Putting forward the view of the Supreme Court and clearing all interpretations under the Bombay Shops and Establishment Act, 1948, the Nagpur bench of the Bombay High Court has clearly specified that a clinic run of a private doctor or their partnership firm can’t come under the definition of ‘commercial establishment’ under the ambit of the said act.
This comes after a writ petition was filed with the Bombay High Court by Indian Medical Association seeking a declaration that the establishments of individual medical practitioners and the medical practitioners working in partnership are not commercial establishments within the meaning of Section 2 (4) of the Bombay Shops and Establishments Act, 1948.
By amending the writ petition, the IMA sought a declaration that the inclusion of the term ‘medical practitioners’ in the definition of ‘commercial establishments’ in Section 2 (4) of the Act by amendment ( brought in 2002) is violative of the provisions of Article 14 of the Constitution of India.
The logic provided by the counsel appearing for IMA was simple- since medical practitioners are professionals, and hence the practise of a individual medical practitioner cannot be considered a commercial activity. The counsel for the association added that the since doctors are governed by different Acts and even statutory bodies like Medical Council of India(MCI), they are professionals.
He further referred to previous High court judgements as well as a Supreme Court judgement stating that the Hon’ble Supreme Court has held as early as in the year 1969 (in the judgment, reported in 1969 Mh.L.J. 391) that the professional establishments of Doctors do not fall within the ambit of the definition of ‘commercial establishments’ under the Bombay Shops and Establishments Act. The counsel argued that the maternity home/clinic run by the doctor can’t be termed as a commercial activity, as doctors provide service to patients. He added that chains of hospitals can be termed as commercial activity, as doctors were paid for rendering their service.
The pleader appearing for the government did not dispute the position of law as laid down by the Hon’ble Supreme Court and the high Court in the previous judgements, leading the court to clearly conclude that private clinics cannot no way be interpreted as a commercial activity under the mandate of Bombay Shops and Establishment Act.
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