Thursday, 8 November 2018

Whether Clinics, Nursing Homes Employing Over 10 Persons Come Under Purview Of Maharashtra Shops And Establishments Act?

 In the result, we uphold the constitutional validity of the
provisions of Section 2(4) defining “establishment”, which takes
within its sweep the establishment of medical practitioner as
defined, having ten or more employees for applicability of the
Maharashtra Shops and Establishments Act, 2017, Section 4
therein, which empowers the State Government to declare any
establishment or class of establishments to which the provisions of

the new Act would be applicable by issuing notifiction in the
Official Gazette; and Sections 6 and 7 therein to the extent they
require registration of establishment where the strength of
employees engaged is ten or more, and provide an intimation of
the establishment to the Facilitator where the strength of
employees engged is less than ten.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.7590 of 2017

Dr. Pradeep Arora, The State of Maharashtra,

CORAM : R.K. DESHPANDE & VINAY JOSHI, JJ.
DATED : 2-11-2018




1. Rule, made returnable forthwith. Heard finally by consent
of parties.
2. The petitioner is a medical practitioner as General and
Paediatric Surgeon and runs a Nursing Home, viz. Arora Hospital,
on the first floor of Shreewardhan Complex, Ramdaspeth, Nagpur.
The petitioner claims that the Nursing Home is duly registered
under the Maharashtra Medical Council Act, 1965 and the
certificate of registration to that effect issued on 21121993
is
placed on record.
3. The challenge in this petition is to the definition of
“establishment” under Section 2(4) of the Maharashtra Shops and
Establishments (Regulation of Employment and Conditions of
Service) Act, 2017 (“the new Act”), brought into force with effect
from 792017,
to the extent it applies to the profession and the
establishment of any medical practitioner (including hospital,
dispensary, clinic, polyclinic, maternity home and such others) and

requiring such establishment to comply with the provision of
Section 6 in respect of its registration with the Facilitator if the
employees engaged are ten or more, and Section 7 regarding
intimation of it to be given if the strength of the employees
engaged is less than ten. As a result of registration of such
establishment with the Facilitator, the provisions of the said Act
become applicable and the employer is under statutory obligation
to comply with it. The challenge is on the ground that it violates
the guarantee of the petitioner contained in Article 19(1)(g) of the
Constitution of India to practise profession or to carry on any
occupation or business and that it is beyond the competence of the
State Legislature.
4. Initially, on 4122017,
this Court issued notice to the
respondent, returnable on 1512018.
Separate notice was also
directed to be issued to the Office of AdvocateGeneral
of the State.
The petition was amended on 662018
and we thought it fit to
appoint Shri Sunil Manohar, the learned Senior Advocate as
Amicus Curiae to be assisted by Shri Nikhil Gaikwad, Advocate. On
1372018,
we thought that it would not be necessary for this Court

to go into the question of vires of the provisions of the new Act if
the State Government is of the opinion that the medical
establishment of the petitioner is covered by the exemption
provided under Section 3(8) of the new Act.
5. On 24102018,
we heard the petitioner, appearing in
person; also Shri Sunil Manohar, the learned Senior Advocate,
appointed as Amicus Curiae; and Shri Aashutosh Kumbhkoni, the
learned AdvocateGeneral,
at length.
6. The Maharashtra Shops and Establishments Act, 1948
(referred to as “the old Act) was brought into force with effect from
1111948
and it was to consolidate and amend the law relating to
the regulation of conditions of work and employment in shops and
commercial establishments, residential hotels, restaurants, eating
houses, theatres, other places of amusement or entertainment and
other establishments. Section 2(4) of the old Act defined
“Commercial establishment” as under :

