1. Municipal limits of Porbandar Dist.Junagadh, 2. Chhaya village of Porbandar Taluka Dist. Junagadh. 3. Dharampur Taluka Ranavav, Dist.Junagadh. XVII. The areas within the Municipal limits of Surendranagar, Jorwarnagar and ratanpur Joint Municipalities, Revenue & Municipal limits of Wadhwan City and the Revenue and Gram Panchayat limits of village Dudhrej, Taluka: Wadhwan, Dist.Surendranagar. XVIII. The areas comprosed within the Nagar Panchayat and Revenue limits of Thangadhand in the Grampanchayat and Revenue limits of Thangadh and in the Grampanchayat and Revenue limit of village Amarpar and Janwali of Chotila Taluka Dist.Surendranagar. XIX. The areas comprised within the notified area of Gujarat Industrial Development Corporation of Vapi, Taluka Purai Dist. Valsad. XX. The area comprised within the Municipal limits of Viramgam Town and Dist:Ahmedabad. XXI. 1. The areas within the Municipal limits of Visnagar Town and the Gram-panchayat and Revenue limits of village Kansa Taluka Visnagar Dist.Mehsana. 2. The areas comprised within the Revenue limits of Visnagar Town Taluka Visnagar Dist. Mehsana. XXII. The area within the limits of Wankaner Municipality in Rajkot Dist. in the state of Gujarat. XXIII. Village Hasanpur, Taluka Wankaner Dist. Rajkot. 2. Any premises including precincts thereof, whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but excluding a mine subject to the operation of the Minces Act, 1952 or a Railway running shed or an establishment which is exclusively engaged in any of the manufacturing processes specified in clause (10) of Section 2 of the Employees State Insurance Act, 1948 (34 of 1948). 3.A. The following establishments wherein twenty or more persons are employed or were employed for wages or any day of the proceeding twelve months, namely :- i. Hotels ii. Restaurants iii. Shops iv. Road Motor Transport establishments. v. Cinema including preview theatres. vi. Newspapers establishments as defined in clause (d) of Section (2) of the working Journalists condition of service and Misc. Provision Act, 1955. (the areas indicated against sr. no. I to XXIII as above) B. The following establishments wherein twenty or more persons are employed or were employed for wages on any day of the proceedings twelve month namely :- i. Road Motor Transport establishments. ii. Cinemas including iii. Newspaper establishments as defined in clause(d) of Section 2 of the working Journalists. (condition of service and Misc. Provisions, Act, 1955) i. Areas within the limits of A’bad Muni. Corpn. ii. Areas within the limits of Baroda Muni. Corpn. iii. Areas within the limits of Surat Muni. Corpn.” 7.2. Referring to the above Schedule, it was submitted that the establishment where ten or more persons are employed or were employed on the day of preceding twelve months, includes shops, hotels, restaurants etc. For the purpose to explain as to what includes the “Shop”, reliance was placed on a definition of Shop in the Bombay Shops and Establishment Act, 1948 applicable in the State of Gujarat which reads as under: “Definitions:- (27) "Shop" means any premises where goods are sold, either by retail, wholesale or where services are rendered to customers, and includes an office a store-room, godown, warehouse or work place, whether in the same premises or otherwise, [mainly used] in connection with such trade or business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment; ” 7.3. Referring to the aforesaid definition, it was submitted that the ‘Shop’ means premises where services are rendered to customers and includes an Office and therefore Office of a Chartered Accountant which provides service to its customers would be considered as a Shop and accordingly, as per the Notification issued by the State of Gujarat, the Office of the Chartered Accountant would be an establishment and therefore, the provisions of the ESI Act would be applicable to the Office of the Chartered Accountant. 7.4. 7.4. In support of such submissions, reliance was on the decision of the Hon’ble Supreme Court reported in AIR 1994 Supreme Court Page 1154 in case of Employees State Insurance Corporation Versus R.K.Swamy and Others. Learned advocate Mr.A.V.Nair submitted that the Hon’ble Supreme Court in the facts of the said case after relying upon the decision of the M/s.Hindu Jea Band Jaipur Versus State of Rajasthan and Others reported in AIR 1987 SC 1166 wherein it is held that the shop to be “a place where services are sold on retail basis”, came to the conclusion that in case of advertising agency also, clients call on an advertisement agency to initiate campaigns for promotion of their products and such campaigns can be conducted in different media and otherwise and an advertising agency gives advice in this behalf as to possible expenses or the payment to be made for services rendered by it to its clients. It was therefore submitted that in the facts of the said case, the Hon’ble Apex Court has held as under: “17. Anyone who has products to sell may approach an advertising agency. The advertising agency will prepare an advertising campaign for him utilising the services of the experts it employs in this behalf. It sells the campaign to the client and receives the price thereof. Indubitably, the price will depend upon the nature of the campaign, but that does not, in our view, make any great difference. Essentially, the advertising agency sells its expert services to a client to enable the client to launch an effective advertising campaign of his products. Without straining language, the premises of an advertising agency can, therefore, reasonably be said to be a 'shop', as now understood.” 7.5. Learned advocate Mr. A.V.Nair drawing the analogy from the observations made by the Apex Court submitted that the firm of a Chartered Accountant also provides service to its clients for the money to be paid to it and such charges for service would depend upon the various types of works to be carried out by the firm of a Chartered Accountant and therefore, reasonably the Office of a Chartered Accountant can be said to be a ‘Shop’ to be covered within the scope of establishment as per the Notification issued under Sub-section (5) of Section 1 of the ESI Act by Government of Gujarat within the territory of the State of Gujarat. 7.6. Learned advocate Mr. A.V.Nair also relied upon the decision in case of Bangalore Turf Club Limited and Others Versus Regional Director, Employees State Insurance Corporation and Others reported in 2014 LawSuit (SC) 601 which was confirmed by the Supreme Court in Civil Appeal No.2416 of 2003 wherein it is held that the provisions of the Act be applicable in respect of the employees of catering section of the Club as it was providing food to its members, wherein, it is held as under : “30. In the case of Sheikh Gulfan v. Sanat Kumar Ganguli, (1965) 3 SCR 364 , it was held that: "...Normally, the words used in a statute have to be construed in their ordinary meaning; but in many cases, judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends of a fair and a reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper construction of the statutory provision in which the words occur. Often enough, in interpreting a statutory provision, it becomes necessary to have regard to the subject-matter of the statute and the object which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the con- text in which the words occur, the object of the statute in which the provision is included, and the policy underlying the statute assume relevance and become material. As Halsbury has ob- served, the words "should be construed in the light of their context rather than what may be either their strict etymological sense or their popular meaning apart from that context (See Halsbury’s Laws of England, Vol. 36, p.396, para. 593)." 55. We have also noticed that the modus operendi of the Appellant-Bangalore Turf Club is the same as that as has been mentioned in the case of Dr. K.R. Lakshmanan (supra), with a difference only in the percentages of tax and commission collected. The Appellant-Turf Club, in essence, takes money from viewers, members as well as the general public, as admission fee and in return provides them with certain services, those being the actual viewing of the race and facilitating placing of bets. K.R. Lakshmanan (supra), with a difference only in the percentages of tax and commission collected. The Appellant-Turf Club, in essence, takes money from viewers, members as well as the general public, as admission fee and in return provides them with certain services, those being the actual viewing of the race and facilitating placing of bets. Some features of the mode of conducting horse races by the Appellant-Turf Club may be listed as follows: i. That the bets are made inside the race course premises; ii. That admission of the race is by tickets (entrance fee) as prescribed by the Club. Separate entrance fee is prescribed for the first enclosure and the second enclosure; iii. That betting on the horse, participating in the races may be made at either the club’s totalizators (the totes) by purchasing tickets or with the Book Makers (Bookies) who are licensed by the club and operate within the first enclosure; iv. That 5% of the tote-collections of each race is retained by the club as commission. 