STATE OF MAHARASHTRA Vs. DHANLAXMI V MEISHERI

JUDGEMENT

(1.) The respondent accused is a medical practitioner and is running a nursing home which has staff of 7 persons consisting of 3 nurses 3. Ayahas and 1 Metrani. The entire staff does not work at a time but works in shifts.

(2.) On or about 5-4-1976 an Inspector of ward D working under the Bombay Shops and Establishments Act, 1948, visited the nursing home and made his report regarding his observations and came to the conclusion that the maternity home was an establishment within the meaning of the said Act read with the notification issued by the State Government of dated 12-4-1973 and consequently a prosecution was launched against the respondent accused under the said Act. The learned Magistrate relying on several authorities of this Court as well as of the Supreme Court came to the conclusion that a maternity home cannot be said to be a commercial establishment and accordingly the notification issued by the State Government was illegal and invalid and acquitted the respondent.

(3.) The main contention of the state in this appeal is that it is immaterial whether the maternity home is a commercial establishment or not as by virtue of power vested in the State Government under section 5 read with the latter part of section 2(8) which defines the word "Establishment" and includes in the definitions of the word "Establishment" 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 is a valid notification. According to Mr. Kamat for the State the establishment means anything which is declared by the State Government to be an establishment under section 5 ; which on such declaration automatically becomes establishment within the remaining of the Act by virtue of sub-section (8) of section 2. We have, therefore, to examine whether the power given to the executive, namely, the State Government by the Legislature is as wide as is contended on behalf of the State.