Section 2(4) :
“ “Commercial establishment” means an establishment
which carries on, any business, trade or profession or any
work in connection with, or incidental or ancillary to, any
business, trade or profession and includes a society
registered under the Societies Registration Act, 1980, and a
charitable or other trust, whether registered or not, which
carries on whether for purposes of gain or not, any business,
trade or profession or work in connection with or incidental
or ancillary thereto but does not include a factory, shop,
residential hotel, restaurant, eating house, theatre or other
place of public amusement or entertainment.”
Section 2(8) defined the “establishment” as under :
Section 2(8) :
“ “Establishment” means a shop, commercial
establishment, residential hotel, restaurant, eating house,
theatre, or other place of public amusement or
entertainment to which this Act applies and includes such
other establishment as the State Government, may, by
notification in the Official Gazette, declare to be an
establishment for the purposes of this Act.”
Section 7 of the old Act required registration of
establishments and upon such registration, such establishments
were under obligation to comply with the statutory obligations
created by it. Section 5 of the old Act conferred overriding power
upon the State Government to declare any establishment or class of
establishments to which the Act or any of the provisions therein

shall apply by issuance of notification in the Official Gazette and
upon such declaration the establishment covered by the notification
was deemed to be an establishment within the meaning of
Section 2(8) of the old Act.
7. The inclusion of medical establishment in the definition of
“Commercial establishment” under the old Act was the
subjectmatter
of challenge in the decision of the Apex Court in the
case of Dr. Devendra M. Surti v. State of Gujarat, reported in
AIR 1969 SC 63. It was a case where the appellantdoctor
was
having his dispensary and with the help of a solitary nurse or
attendant, the patients were examined. It was the contention that
the intention of the Legislature in enacting Section 2(4) was to
include only those professions which are carried on in a
commercial manner and, therefore, the dispensary of the appellantdoctor
does not fall within the definition of “Commercial
establishment”. The argument was accepted and the appellantdoctor,
who was convicted for an offence under Section 52(e) read
with Section 62 of the old Act and Rule 23(1) of the Rules therein
directing him to suffer simple imprisonment for a week and to pay

a fine of Rs.25 was set aside.
8. In the decision of the Division Bench of this Court in the
case of State of Maharashtra v. Dhanlaxmi Meisheri, reported in
1981 Mh.L.J. 635, it was a case of a medical practitioner running a
nursing home, which had seven persons, consisting of three Nurses,
three Ayahas and one Metrani. The entire staff did not work at a
time but worked in shifts. The challenge was to the notification
issued under Section 5 read with the latter part of Section 2(8) of
the old Act, which defined the word “establishment” and included
in the said definition the expression “such other establishment as
the State Government may, by notification in the Official Gazette,
declare to be an establishment for the purposes of the Act”. The
notification declared any hospital to be an establishment and the
explanation was to define “hospital” mean, inter alia, any maternity
home. This Court held that the said notification insofar as it seeks
to include a maternity home run by the medical practitioner within
the Act was beyond the powers conferred by the Act and, therefore,
it was held to be invalid. The reliance was placed upon several
previous decisions, including the decision in the case of

Dr. Devendra Surti, cited supra.
9. In another decision of the Division Bench of this Court in
the case of Narendra Keshrichand Fulandi and another v. State of
Maharashtra, reported in 1985 Mh.L.J. 1, it was a case where the
establishment of a lawyer, who employed only one Clerk, who did
miscellaneous work, like keeping briefs and carrying them to the
Court, was covered by the amendment to Section 2(4) of the old
Act, the challenge was only to the inclusion of establishment of a
legal practitioner in the definition of a “Commercial
establishment”. While upholding the challenge to it on the ground
of violation of Article 14 of the Constitution of India, this Court has
held that the definition of “Commercial establishment” as explained
by judicial opinion, the establishment of a legal practitioner could
not be included in the category of commercial establishment. The
Court, therefore, struck down the amendment so far as it related to
the establishment of a legal practitioner and it was held that
herding of the establishment of a legal practitioner together with
the commercial establishment was irrational and arbitrary.

10. The enactments similar to the old Act were prevailing in
the various States in the country. Such enactments were held to be
deficient, inadequate and suffering from shortcomings in providing
social security benefits to all the employees covered by it. It was
felt necessary to provide even platform for the offline business to
compete with the online business and to permit to operate shops
and establishments for twentyfour
hours and all the days in a
week. There was need to bring about uniformity and equity in the
provisions of law enforcement, which would also to improve public
accountability, transparancy and facilitate the ease of doing
business and create more jobs. A tripartite meeting was, therefore,
held at the leval of the Central Government to discuss the model
Act, in which the participants of the trade unions, employees'
organisations and the State Governments shared their views. The
model legislation was put on the Internet and also through other
means in the public domain. It was approved by the Central
Cabinet for circulation among the State Governments to modify the
existing enactment on this pattern.