56. It may also be relevant to make a reference to the Memorandum of Association of the appellant in Civil Appeal No. 2416 of 2003, being the Bangalore Turf Club Limited. The objects of the said appellant include, inter alia, the following: "(a) to carry on the business of a race-club in all its branches and in particular to lay out and prepare lands for the running of horse races, steeplechases or races of any other kind.... ... (d) to establish any Clubs, Hotels or other conveniences in connection with the Company’s property; (e) to carry on the business of hotel-keepers, licensed victualler, refreshment purveyors;] (f) to buy, maintain and sell horses and ponies for racing, breeding and training either directly or through riding clubs, studs or other agencies; ... (j) to establish institutions, schools, funds and other conveniences for training jockeys and riders, both professional and amateur; ...." The above objects are reproduced, solely with the intention to establish that the appellant cannot claim that the Turf Club is established for the limited purpose of conducting races. This does not imply that this Court is of the opinion that if the Turf Club were to merely conduct horse races, it would surely fall out of the purview of a shop. This does not imply that this Court is of the opinion that if the Turf Club were to merely conduct horse races, it would surely fall out of the purview of a shop. Further, it would not be relevant as to whether the said activities as enlisted above are being conducted as on date. One cannot argue that a given premises may not be a shop based on the grounds that certain contentious activities have been discontinued for the time being. These activities are provided for in the Memorandum of Association and therefore, the Turf Clubs may, legally and as a matter of right, resume them on a future date. 57. It can be safely concluded that, the Appellant-Turf Clubs conduct the activity of horse racing, which is an entertainment. The Appellant-Turf Clubs provide various services to the viewers, ranging from providing facilities to enjoy viewership of the said entertainment, to the facilitating of betting activities, and that too for a consideration- either in the form of admission fee or as commission. An argument may be advanced that not all persons who come to the race would avail the services as provided by the Appellant-Turf Clubs, however the same would fail as even in the case of a shop in the traditional meaning, that is to say, one where tangible goods are put for sale, a customer may or may not purchase the said goods. What is relevant is that the establishment must only offer the clients or customers with goods or services. In this light, it is found that a race-club, of the nature of the Appellants, would fall under the scope of the term ’shop’ and thereby the provisions of the ESI Act would extend upon them by virtue of the respective impugned notifications issued under sub-section (5) of Section 1 of the ESI Act.” 7.7. Considering the above memorandum of issuance of Banglore Turf Club where mentioned in clause (d) regarding business activity of the club so as to attract provisions of the ‘shop’ which is not defined in the ESI Act, reliance was also placed on the decision of the Employees State Insurance Versus Hyderabad Race Club reported in AIR 2004 SC 3972 . 8.1. On the other hand, learned Senior Advocate Mr. Saurabh Soparkar with learned advocate Mr. 8.1. On the other hand, learned Senior Advocate Mr. Saurabh Soparkar with learned advocate Mr. Jwalit B. Soneji appearing for the respondent Chartered Accountant in First Appeal No.2588 of 2023 submitted that the issue as to whether the Office of the Chartered Accountant is a shop or not is no more res-integra. 8.2. It was submitted that this Court in First Appeal No.354 of 2020 in case of Employees State Insurance Corporation versus Ramanlal G. Shah rendered on 10.10.2020, considering similar provisions in Employees Provident Funds Act, 1952 were considered in First Appeal No.3001 of 2022 in a firm of Chartered Accountant, came to the conclusion that the provisions of ESI Act are not applicable to the firm of a Chartered Accountant. 8.3. Learned Senior Advocate Mr.Saurabh Soparkar and learned advocate Mr. Palak Thakkar also referred to and relied upon the following decisions in support of their submissions that firm of Chartered Accountant is not covered by the provisions of the Act or notification issued by the State Government to include as “shop” to apply the provisions of the ESI Act: (i) Employees State Insurance Corporation versus H.K.Acharya and Company in First Appeal No.3001 of 2022: “(5) In the present appeals, the substantial questions of law, which falls for consideration are as under: “(a) Whether the opponent-Firm, which is engaged in the work of patent and trade mark and are engaging attorney and advocates can be encompassed under the provisions of the Employees’ State Insurance Company Act, 1948 (for short “the ESIC Act”) ? And (b) Whether the employees of the opponent-Firm can be termed as the employees under the Act merely because their contribution is being made under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (for short “the Act”) ?” (6) It is the case of the appellant-Corporation that the court below has fallen in error in appreciating the provisions of the Employees’ State Insurance Company Act, 1948 (for short “the ESIC Act”) by holding that the provisions of the ESIC Act cannot be extended to the opponent-Firm in view of the fact that its employees, who are working in the opponent-Firm, are being extended the benefit of the EPF Act. It is the case of the appellant-Corporation that since the opponent-Firm is contributing towards the provident fund of its employee under the EPF Act, the provisions of the ESIC Act can be made applicable to the opponent-Firm, as it would be covered in the definition of “Commercial Establishment” under the provisions of Section 1(5) of the ESIC Act. (7) It is asserted by the appellant-Corporation that the activities of the opponent-Firm can be said to be “commercial” and hence, it can be brought within the ambit of the ESIC Act by resorting to the provisions of Section 1(5) of the ESIC Act. The facts of the case suggest that the appellant-Corporation had issued C-11 notice to the opponent-Firm covering it under the ESIC Act w.e.f. 01.01.2007, which was subject matter of challenge before the court below. An ad hoc assessment notice dated 06.04.2009 was also issued by the appellant-Corporation under Section 45 of the ESI Act after hearing respective parties and examining the evidence on record. The ESI Court has partly allowed ESI Application No.31 of 2009 of the opponent-Firm by setting aside the notice issued under C-11 encompassing the opponent within the ambit of the ESIC Act. The ad hoc assessment notice dated 06.04.2009 to the opponent-Firm is also set aside. The ESI Court, after examining the evidence on record, has concluded that the opponent-Firm is doing the work of patent and trade mark attorney and advocates are engaged by the firm. The firm is not registered under any law and the advocates engaged by the firm appeared to have been filing their respective vakalatnama. (8) It is the case of the appellant-Corporation that since the opponent-Firm is paying contribution of its employee under the EPF Act, and the employees of such firm are automatically treated as employees under the ESIC Act, hence they are covered under the ESIC Act. It is well settled proposition of law that the provisions of one statute cannot be made applicable to another statute until it is specifically provided in either of the statutes. Neither the EPF Act nor the ESIC Act stipulates any such provision, which extends the applicability of any provision of each Act to the workmen or the employees, who are governed under such Act. Neither the EPF Act nor the ESIC Act stipulates any such