Good news for Doctors. Hon. Bombay High Court in 2 recent consecutive judgements has held that Shop Act is now not applicable to Doctors ( as far as Maharashtra is concerned, nevertheless it has persuasive value)…
Recent 2 consecutive Judgments of Hon’ble Bombay High Court in the Case of Dr. Kavita Pravin Tilwani V/s. State of Maharashtra (2015(2) Mh.L.J. 271) and Dr. Shubhada Motwani V/s. State of Maharashtra (2015 (2) Mh.L.J. 408 has turned to be a pacifier for all the Medical Practitioners as Division Bench of Hon. Bombay High Court in both the Petitions have held in clear and in equivocal words that Doctors do not fall within the Definition of “Commercial Establishment” under the provisions of Bombay Shops and Establishment Act, 1948 (said Act) and the amendment introduced in 1977 by which the Government included Medical Practitioners in the said Definition was struck down as ultra vires.
Both the judgements (supra) are very important and in the Judgement of Dr.Shubhada Motwani, the same division Bench (presided over by their Lordships V.M. Kanade and P.D. Kode JJ.) struck down the criminal prosecution launched against the Petitioner doctor for not obtaining License under the said Act.
Their Lordships relying on the earlier judgments of Hon. Apex Court in the case of Dr. Devendra Surti V/s. State of Gujrath (AIR 1969 SC 63). In this case Hon’ble Apex Court has held that, “Professional Establishment of a Doctor does not come under the definition of “Commercial Establishment” unless the Activity carried on is commercial in nature. Difference between professional activity and commercial activity is that professional activity is carried on by an individual by his personal skill while commercial activity is systematically and habitually undertaken for production of goods or rendering services to the Community”.
Any shop keeper who is holding a Shop Act Licence will be jealous of medical practitioners from date of these decisions. Less said is better. Previously Doctors were required to follow various provisions of the said Act e.g. to display opening and closing timing board, weekly closer board, daily and weekly working hours to be followed and various registers to be maintained for the same and failure to follow these provision would have been an invitation to the punishment, fine/and/or imprisonment !!
After 1977 amendment made to the said Act, the Medical Practitioners, Legal Practitioners, Architect, Engineer, Accountant, Tax Consultant or any other technical or professional consultants were bought in the ambit of definition of “Commercial Establishment” under the said Act and as a result of which all these professionals were required to get themselves registered under the said Act. If we see the aims and object of the said Act, it was enacted with a view to consolidate and amend the law relating to regulation of and conditions of work and employment in shops, hotels, restaurants, theatres, other places of public amusements, where problems of over work, consequent deterioration of health of the employees affected by it and inadequate leisure for the recreation of the employees were prevailing. However, there seems to be no apparent logical reason behind bringing said professionals within the ambit of Commercial Establishment as there is no any manufacturing activity or sale of goods is involved nor does work of these professionals can be called as an Industry.
The Legal fraternity challenged this amendment way back in the year 1985 and the Division Bench of the Bombay High Court in the case of Narendra Fuladi V/s. State of Maharashtra (1985 Mh.L.J. 1) has held that “Legal practitioners having an office cannot be said to be carrying on commercial activity and would not fall within the definition of Commercial Establishment”. What Hon’ble High Court has further observed in the case of Narendra Fuladi that unless the trade, business, profession carried on also partakes of a commercial nature or venture the premises in which such activities are carried on will not attract the provisions of said Act, is squarely applicable in case of other professionals including Doctors.
It is very logical that that Doctors, Advocates, Chartered Accountants etc. carry on individually their activities by using their skill, intelligence, study, integrity that make them Professionals from the Commercial Activity and they are not Employers per se as envisaged under the said Act. It involves some investment of capital and there is always some element of risk of profit or loss in any Commercial Activity. These are the basic differences between the Professionals and the Commercial Activity. Alas, It took 38 years after the said amendment to strike down the name of Medical practitioners from the said Definition
In these days Doctors are becoming soft targets in the Society as we can see in the news almost every day. It is wrong to call entire heard of black sheep. Nevertheless the Judiciary and more particularly the Higher Judiciary of has always taken balanced views in order to protect the interests of Doctors when there is no fault of Doctors. These recent Judgments are another examples of the Judiciary having concern for the Doctors. At least one tension of Doctors is reduced, isn’t it ?
Thanks & Regards.
Adv. Rohit Erande
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