11. The State Government approved the model legislation
with suitable modifications and it was presented before both the
Houses of the State Assembly and was approved as the
Maharashtra Shops and Establishments Act, 2017. It received
the assent of the Governor of the State on 792017
and on the
same day, it was published in the Official Gazette, bringing it in
force and repealing the old Act. The object of the new Act is to
provide for the regulation of the conditions of employment and
other conditions of service of workers employed in the shops,
residential hotels, restaurants, eating houses, theatres, other places
of public amusement or entertainment and other establishments
and for the matters connected therewith or incidental thereto.
SubSection
(3) of Section 1 of the new Act states that the
provisions of this Act except Section 7 shall apply to the
establishments employing ten or more workers and the provisions
of Section 7 shall apply to the establishments employing less than
ten workers.
12. Section 2(4) of the new Act defines the term
“establishment”, and it runs as under :

Section 2(4) :
“ “establishment” means an establishment which carries
on, any business, trade, manufacture or any journalistic or
printing work, or business of banking, insurance, stocks and
shares, brokerage or produce exchange or profession or any
work in connection with, or incidental or ancillary to, any
business, trade or profession or manufacture; and includes
establishment of any medical practitioner (including
hospital, dispensary, clinic, polyclinic, maternity home and
such others), architect, engineer, accountant, tax consultant
or any other technical or professional consultant; and also
includes a society registered under the Societies Registration
Act, 1860, and a charitable or other trust, whether
registered or not, which carries on, whether for purposes of
gain or not, any business, trade or profession or work in
connection with or incidental or ancillary thereto; and
includes shop, residential hotel, restaurant, eating house,
theatre or other place of public amusement or
entertainment; to whom the provisions of the Factories Act,
1948 does not apply; and includes such other establishment
as the State Government may, by notification in the Official
Gazette, declare to be an establishment for the purposes of
this Act.”
The aforesaid definition to the extent it includes the
profession and the establishment of any medical practitioner
(including hospital, dispensary, clinic, polyclinic, maternity home
and such others) and requires such establishment having ten or
more employees to get itself registered, as provided under
Section 6 of the new Act, with the Facilitator and to provide an

intimation to the Facilitator if the strength of employees is less than
ten, is the subjectmatter
of challenge in this petition.
13. Section 4(1) of the new Act confers an overriding power
upon the State Government to declare by notification in the Official
Gazette any establishment or class of establishments to which this
Act or any of the provisions thereof does not for the time being
apply, to be an establishment or class of establishment to which
this Act or any provisions thereof with such modifications of
adaptations as may be in the opinion of the State Government be
necessary shall apply from such date as may be specified in the
notification. Subsection
(2) therein states that on such declaration
under subsection
(1), any such establishment or class of
establishments shall be deemed to be an establishment or class of
establishments to which this Act, applies and all or any of the
provisions of this Act with such modifications or adaptations as
may be specified in such declaration, shall apply to such
establishment or class of establishments or to such worker or
persons or class of workers or persons.

14. Section 6 under Chapter II of registration of
establishments compulsorily requires the employer of every
establishment employing ten or more workers to submit an
application online in a prescribed form for registration to the
Facilitator of the local area concerned, together with such fees and
such selfdeclaration
and selfcertified
documents as may be
prescribed and contained in Items (a) to (e) under subsection
(1)
therein and obtain a registration certificate from the Facilitator
appointed under Section 28.
15. Section 7 of the new Act deals with the intimation of new
establishment employing less than ten workers. Subsection
(1)
therein requires every establishment employing less than ten
workers to give an intimation of having commenced the business to
the Facilitator within a period of sixty days from the date of
commencement of the Act or the date on which the establishment
commences its business in the prescribed form, together with such
selfdeclaration
and selfcertified
documents as may be prescribed,
containing the details, such as the name of the employer and the
manager, name of the establishment, nature of business, number of