provision, which extends the applicability of any provision of each Act to the workmen or the employees, who are governed under such Act. Thus, the contention raised by the opponent Firm by seeking shelter under the definition of “employee” and the payment of contribution by the firm cannot rescue the Corporation and merely because the opponent Firm is voluntarily paying the contribution under the EPF Act, the same will not ipso facto encompass the opponent-Firm under the ESIC Act. (9) At this stage, it would be apposite to refer to Section 1 of the ESIC Act, which reads as under:- “1. Short title, extent, commencement and application (1) This Act may be called the Employees' State Insurance Act, 1948. (2) It extends to the whole of India 1[***]. (3) It shall come into force on such 2 date or dates as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and 3 [ for different States or for different parts thereof]. (2) It extends to the whole of India 1[***]. (3) It shall come into force on such 2 date or dates as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and 3 [ for different States or for different parts thereof]. (4) It shall apply, in the first instance, to all factories (including factories belonging to the government) other than seasonal factories: [PROVIDED that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.] (5) The appropriate government may, in consultation with the Corporation and [where the appropriate government is a State Government, with the approval of the Central Government], after giving six months’ notice of its intention of so doing by notification in the Official Gazette, extend the provisions of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise [PROVIDED that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State.] [(6) A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power.]” A plain and literal reading of the provision of Section 1, more particularly sub-Section (4) indicates that the Act applies to all factories or establishment belonging to or under control of the Government. The appellant has premised their submissions of sub-Section (5) of Section 1 of the ESIC Act. The appellant has premised their submissions of sub-Section (5) of Section 1 of the ESIC Act. Sub-Section (5) of Section 1 of the ESIC Act unequivocally confers the powers on the appropriate Government to extend the provisions of the ESI Act to any other establishment or class of establishment, industrial, commercial, agricultural or otherwise, after giving one month’s notice of its intention to do so and by issuing a notification in the Official Gazette. Unquestionably, in the present case, no such notification is issued under the provisions of sub-Section (5) of Section 1 of the ESIC Act encompassing the advocates’ firm like the present opponent extending the provisions of the ESIC Act. (10) Thus, until and unless such notification is issued by the appropriate government, the provisions of the ESIC Act cannot be made applicable to the opponent advocates’ firm. The definition of “employee”, as envisaged in sub-Section (9) of Section 2 of the ESIC Act also in no uncertain term applies to the employees of the opponent-Firm since it stipulates that the same pertains to such employees, who are employed for wages in connection with the working of factory or establishment. (11) Thus, the appellant-Corporation cannot be allowed to cover the opponent-Firm under the umbrella of EISC Act only for the reason that the Firm is voluntary contributing the fund of its employees under the EPF Act. Such an action is impermissible unless the statute permits. (12) The appellant have also resorted to the provisions of the Bombay Shops and Establishment Act, 1948. It is the case of the appellant that in view of Section 2(4) of the Bombay Shops and Establishment Act, 1948, the opponent-Firm, which is an advocates’ firm can be said to be engaged in a “profession”, as defined under the “commercial establishment” and hence, the provisions of the ESIC Act are required to be extended to such firm. In the considered opinion of this Court, such a contention is misconceived since the applicability of the ESIC Act on the opponent-Firm cannot be extended on the definition of “commercial establishment” stipulated under the Bombay Shops and Establishment Act, 1948 in wake of the fact that neither the opponent-Firm falls under the definition of factory or any establishment industrial, commercial, agricultural or otherwise since no notification is issued by the State Government under the provisions of sub Section(5) of Section 1 of the ESIC Act. (13) In view of the aforesaid facts, the substantial questions of law are answered accordingly. The opponent-Firm, which is doing the work of patent and trademark attorney and are engaging skilled advocates cannot be encompassed under the provisions of the ESIC Act. The contribution paid by the opponent-Firm of its employees under the EPF Act cannot make them liable of being covered under the provisions of ESIC Act.” (ii) M/s.Singhvi Dev and Unni, Chartered Accountants Versus The Regional Director, ESIC and others reported in 2010 (4) LLN 652 (Karnataka High Court): “21.The second reason for not accepting the argument of Sri.Narasimha Holla is that even in the case of a Lawyers firm, apart from the number of persons engaged to do various ancillary jobs, yet the whole activity of the lawyers’ firm comes within the fold of professional activity and as such though the employees working in a lawyers’ firm do not have the benefit of the ESI Act being made applicable to them, a that itself is not a ground to treat the firm of lawyers as a shop for the purpose of implementing the ESI Act to the employees engaged in a lawyers firm and treat the lawyers separately as a profession. 22. This view of mine is also supported by a decision of the Apex Court referred to by the learned Sr. counsel for the appellants in the case of ‘V.SASIDHARAN We M/s. PETER & KARUNAKAR & OTHERS’ (198442) L. Lal. 385). The Apex Court, while considering the question as to whether firm of lawyers come within the ambit of Kerala Shops and Commercial Establishments Act, 1960, has held that the office of the lawyer or the firm of lawyers is not a shop within the meaning of Section 2(15) of the Act in question, and went on to observe that whatever may be the popular conception or misconception regarding the role of today’s lawyers and the alleged narrowing of the gap between the profession on the one hand and a trade or business on the other, it is trite that traditionally lawyers do not carry on a trade or business to customers. The concept as well as the phraseology of the definition of “shop” is inapposite in the case of Lawyers’ office or the office of the firm of lawyers. 23. The concept as well as the phraseology of the definition of “shop” is inapposite in the case of Lawyers’ office or the office of the firm of lawyers. 23. Observing to the above effect, the Apex Court also considered the arguments concerning the coverage of the employees working in the lawyers’ firm and observed thus: “We are quite solicitous about the welfare of those who work ‘in the lawyers’ offices. But, there are many other ways in which their welfare can be ensured. If the current trends are any indication and if old memories fail not, the earnings of Lawyers’ clerks cannot, in reality, bear reasonable comparison with the earnings of employees of commercial establishments, properly so called. They, undoubtedly work hard but they do not go without their reward. They come early in the morning and go late at night, but that is implicit in the very nature of the duties which they are required to perform and the time they spend is not a profitless pastime.” 