Indian Medical Asociation Nagpur vs State Of Mah.Thr.Secr.Mumbai And ...
2016 Latest Caselaw 6262 Bom

                                                                                            wp4579.05.odt

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH AT NAGPUR




                                                                    
                                     WRIT PETITION NO.4579/2005

         PETITIONER:                Indian Medical Association




                                                                   
                                    through its President Dr. Kishor Taori, 
                                    Having office at IMA House, North Ambazari
                                    Road, Nagpur.

                                                       ...VERSUS...




                                                   
         RESPONDENTS :     1.  State of Maharashtra, through its Secretary, 
                             
                                Industries and Labour Department, 
                                Mantralaya, Mumbai - 32. 
                            
                                    2.  The Commissioner of Labour 
                                         State of Maharashtra, Mumbai. 

                                    3.  The Deputy Commissioner of Labour 
                                         State of Maharashtra, Nagpur Division, 
      

                                         240, Bhosla Chambers, Civil Lines, Nagpur. 
   



         -----------------------------------------------------------------------------------------------------
                           Shri B.G. Kulkarni, Advocate for petitioner 
                           Shri A.V. Palshikar, AGP for respondents
         -----------------------------------------------------------------------------------------------------





                                                      CORAM  :  SMT. VASANTI   A   NAIK, AND
                                                                        KUM. INDIRA JAIN, JJ.

DATE : 21.10.2016

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

By this writ petition, filed by the Indian Medical Association,

the petitioner has sought a declaration that the establishments of

individual medical practitioners and the medical practitioners working in

partnership are not commercial establishments within the meaning of

wp4579.05.odt

Section 2 (4) of the Bombay Shops and Establishments Act, 1948. By

amending the writ petition, the petitioner - Association has sought a

declaration that the inclusion of the term 'medical practitioners' in the

definition of 'commercial establishments' in Section 2 (4) of the Act by

amendment is violative of the provisions of Article 14 of the Constitution

of India.

Shri Kulkarni, the learned Counsel for the petitioner -

Association states that the Hon'ble Supreme Court has held as early as in

the year 1969 in the judgment, reported in 1969 Mh.L.J. 391 that the

professional establishments of Doctors do not fall within the ambit of the

definition of 'commercial establishments' under the Bombay Shops and

Establishments Act. It is stated that the judgment of the Hon'ble Supreme

Court is followed by this Court in the judgment, reported in 1981

Mh.L.J. 635. It is stated that this Court has held in the order, dated

12.6.2014 in Criminal Writ Petition No.1731/2002 that the amendment,

that is, sought to be challenged by the petitioner - Association in this case

is ultra vires and is liable to be struck down. It is stated that by the order,

dated 12.6.2014, Criminal Writ Petition No.1731/2002 was allowed after

striking down the amendment, that is, sought to be challenged. It is

stated that a similar view is expressed by this Court time and again and

the prayers made by the petitioner need to be granted.

wp4579.05.odt

Shri Palshikar, the learned Assistant Government Pleader

appearing for the respondents does not dispute the position of law as laid

down by the Hon'ble Supreme Court and this Court in the aforesaid

judgments. It is admitted that the questions involved in this writ petition

stand answered in favour of the petitioner - Association, in view of the

aforesaid judgments.

Hence, for the reasons recorded in the judgments, reported

in reported in 1969 Mh.L.J. 391 and 1981 Mh.L.J. 635 and the

unreported order, dated 12.6.2014 in Criminal Writ Petition

No.1731/2002, we allow this writ petition. In fact, we find that the

declarations, that are sought by the petitioner - Association already stand

granted by the judgments, that are rendered by the Hon'ble Supreme

Court and this Court.

Hence, we make the Rule absolute in terms of prayer

clauses (i) and (i-a). No order as to costs.

                          JUDGE                                                          JUDGE




         Wadkar