workers, and such other details as may be prescribed. The proviso
below subsection
(1) requires obtaining of registration as per the
provision of Section 6, if at any point of time, the number of
workers engaged in the establishment becomes ten or more so that
the provisions of the Act shall become applicable to such
establishment.
16. Section 11 deals with the opening and closing hours of
establishment. Section 12 deals with daily and weekly hours of
work in establishment and interval for rest. Section 13 deals with
prohibition of discrimination against woman workers, and
subsection
(1) therein states that no woman workers shall be
discriminated in the matter of recruitment, training, transfers or
promotion or wages. Though under subsection
(2) therein no
woman workers shall be required or allowed to work in any
establishment except between the hours of 7 a.m. and 930
p.m.,
the proviso therein states that the woman worker with her consent,
shall be allowed to work during the said period also, subject to
adequate protection of her dignity, honour and safety, protection
from sexual harassment and her transportation from the

establishment to the doorstep of her residence as may be
prescribed, are provided by the employer or his authorised
representaive or manager or supervisor.
17. Section 14 of the new Act deals with spreadover
of a
worker in the establishments, which shall not exceed ten and half
hours in any day, and in case of a worker entrusted with
intermittent nature of work or urgent work, the spreadover
shall
not exceed twelve hours. Section 15 makes the provision for
overtime wages beyond nine yours a day for fortyeight
hours a
week at the rate of twice his ordinary rate of wages, which shall
not exceed one hundred and twentyfive
hours in a period of three
months. Section 16 permits the employer to keep an establishment
open for business on all days in a week subject to the condition
that every worker shall be allowed weekly holiday of at least
twentyfour
consecutive hours of rest. Section 17 requires
employer to furnish identity card to worker.
18. Chapter IV deals with leave with pay and payment of
wages. Every worker shall be allowed a weekly holiday with wages

in terms of Section 18 , and every worker shall be paid for a period
of his leave earned, as provided, at a rate equivalent to the daily
average of his wages for the days on which he actually worked
during the preceding three months, exclusive of any earnings in
respect of overtime. Chapter V contains welfare provisions, and
Section 19 requires every employer to take such measures relating
to the health and safety of the workers including cleanliness,
lighting, ventilation and prevention of fire as may be prescribed.
Sections 20 to 25 require every employer to provide the facilities of
firstaid,
drinking water at suitable points with the provision of
sufficient latrine and urinal for men and women, creche, canteen,
etc., and to maintain the records. Chapter VI deals with the
enforcement and inspection, Chapter VII deals with the offences
and penalties, if it is ultimately found that there is violation of the
statutory provisions.
19. The statutory obligations contained in the aforesaid
provisions upon the employer commence upon the registration of
the establishment with the Facilitator and consequently all the
provisions of the said Act become applicable and failure to perform

any statutory obligation results in imposition of penalty and
registration of offences, as provided under Chapter VII of the
offences and penalties under the new Act. Significantly, the
provisions of Sections 8, 9, 10 and 11 of the new Act are not
applicable to the establishments employing less than ten workers.
There are no obligations under the new Act for the establishment of
less than ten employees, except to provide intimation as contained
in Section 7 of it. Hence, the question of imposing fine or penalty
upon such establishments does not arise.
20. Dr. Pradeep Arora, the petitioner, appearing in person, has
urged that by virtue of the decision of the Apex Court in the case of
Dr. Devendra Surti, and of this Court in the cases of Dhanlaxmi
Meisheri and Narendra Fuladi, cited supra, which are followed
subsequently by various Division Benches of this Court, the
inclusion of the profession and the establishment of any medical
practitioner (including hospital, dispensary, clinic, polyclinic,
maternity home and such others) in the definition of
“establishment” under Section 2(4) of the new Act and creating
various statutory obligations upon it by virtue of the provisions of

Sections 6 and 7 of the new Act is liable to be struck down. He has
also urged that the said provisions violate the guarantee of the
petitioner contained in Article 19(1)(g) of the Constitution of India
to practise profession or occupation of a doctor. It is also his
argument that the provisions are beyond the legislative competence
and in deviation of the model Act or the suggested legislation. He
has also urged that for absence of prelegislative
consultation, the
provisions are liable to be struck down.
21. In the decision of the Apex Court in the case of
Dr. Devendra Surti, cited supra, the principle of noscitur a sociis was
invoked while interpreting the provision of Section 2(4) of the old
Act defining “Commercial establishment” and it was held that even
a consulting room where a doctor examines his patients with the
help of a solitary nurse or attendant, would be covered. However,
it is further held that certain essential features or attributes are
invariably associated with the words “business and trade”, as
understood in the popular and conventional sense and it is the
colour of these attributes which is taken by the other words used in
the definition of Section 2(4) of the Act, though their normal

