In 1977 Section 2(4) of the Bombay Shops and Establishments Act, 1948 has been amended and the amended provision reads as under:
“(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 establishment of any legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant or any other technical or professional consultant and also includes) a society registered under the Societies Registration Act, 1866 (XXI of 1860), and 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;”
The Apex Court in the case of Dr. Devendra M. Surti v. The State of Gujarat, reported in AIR 1969 SC 63 has held that private dispensaryof a doctor is not a commercial establishment. The Apex Court in the said Judgment has observed as under:
“7. It is therefore clear that a professional activity must be an activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction therefore between a professional activity and an activity of a commercial character and unless the profession carried on by the appellant also partakes of the character of a commercial nature, the appellant cannot fall within the ambit of Section 2(4) of the Act. In National Union of Commercial Employees and another v. M.R. Meher, Industrial Tribunal, Bombay, 1962 Supp (3) SCR 157 = (AIR 1962 SC 1080) it was held by this Court that the work of solicitors is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and therefore any dispute raised by the employees of the solicitors against them cannot be made the subject of reference to the Industrial Tribunal. ……”
A similar issue had arisen before the Division Bench of this Court in the case of Narendra Keshrichand Fuladi and Anr. v. State of Maharashtra, reported in Mh.L.J. 1985 Page 1. There the question which fell for consideration before the Court was whether a legal practitioner having an office can be treated on par with the other commercial establishments. The Division Bench held that a legal practitioner having an office cannot be said to be carrying on commercial activity and would not fall within the definition of the expression “commercial establishment”. This Bench also, by order dated 12.6.2014 passed in the petition filed vide Criminal Writ Petition No.1731 of 2002 of Dr. (Smt.) Shubhada Motwani v. The State of Maharashtra & Ors.}, has held that the amendment incorporating medical practitioners within the definition of the expression “commercial establishment” will have to be struck down since doctors cannot fall within the definition of the said expression. The writ petition is accordingly allowed in terms of prayer clauses (a) and (b) and is accordingly disposed of.
Case law Submitted by – Rajendra Popat and analysed by CA Sandeep Kanoi