Doctors, Closed Shop (Act) is open for you again ?
Doctors, Closed Shop (Act) is open for you again ?
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 OF 2017, introduced in Maharashtra Legislative Assembly on 8th
August, 2017 has categorically included Doctors and Hospitals in the definition
of establishment of said Bill to amend Maharashtra Shops and Establishments
(Regulation of Employment and Conditions of Service) Act, 2017..
Sec. 2(4) of the
said Bill defines “establishments” to which this Act is applicable and it
further includes Doctors as, “…….and includes establishment of any
medical practitioner (including hospital, dispensary, clinic, polyclinic,
maternity home and such others)..” So In previous Act hospital, dispensary,
clinic, polyclinic, maternity home were not categorically included, which find
place in new Legislation.
Applicability of new Act :
The Applicability of this Act has
also been defined in Sec.6, which states that the employer of the establishment
employing 10 or more workers will require to register online its establishment
with “Facilitator” appointed under the new Act thereby furnishing necessary
details. The employers having earlier valid registration or renewal are exempted
from such registration until the expiration of their registration.
Where less than 10 workers are employed
: (Sec.7)
Every establishment employing less
than ten workers shall give an intimation of having commenced the business to
the Facilitator in whose jurisdiction the establishment is located by submitting
online application, in a prescribed form, together with such self-declaration
and self-certified documents, as may be prescribed.
Thus in short, any Doctor or
Hospital irrespective no. of employees have to register themselves with the Facilitator
and they have been covered under the Act.
As still it’s a Bill ( which may
be converted into Act after getting necessary approval as per Law), the Doctor’s
Associations will require to put their grievances, as this decision of
inclusion of the Doctors is converse with 3 Division Bench Judgments of Hon.
Bombay High Court, based on the Judgment of Hon. Apex Court. Nevertheless the
Govt. has every right to do so. But these judgments and their reasoning cannot
be overlooked too..
The Courts decided in favor of
Doctors earlier :
Lets see in brief :
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 !! Now again Doctors will require to go through that Circle.
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.
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.
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 again the Doctors in Maharashtra on their own or collectively will require to knock the doors of Justice for deleting themselves from the applicability of the said Act, if the Government do not take into consideration their grievances based on these judgments (supra).
Thanks and Regards,
Adv. Rohit Erande.
Pune.©
Already Doctors are under Stress of many Acts and Rules made by MLA and MPs. BABUS are their MENTORS. I remember one Powerful Leader of Opposition told "Doctor..WE don't know much about doctors acts and Rules . And when our Grup Leader says "Raise your finger ..all fallow and Law is passed."
ReplyDeleteBABUS NEED SUCH ACTS AND RULES to control doctors.
We have to Have Dialogue with GOVERNMENT.
Now if we are Treated At Par with Comercial/Merchants. .then WE SHALL HAVE TO fallow Comercual Ethics..Corollary of comercialisation. FORGET NOBLE PROFFESION!
We should Demand Fixed Business Time. No compulsion to attend any ..emergency as Obligatory. We can have good Time To Time, Business and Rest and Enjoy Life in remaining Period. All extra charges will be forwarded to patient. Money on the spot or Advance ..cash or DD ..not even Chq. Government should not expect SERVICE DAY AND NIGHT ! Let's face this way also. "आल आन्गावर ..तर घेतल शिन्गावर !" But let it REACH COMMAN MAN That this is due to New Government Policy. We don't want to go that way. Public also should SPEAK OUT WHAT THEY PREFER. TO MLA/ MUCH. ..MP.! Small individuals run Hospitals...available, affordable and some what Reliable also MUST NOT BE EQUATED WITH CORPORATES. THEY ARE PROFIT MAKERS PRIMARILY...any body ONE MANAGING HOSPITAL FOR EARNING MONEY. Like a Business only.
Dr.Anand Hardikar Dombivli.
Already Doctors are under Stress of many Acts and Rules made by MLA and MPs. BABUS are their MENTORS. I remember one Powerful Leader of Opposition told "Doctor..WE don't know much about doctors acts and Rules . And when our Grup Leader says "Raise your finger ..all fallow and Law is passed."
ReplyDeleteBABUS NEED SUCH ACTS AND RULES to control doctors.
We have to Have Dialogue with GOVERNMENT.
Now if we are Treated At Par with Comercial/Merchants. .then WE SHALL HAVE TO fallow Comercual Ethics..Corollary of comercialisation. FORGET NOBLE PROFFESION!
We should Demand Fixed Business Time. No compulsion to attend any ..emergency as Obligatory. We can have good Time To Time, Business and Rest and Enjoy Life in remaining Period. All extra charges will be forwarded to patient. Money on the spot or Advance ..cash or DD ..not even Chq. Government should not expect SERVICE DAY AND NIGHT ! Let's face this way also. "आल आन्गावर ..तर घेतल शिन्गावर !" But let it REACH COMMAN MAN That this is due to New Government Policy. We don't want to go that way. Public also should SPEAK OUT WHAT THEY PREFER. TO MLA/ MUCH. ..MP.! Small individuals run Hospitals...available, affordable and some what Reliable also MUST NOT BE EQUATED WITH CORPORATES. THEY ARE PROFIT MAKERS PRIMARILY...any body ONE MANAGING HOSPITAL FOR EARNING MONEY. Like a Business only.
Dr.Anand Hardikar Dombivli.
Therefore your Association should intervene in time... Fortunately you have judgments on ur side...
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