import may be much wider. It is on this reasoning, it was held that
the professional establishment of a doctor cannot come within the
definition under Section 2(4) of the Act, unless the activity carried
on was also commercial in character.
22. The Apex Court, in Dr. Devendra Surti's case, has made a
clear distinction between a professional activity and an activity of a
commercial character. It is held that a professional activity must be
an activity carried on by an individual by his personal skill and
ingelligence, and unless the profession carried on also partakes of
the character of commercial nature, it would not fall within the
definition under Section 2(4) of the Act. After a detailed
discussion, it is held that the presence of the profit motive or the
investment of capital tradition associated to the notion of trade and
commerce cannot be given an undue importance in construing the
definition of “Commercial establishment” under Section 2(4) of the
Act It is held that the correct test of finding whether a professional
activity falls within Section 2(4) of the Act is whether the activity is
systematically and habitually undertaken for production or
distribution of goods or for rendering material services to the

community or any part of the community with the help of
employees in the manner of a trade or business in such an
undertaking.
23. The Apex Court has in the aforesaid decision also referred
to the observations in its earlier decision in the case of The National
Union of Commercial Employees v. M.R. Meher, Industrial Tribunal,
Bombay, reported in 1962 Supp (3) SCR 157. While dealing with
the question as to whether work of solicitors is not an industry
within the meaning of Section 2(j) of the Industrial Disputes Act,
1947, we also reproduced here the said portion as under :
“ When in the Hospital case, [(1960) 2 SCR 866] this
Court referred to the organisation of the undertaking
involving the cooperation of capital and labour or the
employer and his employees, it obviously meant the
cooperation essential and necessary for the purpose of
rendering material service or for the purpose of production.
It would be realised that the concept of industry postulates
partnership between capital and labour or between the
employer and his employees. It is under this partnership
that the employer contributes his capital and the employees
their labour and the joint contribution of capital and labour

leads directly to the production which the industry has in
view. In other words, the cooperation between capital and
labour or between the employer and his employees which is
treated as a working test in determining whether any
activity amounts to an industry, is the cooperation which is
directly involved in the production of goods or in the
rendering of service. It cannot be suggested that every form
or aspect of human activity in which capital and labour
cooperate or employer and employees assist each other is an
industry. The distinguishing feature of an industry is that
for the production of goods or for the rendering of service,
cooperation between capital and labour or between the
employer and his employees must be direct and must be
essential.”
Applying the aforesaid law laid down, the Apex Court has
held in Dr. Devendra Surti's case that the manner in which the
activity in question is organized or arranged, the condition of
cooperation between the employer and the employees being
necessary for its success and its object being to render material
service to the community can be regarded as some of the features
which render the carrying on of a professional activity to fall within
the ambit of Section 2(4) of the Act.

24. In the decision of the Division Bench of Court in
Dhanlaxmi Meisheri's case, cited supra, the challenge was to the
notification issued under Section 5 of the old Act, declaring the
hospital to be an establishment, and by explanation, the hospital
was defined to mean any maternity home. The Court has held that
the provisions of Section 5 of the old Act have to be read in the
light of subsection
(8) of Section 2, which includes in the
definition of “establishment” such other establishments as may be
notified. The Court has held that the normal meaning of the word
“such” is similar to what precedes. The Court, therefore, held that
the power of the State Government to issue notification is confined
to something which is similar to or analogus to what precedes the
word “such”, invoking the rule of ejusdem generis. It means similar
to shop, commercial establishment, residential hotel, restaurant,
eating house, theatre or other place of public amusement or
entertainment.
25. In the decision of the Division Bench of this Court in
Narendra Fuladi's case, this Court has held that there are no
common properties or characteristics to be found in the other

commercial establishments and the establishment of a legal
practitioner which have been herded together. The Court has held
that the differentia must be intelligible and must be reasonably
related to the object of the law. It was held that there was no
rational basis for herding them together, which is done either
arbitrarily or irrationally. The Court, therefore, struck down the
amendment to Section 2(4) of the old Act, which sought to enlarge
the definition to include the establishment of any legal practitioner,
medical practitioner, architect, engineer, accountant, tax consultant
or any technical or professional consultant within the definition of
“Commercial establishment”.
26. In all the aforesaid cases relied upon by the petitioner, the
Court was dealing with the establishment of a medical practitioner
or a lawyer where the strength of the employees did not exceed
seven. The problem of including the medical or lawyers
establishment arose in the definition of “Commercial
establishment” under the old Act, on three counts (
i) the word
“profession” was preceded and associated by the words “business,
trade” and, therefore, its meaning was restricted to the attributes of

