Doctors, Shop (Act) is closed till further order.

Doctors, Shop (Act) is closed till further order !!

The Hon. Bombay High Court previously had observed :

“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”.

The Doctors which were pulled out from the canopy of Shop Act, have been again brought under the 4 corners of said Act ? The recent Bill L.A. Bill No. LIV 0f 2017, introduced in Maha. Legislative Assembly on 08th August, 2017 has categorically 'admitted' Doctors, Hospitals, dispensary, clinic, polyclinic, maternity home in the definition of term 'establishment' under the said Act. They were not specifically included in the previous Act. 

The Act also talks about applicability of the Act to the establishment having less than and more than 10 workers.   

However the Indian Medical Association  vide W.P. (L) No.2969/2017 challenged the said Act and the Division Bench of Hon. Bombay High Court [G.S. KULKARNI, J. & SHANTANU S. KEMKAR, JJ.] has passed the following order on 01/11/2017. The order could be searched recently and is shared for you.

 "6. In view of the fact that in somewhat identical circumstances earlier similar provision made by the State Government has been struck down by this Court, we are of the view that in the interest of justice, it will be appropriate to direct the respondent ­State not to take any coercive steps against the petitioner, on the basis of the New Act which is under challenge in this Petition, till next date of hearing."

IMPORTANT DISCLAIMER :

Now the matter seems to be pending and the order which is as good as stay is continued. However it's to be verified from time to time from the official Web site of Bombay High Court regarding further progress of the said matter.

Let's see the previous judgments in nutshell those kept aside the Doctors from the clutches of the said Act.

1. The Division Bench of Hon. Bombay High Court (Nagpur Bench) in its comparatively recent judgment dated 21st October, 2016 has reiterated the earlier views in the case of Indian Medical Association V/s. State of Maharashtra & ors. (Writ Petition No. 4579/2005 )

This is the 3rd Judgment on this Point which has relied upon 2 consecutive reported Judgments in the last year of Division Bench 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, Cri. W.P. No.1731 of 2002) and Dr. Shubhada Motwani V/s. State of Maharashtra (2015 (2) Mh.L.J. 408) wherein it has been 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.

2. 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”.

3. Any shop keeper who is holding a Shop Act License would have been 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 !! Let's hope that it wont happen.

4. After 1977 amendment made to the earlier 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.

5. 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, theaters, other places of public amusements, where problems of overwork, 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.

6. 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.

Fortunately the Lawyers have been excluded in the new Act too.. But the Tax Accountants, Accountants, Architects are again included..

7. 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. 

The Development Control rules of Municipal Corporation restrict use of residential premises for commercial purpose. But in some of the cases like Pune Municipal Corporation, use of residential premises for Doctor's clinic is permitted as it is not a commercial activity.

Alas, It took almost 4 decades after the said amendment to strike down the name of Medical practitioners from the said Definition and  after 2 years again Doctors have been included in the said Act. There has to be a difference between Individual practicing Doctors and Hospitals, Clinic etc. 

8. In these days Doctors are becoming soft targets in the Society as we can see in the news frequently. There may few black sheep in the herd. Nevertheless the Judiciary and more particularly the Higher Judiciary 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.

9. Thus now unless the Court passes adverse orders or makes changes in its previous order, Doctors can have sigh of relief till then.

Thanks and Regards,

Adv. Rohit Erande.

Pune.©