24. As in the case of the lawyers’ firm and the employees engaged by the lawyers’ firm so also in the case of a firm of chartered accountants, the very same logic can be extended even as regards persons working in the chartered accountants’ firm. Merely because of number of persons being employed in a chartered accountants’ firm, that itself does not give room to take the view that from the point of view of the employees, the firm of chartered accountant will have to be treated es a shop. In my view, such an argument is also contrary to the principles laid down by the Apex Court in the aforementioned case. For the above reasons, the appellant-chartered accountants’ firm cannot be brought within the meaning of the word “shop” so as to make the ESI Act applicable to the appellant's firm.” (iii) B.K.Ramadhyani and Company Versus Employees’ State Insurance Corporation reported in 2014 (141) FLR 183 (Karnataka High Court): “3. Having heard the learned Counsel, examined the order impugned. There can be no doubt that, in the first place, the order dated 10.1.2012 Annexure-C is cryptic and bereft of reasons, findings except conclusions. Having heard the learned Counsel, examined the order impugned. There can be no doubt that, in the first place, the order dated 10.1.2012 Annexure-C is cryptic and bereft of reasons, findings except conclusions. Petitioner having opposed the notice - Annexure-A by filing a reply Annexure-B indicating that the firm of Chartered Accountants cannot be treated as a shop, it was for the authority, to examine the veracity of the objections and either accept or reject the same W.P. 18073/12 after assigning cogent reasons and lawful findings to conclude that firm of Chartered Accountants is a "shop". Such is not a procedure forthcoming from the letter Annexure-C and on that score alone, this petition deserves to be allowed and the order quashed. 4. Be that as it may. A learned Single Judge in Singhvi Dev's case, having noticed the decision of the Bombay High Court in N.E.Merchant and another -vs-State holding that, a firm of Chartered Accountants with articled and salaried ordinary clerk, is not a commercial establishment under the Bombay Shops and Commercial Establishments Act and that, regard being had to the word "profession", the activities of a Chartered Accountant under the Chartered Accountants Act, 1949, statutorily recognized, are not a mere business or trade, but a profession, coupled with the standards of conduct when practising as a Chartered Accountant, stringent restrictions placed upon him as a measure of integrity, held that Chartered Accountants' avocation is a profession recognized under the Act and therefore, is not a business or trade. Hence, would not fall within the ambit of the word "shop" and accordingly, quashed the proceedings initiated by the ESI Corporation to cover the said establishment under the Act. In my considered opinion, the order fully covers the case of the petitioner and there is no reason to depart from that view.” (iv) Gopalakrishnan L. Versus Assistant Inspector of Labour, Rayadurg reported in 2002 (IV) LLJ (suppl) 336 (Andhra Pradesh H.C.): “4. In my considered opinion, the order fully covers the case of the petitioner and there is no reason to depart from that view.” (iv) Gopalakrishnan L. Versus Assistant Inspector of Labour, Rayadurg reported in 2002 (IV) LLJ (suppl) 336 (Andhra Pradesh H.C.): “4. To appreciate the contentions raised by the learned counsel for the petitioner, let us see the definition of Section 2(21) of the said Act, which reads as follows: “(21) ‘Shop’ means any premises where any trade or business is carried on or where Services are rendered to customers and includes a shop run by a co-operative society, an office, a store room, godown, “warehouse or work place whether in the same premises or otherwise, used in connection with such trade or business and such other establishments as the Government may, by notification declare to be a shop for the purposes of this Act, but does not include a commercial establishment.” 5. Therefore, as seen from the definition of a “shop”, the office of Chartered Accountant is not carrying on business and it does not come within the meaning of Section 2(21) of the said Act. Of course it is rendering some service to the customers. 6. Initially, Chartered Accountant profession was regulated by the Auditors Certificates Rules framed in the year 1932 in exercise of the powers conferred on the Government of India by Section 144 of the Indian Companies Act, 1913. The Indian Accountancy Board was advising the Government in all matters relating to the profession and was assisting it in maintaining the standards of the professional qualifications and conduct required of the members of the profession. The majority of members of the Indian Accountancy Board used to be elected by Registered Accountants, and members of the profession from all parts of the country. These arrangements were intended to be only transitional to lead up to a system in which such accountants would in autonomous association of themselves, largely assume the respondents involved in the discharge of their public duties by securing maintenance of the requisite standard of professional qualifications, discipline and conduct, the control of the Central Government being confined to a very few specified matters. The Act of 1949 is an Act framed for the regulation of the profession of Chartered Accountants - the regulation is exercised though the Institute of Chartered Accountants, It is a self-contained Code of Conduct of the Chartered Accountants. The Act of 1949 is an Act framed for the regulation of the profession of Chartered Accountants - the regulation is exercised though the Institute of Chartered Accountants, It is a self-contained Code of Conduct of the Chartered Accountants. The Institute of Chartered Accountants of India is a Body Corporate, and all the Chartered Accountants are its members. There is a Council of the Institute constituted under Sec. 9, Under Section 15, the Council is entrusted with the management of the affairs and for discharging the functions assigned to it by the Act of 1549, The duty of carrying out: the provisions of the Act of 1949 is vested in it. the Council is invested, among others, with the power to take disciplinary action against the Chartered Accountants. It is responsible to guide its members in the discharge of their professional duties and to maintain a high standard. Under Section 2(b) of the Act of 1949, “Chartered Accountant” means “a person who is a member of the Institute. Every member of the Institute is entitled to designate himself as a Chartered Accountant. There are two classes of members, those who are in practice and those who are otherwise occupied, Regulation 167 of the Regulations defines the other services which if rendered by a Chartered Accountant for which he would be deemed to be in practice. A Chartered Accountant in practice under the said Regulation may accept 5 part-time employments, and notwithstanding anything contained in Regulation 166, subject to the control of the Council, he may act as liquidator, trustee, executor, administrator, arbitrator, receiver, adviser or representative (sic) for costing, financial or taxation matters. 7. Therefore, from the reading of the above provisions of the Act of 1949 and Regulations, would make it amply clear that a Chartered Accountant in practice has manifold functions and duties to perform and discharge with the professional conduct to be observed by him and that apart from possessing required qualifications, he requires special skill, learning and experience in the discharge of his duties. The profession is a vocation or occupation requiring special, usually advanced education and skill. The work and skill involved in a profession is predominantly mental or intellectual rather than physical or manual. 8. Therefore, the office of the Chartered Accountant or of a firm of Chartered Accountants cannot be considered as premises where any trade or business is carried out. The profession is a vocation or occupation requiring special, usually advanced education and skill. The work and skill involved in a profession is predominantly mental or intellectual rather than physical or manual. 8. Therefore, the office of the Chartered Accountant or of a firm of Chartered Accountants cannot be considered as premises where any trade or business is carried out. Therefore, it can be viewed that the office of the Chartered Accountant or of a Firm of Chartered Accountants does not come within the definition and the term in Section 2(21) of the said Act. It is difficult to hold that the office of Chartered Accountant or of a Firm of Chartered Accountants would be a commercial place.” (v) Anup Sarkar Versus C.E.S.C. Limited and Others reported in AIR 2021 (NOC 125) 43: “14. In essence, the distinction drawn by the Apex court while highlighting that a professional activity involves a certain amount of skill as against commercial activity which is a matter of business is paramount. These two were held to be distinct concepts; while in commercial activity one works for gain or profit, as against this, in profession, one works for his livelihood. Accordingly, there is a fundamental distinction between a professional activity and an activity of a commercial character, and therefore, it is crystal clear that the legal profession would not fall under the category of 'Commercial (Urban)'. 