business, trade from which it took colour, (ii) the establishment of
medical practitioner was not specifically and independently
included in it, and (iii) there were no common properties or
characteristics found between commercial establishment and the
establishment of medical or legal practitioner. In such context, the
Court considered the question as to whether such establishment
assumed the character of “Commercial establishment”, as defined
under Section 2(4) of the old Act. The old Act was modelled on
the definition of “commercial” nature of establishment and the
number of employees engaged in the establishment was of no
relevance.
27. The word “Commercial”, which was suffixed to an
establishment under the old Act, does not find place in the new
Act. The word “profession” or the words “an establishment of
medical practitioner” in the definition of “establishment” in
Section 2(4) of the new Act are not preceded or associated by the
words “business, trade” so as to take such colour, as was there
under the old Act. Now there is herding of the establishments
having common properties and characteristics in contradistinction

with the position in the old Act. The definition of “establishment”
under the new Act is modelled on the definition of “Industry” under
Section 2(j) of the Industrial Disputes Act, 1947, meaning thereby
any business, trade, undertaking, manufacture or calling of
employers and includes any calling, service, employment,
handicraft or industrial occupation or avocation of workmen.
Thus, there is a drastic change in the complexion after bringing
into force of the new Act, and the grounds on which the Apex
Court or this Court construed the various provisions under the old
Act no longer survive to challenge the provision of Section 2(4)
contained in the new Act, defining establishment only.
28. In our view, the provisions of the new Act are designed
after careful consideration of certain observations made by the
Apex Court and this Court in the aforesaid decisions. While
formulating the definition of “establishment” under Section 2(4) of
the new Act, care is taken to separately include the establishment
of medical practitioner, including hospital, dispensary, clinic,
polyclinic, maternity home and such others. The criteria of ten or
more employees for applicability of the Act under subsection
(3) of

Section 1 of the new Act, is designed to bring only such
establishments, which partake the character of an industrial
establishment. It would not be a matter of exaggeration on our
part if we call this provision as the backbone of the new Act. The
legislation has taken care to maintain the distance between the
activity carried on by an individual by his personal skill and
intelligence and those carried on or organised by cooperation
between the employer and the employee in rendering material
services to the Society. We find this to be in conformity with what
is expressed in relation to commercial establishment by the Apex
Court in Dr. Devendra Surti's case.
29. Shri Aashutosh Kumbhkoni, the learned AdvocateGeneral,
invited our attention to the affidavit of the State Government,
where the stand is taken that the activity covered has now to satisfy
three tests (
i) there should be systematic activity, (ii) organized
by cooperation between employer and employee, and (iii) for the
production and/or distribution of goods and services calculated to
satisfy human wants and wishes. In our view, it is the harmonious
activity carried out in cooperation amongst all the partners in the

establishment to render material services to the community with
the help of capital, which is covered by the definition of
“establishment” under Section 2(4) of the new Act. Whether the
establishment is running in profit or loss is of no consequence. We
find that Shri Kumbhkoni is right in urging that it is a matter of
legislative policy and wisdom as to the types of establishments to
be included in the definitation.
30. Now coming to the question of competency of the State
Legislature to bring into force the new Act, Article 246 of the
Constitution of India deals with the fountainhead
of the powers of
Parliament as well as of the State Legislature. In terms of
Clause (2) therein, the Parliament and the State Legislature of any
State have power to make laws in respect to any of the matters
enumerated in List III in the Seventh Schedule of the Constitution
of India. Entries 24 and 26 under the Concurrent List are
reproduced below :
“List III – Concurrent List
Entry 24 : Welfare of labour including conditions of
work, provident funds, employers' liability,
workmen's compensation, invalidity and
old age pensions and maternity benefits.

