{"id":7359,"date":"2017-09-17T18:13:38","date_gmt":"2017-09-17T12:43:38","guid":{"rendered":"https:\/\/medicosplexus.com\/?p=7359"},"modified":"2017-09-17T18:13:38","modified_gmt":"2017-09-17T12:43:38","slug":"doctors-shop-act-misery-is-back-for-you-again","status":"publish","type":"post","link":"https:\/\/medicosplexus.com\/doctors-shop-act-misery-is-back-for-you-again\/","title":{"rendered":"Doctors, Shop Act misery is back for you again ?"},"content":{"rendered":"
Doctors, Shop Act misery is back for you again ?<\/p>\n
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
\n(Regulation of Employment and Conditions of Service) Act, 2017..<\/p>\n
<\/p>\n
For all latest Medical jobs\u00a0Click here<\/a><\/p>\n <\/p>\n Sec. 2(4) of the said Bill defines \u201cestablishments\u201d to which this Act is applicable and it further includes Doctors as, \u201c\u2026\u2026.and includes establishment of any medical practitioner (including hospital, dispensary, clinic, polyclinic, maternity home and such others)..\u201d So In previous Act hospital, dispensary, clinic, polyclinic, maternity home were not categorically included, which find place in new Legislation.<\/p>\n Applicability of new Act :<\/p>\n 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 \u201cFacilitator\u201d 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.<\/p>\n Where less than 10 workers are employed : (Sec.7) As still it\u2019s a Bill ( which may be converted into Act after getting necessary approval as per Law), the Doctor\u2019s 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..<\/p>\n For all latest Medical jobs\u00a0Click here<\/a><\/p>\n The Courts decided in favor of Doctors earlier :<\/p>\n Lets see in brief :<\/p>\n 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 ) 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\u2019ble Apex Court has held that, \u201cProfessional Establishment of a Doctor does not come under the definition of \u201cCommercial Establishment\u201d 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\u201d.<\/p>\n 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.<\/p>\n 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 \u201cCommercial Establishment\u201d under the said Act and as a result of which all these professionals were required to get themselves registered under the said Act.<\/p>\n 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.<\/p>\n
\nEvery 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.
\nThus 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.<\/p>\n
\nThis is the 3rd Judgment on this Point which has relied upon 2 consecutive reported Judgments in the last year of Division Bench of Hon\u2019ble 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 \u201cCommercial Establishment\u201d 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.<\/p>\n