15. In the case at hand, the categorization in the tariff of CESC limited only contains two categories of relevance to the present case (a) Domestic (Urban) and (b) Commercial (Urban). Upon a reading of the judgment of the Supreme Court in Shiv Narayan (Supra) it is crystal clear that the legal profession would fall under the category of "non- domestic". However, falling under the category of "non-domestic" would not automatically make the use "commercial". The words "non-domestic" and "commercial" are not fungible, and therefore, cannot be interchanged. In the tariff of CESC Limited, the tariff entry of "Commercial (Urban)" is not a residual entry, and therefore, unless a user is commercial, the rate applicable to a commercial user cannot be charged simpliciter because the profession of lawyer is considered to be a non-domestic use. The words "non-domestic" and "commercial" are not fungible, and therefore, cannot be interchanged. In the tariff of CESC Limited, the tariff entry of "Commercial (Urban)" is not a residual entry, and therefore, unless a user is commercial, the rate applicable to a commercial user cannot be charged simpliciter because the profession of lawyer is considered to be a non-domestic use. In my view, a lack of clarity in the tariff cannot be used to the detriment of the user and the benefit of doubt would in such cases have to be given to the consumer. 16. In the present case, the space in the ground floor has been taken by the petitioner as an extension of his residence for the use of the space as his legal chamber. The above factual matrix is clearly distinguishable from law firms and proprietorship firms that are having offices in commercial spaces dealing with litigation and non-litigation work. The chambers of a litigation lawyer are clearly used for his livelihood, and accordingly, the benefit of doubt is required to be given to such a petitioner placing him in the category of the "Domestic (Urban)". 17. In light of the conclusion reached above, the writ petition is allowed and the CESC Ltd. is directed to provide the new electric connection to the petitioner) under the category 'Domestic (Urban)' within a period of two weeks from date. Needless to mention, the petitioner shall comply with all formalities necessary in accordance with law.” (vi) Kanubhai Shantilal Pandya and Others versus Vadodara Municipal Corporation in Special Civil Application No.13289 of 2014: “9. In a judgement dated 17.6.2013 passed in First Appeal No.3642/2006 and connected matters in case of Ahmedabad Municipal Corporation v. Shantilal Ambalal Sukhadia while dealing with the First Appeal of Ahmedabad Municipal Corporation against the judgement of Small Causes Court, Ahmedabad, Division Bench in somewhat similar circumstances observed as under : “9. In our view, if on behalf of the Corporation, no evidence is produced and the evidence produced on behalf of the respondent shows that the flat in question was also used for residence and profession, and on that basis the learned Judge has directed to consider the use of the premise as residential, such an approach cannot be said to be erroneous. We may record that had it been a case, where the proof had come on record that the flat in question was exclusively used for professional purpose or had the premise or flat been situated in a commercial complex, it might stand on a different footing and in those cases, treating the use as commercial may be justified, but in a case where a premise in part is used for residential and a portion is used for profession, the use of premise cannot be treated as commercial use.” 10. Learned Single Judge of Bombay High Court in case of Municipal Corporation of city of Pune v. Bhagwan Ganesh Sabne reported in 2006(5) BCR 511, considered a question whether use of the premises by the Chartered Accountant for his profession can make him liable to taxes in respect of the premises used for the purpose of trade and business. It was held that the profession of Chartered Accountant is neither a trade nor a business. 11. The Supreme Court in case of V. Sasidharan v. M/s. Peter and Karunakar and others reported in AIR 1984 Supreme Court 1700 in context of Kerala Shops and Commercial Establishments Act held and observed that office of lawyers or firm of lawyers is not a commercial establishment. Like-wise in case of Devendra M. Surti v. State of Gujarat reported in AIR 1969 Supreme Court 63, in context of Bombay Shops and Establishment Act, the Supreme Court held that a doctor's dispensary was not a commercial establishment within the meaning of the said Act. Learned Single Judge of this Court in case of Gujarat Electricity Board, Junagadh v. Ashwinbhai Maniyar & ors. reported in 2010(1) GLR 679 in context of Electricity Regulatory Commissions Act, considering the question whether office of an advocate can legally be charged with tariff at commercial rate, it was held that the advocate's office falls in the category of non residential premises and question whether office of advocate is a commercial activity is not relevant. The Supreme Court in case of Chairman, Madhya Pradesh Electricity Board & ors. v. Shiv Narayan & anr. reported in 2006(1) GLR 387 in context of Electricity(Supply) Act held that legal profession cannot be compared to trade and business. There is a distinction between professional activity and activity of commercial character. The Supreme Court in case of Chairman, Madhya Pradesh Electricity Board & ors. v. Shiv Narayan & anr. reported in 2006(1) GLR 387 in context of Electricity(Supply) Act held that legal profession cannot be compared to trade and business. There is a distinction between professional activity and activity of commercial character. With these observations, decision in case of New Delhi Municipal Council v. Sohal Lal Sachdev reported in 2000(2) Supreme Court Cases 494, in which broad categorisation of commercial and domestic uses for the purpose of levy of electricity charges was made, came to be referred to larger Bench. We however, need not go into such a larger issue. Since from the facts on record, we gather that all the petitioners are occupying residential units situated in residential areas or complexes for their residential purpose. Only a small portion of these units have been set apart for their legal work. That being the position, the Vadodara Municipal Corporation committed an error in splitting the properties in question for separate consideration for tax purpose. Section 141B of the BPMC Act does refer to classification of building into residential buildings and buildings other than residential use, nevertheless, it is doubtful whether such classification can be provided for the same building. If the unit was a commercial unit used by the lawyer for his legal profession or even if the entire residential unit was occupied by lawyer for his legal work, different considerations would perhaps apply. In the present case, when the predominant use of the residential unit was for residence of the owner-occupier for his family, mere setting apart a small area therein for his legal work would not change the predominant use of the property and resultantly, we do not find that Vadodara Municiapal Corporation could have charged such area separately at non residential or commercial rate. 12. Decision in case of R.K. Mittal and others v. State of Uttar Pradesh and others reported in (2012) 2 Supreme Court Cases 232, relied upon by the counsel for the respondent was rendered in vastly different background. It was a case of large scale violation of Town Planning scheme and occupation by various occupiers of premises allotted by development authority for uses other than those for which they were earmarked. It was in this background the Supreme Court gave certain directions in paragrap-74 of the judgement in order to discontinue such unauthorised uses. It was a case of large scale violation of Town Planning scheme and occupation by various occupiers of premises allotted by development authority for uses other than those for which they were earmarked. It was in this background the Supreme Court gave certain directions in paragrap-74 of the judgement in order to discontinue such unauthorised uses. Even in such directions in subparagraph-(5), the Supreme Court permitted doctors, lawyers and architects to use 30% of area on the ground floor in their premises in residential sector for running their clinics and offices. This judgement therefore, would not throw any light on the controversy at hand.” (vii) M/s. A.F.Ferguson & Company & Anr. Vs. State of Maharashtra in Criminal Writ Petition No.1232/1995 : “47. We have already noted that the office of Chartered Accountant or a Firm of Chartered Accountants is a profession - learned and liberal profession - like that of the lawyers and advocates. Therefore, naturally we also find that so far as the office of the Chartered Accountant or a Firm of Chartered Accountants is concerned, the observations made by the Division Bench above are equally applicable and that the office of Chartered Accountant or a Firm of Chartered Accountants cannot be herded together with the shops and restaurants, etc., as is reflected in the definition of the “commercial establishment”. 