Entry 26 : Legal, medical and other professions.”
The legislation in question is referable to the subject of the
“Welfare of labour, including the conditions of work”, contained in
Entry No.24, reproduced above. Entry No.26 deals with the legal,
medical and other professions. We have, therefore, no hesitation to
accept the argument of Shri Ashutosh Kumbhkoni, the learned
AdvocateGeneral,
and Shri Sunil Manohar, the learned Senior
Advocate, appointed as Amicus Curiae, that the legislation in
question does not suffer from the vires of incompetence. The
objects and reasons of the new Act, reproduced earlier, not only
take into consideration the regulation of conditions of employment,
but also provide social security benefits to the employees covered
by it. It deals with the statutory liabilities of employer of medical
establishment. The new Act is modelled on the legislation
suggested by the Central Government to bring about uniformity
and equity in the provisions of law enforcement, to improve public
accountability, transparancy and to facilitate the ease of doing
business and create new jobs. The new Act is, therefore, in pith
and substance, the legislation covered by Entries 24 and 26 in the

Concurrent List and the State Legislature has complete antonomy
and prerogative to make law on these subjects in the absence of
any enactment by the Parliament on the same subjects.
31. We may usefully refer to the observations made by the
Division Bench of this Court in Narendra Fuladi's case, cited supra.
In Para 14 of the said decision, the Court has held that though the
establishment of a legal practitioner could not be included as such,
this is not to say that the Legislature was not competent to make a
law in respect of legal, medical and other professions, as comprised
in Entry No.26 of List III of the Seventh Schedule of the
Constitution of India, consistently with the nature of legal
profession and the functions which it had to perform and the
special characteristics of its activity. In Para 19, the Court
specifically holds that the legislation cannot be assailed on the
ground of lack of legislative competence, as such a law could be
made by the State Legislature on the subject in view of Entry No.26
of List III of the Seventh Schedule. This Court, therefore, rejected
the argument of lack of competence on the part of the State
Legislature to bring into force the new Act.

32. The argument that it is a case of discrimination as the
profession or establishment of a lawyer, chartered accountant, etc.,
falling in the same class is excluded from the applicability of the
new Act, also does not impress us. Firstly, it is the legislative policy
and wisdom as to which profession or establishment is to be
included for applicability of the new Act. Secondly, the
establishment of a medical practitioner falling in a class similar to a
legal practitioner or a chartered accountant engaging less than ten
employees, is excluded from the applicability of the Act. Thirdly,
the Legislature seems to have adopted a practical approach based
upon the data available with it indicating that the concept of
medical tourism has also increased the commercial aspect of
medical establishments. There are large multispeciality
hospitals,
chains of hospitals spreading across interdistrict,
interstate
resulting in huge employment and engagement of huge workforce
in the sector. It, therefore, became necessary to safeguard the
interest of the employees and regulate their employment,
conditions of service and provide them social security from being
exploited under the garb of urgent work. This is the stand taken on

affidavit by the respondent. We, therefore, do not find any
substance in the challenge based upon Article 14 of the
Constitution of India.
33. Article 19 of the Constitution of India deals with the
protection of certain rights regarding freedom of speech, etc., and
clause (1)(g) therein states that all citizens shall have the right to
practise any profession, or to carry on any occupation, trade or
business. This, however, does not prevent the State from making
any law imposing, in the interests of general public, reasonable
restrictions on the exercise of the right conferred by the said
subclause
in terms of clause (6) therein. There is always a
presumption in respect of constitutionality of an enactment or any
provision contained therein and the burden lies upon the person
who claims the violation of his fundamental right to make out a
case and satisfy the Court in respect of such challenge.
34. After going through the averments made in the petition
and hearing the petitioner in person, we fail to understand as to
how and in what manner the fundamental right of the petitioner to

practise medical profession has been taken away by any of the
provisions contained in the new Act. There is total absence of
material averments making out a case in respect of it. On the
contrary, we find that the provisions contained in Chapters III, IV
and V of the new Act are directed to achieve the object of providing
for regulation of conditions of employment and conferring of social
security benefits, in the interests of general public, as provided in
Clause (6), which can control the fundamental right under
Section 19(1)(g) of the Constitution of India. We, therefore, do
not find any substance in the challenge based upon the violation of
fundamental right to practise medical profession.
35. Now coming to the grievance of the petitioner in respect
of the provision of Section 7 of the new Act providing intimation to
the Facilitator in respect of estblishment of a medical practitioner
having less than ten employees, we find that the essential object of
this provision is to collect the relevant data and compile the
statistical information to formulate the policy of the State
Government contained in Article 39 in Part IV of the directive
principles of State policy towards securing (
i) that the citizens,