48. We find that earlier to the amending Act, in view of the decision in NB. Merchant v. The Bombay Municipal Corporation (1967 Mh.L.J. 1008) the office of Chartered Accountant or a Firm of Chartered Accountants was not included in the definition of “commercial establishment” and the same was opinion of the Government also, and, therefore, in the object clause of the Amendment Bill it was stated that the inclusive clause has been put up because some of the Courts have held that the establishment of lawyers and Chartered Accountants is not a “commercial establishment”. As it is evident that herding of lawyers along with other commercial establishments is impermissible, equally the herding of Chartered Accountants along with other commercial establishments is impermissible. We therefore find that the inclusion of the office of Chartered Accountants or a Firm of Chartered Accountants in the definition of “commercial establishment” is impermissible and violative of Article 14 of the Constitution being arbitrary and irrational one. We follow the test laid down in Narendra K. Fulladi & Ano. We therefore find that the inclusion of the office of Chartered Accountants or a Firm of Chartered Accountants in the definition of “commercial establishment” is impermissible and violative of Article 14 of the Constitution being arbitrary and irrational one. We follow the test laid down in Narendra K. Fulladi & Ano. v. State of Maharashtra reported in 1986 LIC 318 and hold that the. said amending Act of 1977 is ultra-vires to the Constitution insofar as inclusion of Chartered Accountants in the definition of "commercial establishment” is concerned. 49. Learned Associate Advocate General has pointed out the various provisions of the Act, as discussed in the arguments above, to demonstrate that different class of persons have been differently treated by the Act by incorporating the separate chapters and provisions. He submitted that therefore it is not herding together. We are not in agreement with the learned Associate Advocate Genéral. We have carefully gone through the various Chapters of Bombay Shops and Establishments Act, 1948 and we have found that there is no separate Chapter or provision specifically dealing with the Chartered Accountants as was shown in respect of tax practitioners, but for the inclusion of Chartered Accountants in the definition of “commercial establishment”. Chapter-I of the said Act provides for registration of establishments. Chapter-II provides for hours of work, Chapter-III for holidays and leave, Chapter-IV for wages, Chapter-V for employment of children and women and Chapter-VI for health and safety measures. Section 6 of the Act provides that no employee in any establishment shall be required or allowed to work for more than 8 hours on any day or for more than 48 hours in any week, Section 8 requires that the period of work of an employee in an establishment for each day shall be so fixed that no period shall exceed four hours and no such person shall work for more than 4 hours before he has had a interval for races of at least 1 hour. Under section 10 no establishment shall on any day be opened earlier than and closed later than such hours as may be fixed by the Government, provided that any customer who is being served or is waiting to be served in any establishment at the hours fixed for its closing may be served during a quarter of an hour immediately following such hour. These and other cognate provisions of the Act show that the Office of the Chartered Accountant or a Firm of Chartered Accountants cannot be comprehended within these provisions. Thus we are on the contrary satisfied that the office of Chartered Accountant and/or a Firm of Chartered Accountants has been treated at par with shops and restaurants, etc., and the premises of Chartered Accountant in practice will be governed by the said provisions. In fact, the working hours of the office of Chartered Accountant or a Firm of Chartered Accountants cannot be regarded like that of shop or establishment. It will be difficult to maintain relation and entertain clients by the Chartered Accountants. Therefore, taking into consideration the total service rendered by Chartered Accountants and their relation with clients, the Office of Chartered Accountant or a Firm of Chartered Accountants cannot be regarded as like shop or commercial establishment. We are satisfied that the Division Bench when considered this aspect was also satisfied that simply inclusion has resulted into herding together the wrong class of persons and therefore in Narendra Fulladi's case said provision was struck down. While providing a inclusion of Chartered Accountants in the definition of “Commercial establishment”, the care should have been taken to see that the profession of accountant, chartered accountants falls in the category of commercial activity so that it can be said to be a commercial establishment. The activity which is not commercial basically cannot be included in the definition of “commercial establishment” by simple amendment of definition providing inclusion. Basically, profession must have characteristics of commercial trace activities so as to bring them together class as such. Viewed from this point of view and tests, it will be found that submission of the learned counsel for the State is without merit. 50. The challenge in main petition is directed as against the constitutional validity of section 24 of the Bombay Shops and Establishments Act, 1948 and Bombay Shops and Establishments Amendment Act, 1977 so far as it seeks to include the establishment of accountants within the definition of “commercial establishment” and all the grounds raised in the petition are in this respect, though in the cause-title of the petition section 482 of the Code of Criminal Procedure is/was stated. However, in the absence of rasing of a ground, at eleventh hour, the learned counsel for the petitioners tried to raise grounds in respect of the maintainability of the complaints being filed as against all the partners of the petitioners, etc., as could have been considered in a petition under section 482 of the Code of Criminal Procedure. However, since the main petition does not contain any ground in this respect, we refuse to entertain and consider those grounds which are raised at eleventh hour by the petitioners. 51. Shri. Walawalkar learned counsel appearing on behalf of the respondent - BMC relied upon an order dated 1.2.1990 passed in Writ Petition No. 234 of 1990 in the matter of Matru Sewa Sangh v. State of Maharashtra. However, it is a case of a summary rejection of the petition in the case of hospitals. The same being not the judgment, we refused to consider it. 52. In view of the above discussions we are of the view that the amendment so far as it relates to the establishment of the chartered accountants is liable to be struck down as it herds together commercial establishments with the establishment of the Chartered Accountants, which herding together is irrational and arbitrary.” (viii) Pithavadian & Partners, Chennai, rep. by its Partner Mr.Parthasarathy Versus Deputy Director, Regional Office (Tamil Nadu), Employees State Insurance Corporation, Chennai reported in 2010-IV-LLJ-125(Mad) : “18. As a matter of fact, a question arose before the Hon'ble Supreme Court in M.P.Electricity Board vs. Shiv Narayan ( 2005 (7) SCC 283 ) as to whether the legal profession is a commercial activity wherein after having referred to the dictionary meaning of the terms "commercial" and "professional" and after having a survey of many previous judgments has ultimately held in para 14 of the judgment as follows: "14. 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. Considering a similar question in the background of Section 2(4) of the Bombay Shops and Establishments Act, 1948 (79 of 1948), it was held by this Court in Devendra M. Surti (Dr.) v. State of Gujarat that a doctor’s establishment is not covered by the expression commercial establishment.” 19. Considering a similar question in the background of Section 2(4) of the Bombay Shops and Establishments Act, 1948 (79 of 1948), it was held by this Court in Devendra M. Surti (Dr.) v. State of Gujarat that a doctor’s establishment is not covered by the expression commercial establishment.” 19. As it has been held by this Court in L.M.Chitale's case cited supra and the Hon'ble Supreme Court in Shiv Narayan's case, a profession is totally different from a trade or business. An architect is not doing either a trade or a business and he is governed by a separate enactment and also governed by separate Rules. An Architect is pure and simple doing a profession. Therefore, the firm of architects cannot be held to be a 'shop' so as to bring the firm within the ambit of the ESI Act in terms of the Government Order referred to above. At the same time, apart form doing the professional work, it the firm of architects is involved in any trade or business such as construction work, sale of goods etc., then the firm would certainly fall within the ambit of the Act. In the instant case, the respondent, in the impugned order itself, has held that there is no such commercial activity undertaken by the petitioner. In view of the above, the impugned order passed by the respondent is not sustainable and the same is liable to be set aside.” (ix) Dr. Devendra M. Surti Vs. The State of Gujarat reported in AIR 1969 SC 63 : “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 the ambit of Section 2(4) of the Act. 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 the ambit of Section 2(4) of the Act. In The National Union of Commercial Employees and another v. M. R. Meher, Industrial Tribunal, Bombay 1962 Supp (3) SCR 157 = ( AIR 1962 SC 1080 ) it was held by this Court that the work of solicitors is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and therefore any dispute raised by the employees of the solicitors against them cannot be made the subject of reference to the Industrial Tribunal.” (x) V. Sasidharan Versus. M/s Peter and Karunakar reported in (1984) 4 SCC 230 : “8. A lawyer's office or the office of a firm of lawyers cannot obviously fall under clauses (3) and (4) above. Nor has the Government issued any notification as contemplated by section 2 (4). The question thus narrows itself into whether a lawyer's office falls under either of the first two clauses. 9. The expression 'establishment' is defined by section 2(8) mean a shop or a commercial establishment. Since by the definition contained in the first clause of Section 2(4). a commercial establishment means an establishment, a place of work cannot be regarded as a commercial establishment unless the activity is conducted in a 'shop' or in a commercial establishment, which is really tautological. The definition of 'shop' which is contained in section 2(15) shows that in order that an establishment can be regarded as a shop, it is necessary that some 'trade' or 'business' must be carried on there or some service must be rendered to 'customers. The expression 'shop' also includes offices, warehouses store rooms or godowns which are used in connection with the trade or business. It does not require any strong argument to justify the conclusion that the office of a lawyer or of a firm of lawyers is not a 'shop' within the meaning of section 2(15). The expression 'shop' also includes offices, warehouses store rooms or godowns which are used in connection with the trade or business. It does not require any strong argument to justify the conclusion that the office of a lawyer or of a firm of lawyers is not a 'shop' within the meaning of section 2(15). Whatever may the popular conception or misconception regarding the role of to-day's lawyers and the alleged narrowing of the gap between a profession on one hand and a trade or business on the other, it is trite that, traditionally, lawyers do not carry on a trade or business nor do they render services to 'customers'. The context as well the phraseology of the definition in section 2(15) is inapposite in the case of lawyer's office or the office of a firm of lawyers.” 8.4. Learned advocate Mr.Saurabh Soparkar referring to above decisions submitted that even in the case of the Advocates, the Office premises is not considered as a commercial establishment and the activity of a Chartered Accountants and Advocates are similar to provide service to their clients as both the Advocates and Chartered Accountants are functioning under the Central Act namely the Advocates Act, 1961 and the Chartered Accountants Act, 1949. 8.5. It was therefore submitted that reliance placed on behalf of the ESI Corporation to apply the provisions of the ESI Act to the Office of the Chartered Accountant are contrary to the provisions of the ESI Act and in absence of any Notification issued covering the establishment of firm of Chartered Accountant within the purview of the Act. It was submitted that by no stretch of imagination, Office of the Chartered Accountant can be considered as “Shop”. 9. Having heard the learned advocates for the respective parties, the only question which arises for consideration of this Court as to whether the Office of the Chartered Accountant can be considered as a “shop” covered within the Schedule of the Notification issued by the State of Gujarat in the year 2012 under Sub-section (5) of Section 1 of the ESI Act so as to apply the provisions of the Act to the Office of the Chartered Accountant. 10. 10. Provisos of the Chartered Accountant Act, 1949 is applicable to any member of the “Institute of Chartered Accountants of India” (ICAI) which prescribes Code of Ethics also, which reads as under : “22.6 Members who are deemed to be in a Practice. Every member of the Institute is entitled to designate himself as a Chartered Accountant. There are two classes of members, those who are in practice and those who are otherwise occupied. In Section 2(2) of the Act, the term "to be in practice has been defined as follows:- A member of the Institute shall be deemed to be in Practice when individually or in partnership with Chartered Accountants in practice, he, in consideration of remuneration received or to be received- (i) engages himself in the practice of accountancy or (ii) Offers to perform or performs service involving the auditing or verification of financial transactions, books, accounts or records, or the preparation, verification or certification of financial accounting and related statements or holds himself out to the public as an accountant or (iii) renders professional services or assistance in or about matters of principle or detail relating to accounting procedure or the recording presentation or certification of financial facts or data or (iv) renders such other services as, in the opinion of the council, are or may be rendered by a Chartered Accountant in practice: and the words to be in practice with them grammatical variations and cognate expressions shall be construed accordingly. Explanation: An associate or a fellow of the Institute who is a salaried employee of a Chartered Accountant in practice of a firm of such Chartered Accountants shall. notwithstanding such employment, be deemed to be in practice for the limited purpose of the training of Articled Clerks. Pursuant to Section 2(2) (iv) above, the Council has passed a resolution permitting a Chartered Accountant in practice to render entire range of Management Consultancy and other Services. The definition of the expression Management Consultancy and other Services" is given below: The expression "Management Consultancy and other Services Shall not include the function of statutory or periodical audit, tax (both direct taxes and indirect taxes) representation or advice concerning tax matters or acting as liquidator, trustee, executor, administrator. The definition of the expression Management Consultancy and other Services" is given below: The expression "Management Consultancy and other Services Shall not include the function of statutory or periodical audit, tax (both direct taxes and indirect taxes) representation or advice concerning tax matters or acting as liquidator, trustee, executor, administrator. arbitrator or receiver, but shall include the following (i) Financial management planning and financial policy determination (ii) Capital structure planning and advice regarding raising finance." (iii) Working capital management.” (iv) Preparing project reports and feasibility studies. (v) Preparing cash budget, cash flow statements, profitability statements, statements of sources and application of funds etc. (vi) Budgeting including capital budgets and revenue budgets. (vii) Inventory management, material handling