men and women equally, have the right to an adequate means of
livelihood, (ii) that there is equal pay for equal work for both men
and women, (iii) that the health and strength of workers, men and
women, and (iv) that the citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength.
Article 42 requires the State to make the provision for securing just
and humane conditions of work and maternity relief. Article 43
requires the State to make endeavour to secure, by suitable
legislation or economic organisation or in any other way, to all
workers, a living wage, conditions of work ensuring a decent
standard of life and full enjoyment of leisure and social and
cultural opportunities. Obviously, such provision, in the form of
Section 7, incorporated for collection of data to formulate the
further policy, cannot be assailed on any legitimate ground.
36. It is urged that in terms of Section 3(8) of the new Act,
the provisions contained therein do not apply to the establishments
used for treatment or care of infirm, destitute or mentally unfit. It
is urged that the petitioner runs a Nursing Home, duly registered
under the Maharashtra Medical Council Act, 1965. The reference is

made to the provisions of the Maharashtra Nursing Home
Registration Act, 1949 (“the Nursing Home Act”), which defines
under Section 2(4) the “nursing home” to mean any premises used
or intended to be used, for reception of persons suffering from any
sickness, injury or infirmity and providing of treatment and nursing
for them, and includes a maternity home, and the expression “to
carry a nursing home” means to receive persons in a nursing home
for any of the aforesaid purposes and to provide treatment or
nursing for them. It is urged that the establishment of the
petitioner would, therefore, be exempted from the applicability of
the new Act.
37. The stand of the respondentState
Government in
response to the aforesaid contention is that the said provisions
cover those establishments which treat or care exclusively for the
infirm, destitute or mentally unfit, which are pro bono. The word
“treatment” does not necessarily mean medical treatment, and the
word “infirm” is an adjective and conveys a permanent instability,
whereas the word “infirm” is used in the Nursing Home Act and
conveys a nonpermanent
instability. It is also the stand taken that

the new Act deliberately excluded the word “sick” used in the
Model Act with an intention to exempt only such establishments
which exclusively treat and care only for infirm, destitute or
mentally unfit.
38. We would not deal with the challenge or the claim for
exemption under Section 3(8) in the present petition. It would be
open for the petitioner to apply for such exemption or make such a
claim by producing the relevant material, which can be taken into
consideration by the competent authorities under the Act to
exclude the establishment of the petitioner, if possible, from the
applicability of the new Act upon such satisfaction.
39. Lastly, in respect of prelegislative
consultation, we would
note only the fact that the Model Act/suggestive enactment
formulated by the Central Government was designed upon prelegislative
consultation so as to bring about uniformity and equity
in the provisions of law enforcement and it was approved by the
Central Cabinet for circulation among the State Governments to
modify the existing enactments on this pattern. We, therefore,

hold that merely because the new Act makes certain modifications,
alterations or additions in the Model Act, such provisions cannot be
struck down, particularly when the basic structure of the Model
Act/suggestive enactment is not changed. The State Legislature
has complete autonomy and prerogative to legislate on the subject
covered by the new Act.
40. Before parting with the judgment, we would like to
express our gratitude for the able assistance provided by
Shri Sunil Manohar, the learned Senior Advocate, appointed as
Amicus Curiae, in throwing light upon the position of law, which
we could understand on the basis of various decisions cited by him.
41. In the result, we uphold the constitutional validity of the
provisions of Section 2(4) defining “establishment”, which takes
within its sweep the establishment of medical practitioner as
defined, having ten or more employees for applicability of the
Maharashtra Shops and Establishments Act, 2017, Section 4
therein, which empowers the State Government to declare any
establishment or class of establishments to which the provisions of

the new Act would be applicable by issuing notifiction in the
Official Gazette; and Sections 6 and 7 therein to the extent they
require registration of establishment where the strength of
employees engaged is ten or more, and provide an intimation of
the establishment to the Facilitator where the strength of
employees engged is less than ten.
42. The petition is, therefore, dismissed. Rule stands
discharged. No order as to costs.
(Vinay Joshi, J.) (R.K. Deshpande, J.)

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