and storage (viii) Market research and demand studies. (ix) Price-fixation and other management decision making. (x) Management accounting systems, cost control and value analysis. (xi) Control methods and management information and reporting. (xii) Personnel recruitment and selection. (xiii) Setting up executive incentive plans, wage incentive plans etc. (xiv) Management and operational audits. (xv) Valuation of shares and business and advice regarding amalgamation, mergers and acquisition (xvi) Business Policy, corporate planning, organization development, growth and diversification (xvii) Organization structure and behaviour, development of human resources including design and conduct of training Programmes, work study, job-description, job evaluation and evaluation of work loads. (xviii) Systems analysis and design, and computer related Services including selection of hardware and development of Software in all areas of services which can otherwise be rendered by a Chartered Accountant in practice and also to Carry out any other professional services relating to EDP (xix) Acting as advisor or consultant to an issue; including such matters as:- (a) Drafting of prospectus and memorandum containing salient futures of prospectus Drafting and filing of listing agreement and completing formalities with Stock Exchanges, Registrar of Companies and SEBI. (b) Preparation of publicity budget, advice regarding arrangements for selection of () ad media. (i) Centers for holding conferences of brokers, investors, etc., (i) Bankers to issue, (iv) Collection centres. (v) brokers to issue, (vi) underwriters and the underwriting arrangement, distribution of publicity and issue material including application form prospectus and brochure and deciding on the quantum of issue material (In doing so. the relevant provisions of the Code of Ethics must be kept in mind). (c) Advice regarding selection of various agencies connected with issue, namely Registrars to issue, printers and advertising agencies. the relevant provisions of the Code of Ethics must be kept in mind). (c) Advice regarding selection of various agencies connected with issue, namely Registrars to issue, printers and advertising agencies. (d) Advice on the post issue activities, e.g., follow up steps which include listing of instruments and dispatch of certificates and refunds with the various agencies connected with the work. Explanation - For removal of doubts, it is hereby clarified that the activities of broking, underwriting and portfolio Management are not permitted (xx) Investment counseling in respect of securities (as defined in the Securities Contracts (Regulation) Act, 1956 and other financial instruments/ (In doing so, the relevant provisions of the Code of Ethics must be kept in mind). (xxi) Acting as registrar to an issue and for transfer of Shares/other securities (In doing so, the relevant provisions of the Code of Ethics must be kept in mind). (xxii) Quality Audit. (xxiii) Environment Audit. (xxiv) Energy Audit. (xxv) Acting as Recovery Consultant in the Banking Sector. 34. The applicant has produced the deed of partnership vide exh.59/1, and in which in column No.4 is as as under: 4 Business and network:- 4.1 The business of firm shall be carried out in the name and style of ‘Deloitte Haskins & Sells and shall be the business of accountants, auditors, tax, practitioners, management consultants, Liquidators, referees, receivers, arbitrators and special commissioners and such other business as is usually carried on by professional accountants as allowed by the ICAI and shall be carried on the premises and at places of Managing Partner may determine.” 11. Therefore, the activity of a Chartered Accountant as mentioned above includes that of accounting, auditing, refereeing, receivers, arbitrators and special commissioners as prescribed by the ICAI to be carried out on premises and at places of managing partner may determine. Therefore, the activity of a Chartered Accountant as mentioned above includes that of accounting, auditing, refereeing, receivers, arbitrators and special commissioners as prescribed by the ICAI to be carried out on premises and at places of managing partner may determine. Therefore, it cannot be said that the entire activity of a Chartered Accountant is carried out at a particular place inasmuch as offers to perform or performs services involving auditing or verification of financial transactions, books of accounts or records or the preparation, verification or certification of financial accounting and related statement or rendering any professional services or assistance in or about the matter of principles or dealing with the accounting procedure or recording presentation or certification of financial facts or date can be carried out at various places including the places of the client as may be determined by the managing partner of the firm. Similarly, management consultancy services to be rendered by the Chartered Accountants includes services to be provided at the places of the client. Thus, the activity of the Chartered Accountant is not confined to the office premises only. The firm of the Chartered Accountant is therefore cannot be covered in definition of “shop” or commercial establishment so as to attract the provisions of the Act. 12. The firm of a Chartered Accountant can be operated at various places having different branches spread over either in India or across the globe providing professional services to its clients in terms to create powerful business solutions as per the need of the clients having multi-skilled and multi-disciplined firm, offering clients a wide range of industry-focused business solutions. Therefore, the firm of a Chartered Accountant cannot be said to be engaged only in statutory audit work, but is also providing tax consulting, financial advisory, risk management and related services to its clients for consideration in terms of fees. In such circumstances, confining the office of the Chartered Accountant within the definition of “Shop” cannot be accepted. “Shop” as per the provisions of the Bombay Shop and Establishment Act, 1948 only refers to a place from where service is rendered to its customers by any establishment. 13. There is also a difference between the term ‘services’ and ‘professional services’. In such circumstances, confining the office of the Chartered Accountant within the definition of “Shop” cannot be accepted. “Shop” as per the provisions of the Bombay Shop and Establishment Act, 1948 only refers to a place from where service is rendered to its customers by any establishment. 13. There is also a difference between the term ‘services’ and ‘professional services’. Reliance placed on behalf of the Corporation on the decision of the Hon’ble Supreme Court in case of M/s.Hindu Jea Band Jaipur Versus State of Rajasthan and Others reported in AIR 1987 SC 1166 is also not applicable in the facts of the case as it was a case of an advertising agency which was not providing professional services for which no specific qualification is required to be possessed by the person who renders such professional services like Advocates and Chartered Accountants which are governed and regulated by the special Acts. 14. In such circumstances, respectfully following the decision in cases of Ramanlal J. Shah (Supra) and H.K.Acharya and Company (Supra) rendered by this Court, no interference is required to be made in the impugned judgment and order passed by the E.S.I. Court while allowing the application filed by the firm of a Chartered Accountant so far as First Appeal No.2588 of 2023 is concerned and the appeal accordingly stands dismissed. 15. So far as the First Appeal No.1022 of 2023 is concerned, in view of the above discussion and foregoing reasons, the impugned judgment and order passed by the E.S.I. Court remanding the matter to the appellate authority is also quashed and set aside and the appeal is allowed confirming the findings given with regard to the issue No.4 by the E.S.I. Court in favour of the appellant. 16. At this stage learned advocate Mr. Palak Thakkar submitted the Appellant in First Appeal No. 1022 of 2023 has deposited the amount of ESI contribution with the ESI Corporation which may be ordered to be refunded back with interest. As the appeal is allowed, the ESI Corporation is directed to refund the amount deposited by the Appellant with interest accrued thereon within four weeks from the date of receipt of this order. 17. Both the appeals are disposed of accordingly. Civil Application also stands disposed of in view of the disposal of the First Appeal No.1022 of 2023.