SATISH KUMAR Vs. STATE OF HARAYANA

JUDGEMENT

(1.) THE petitioners who are medical practitioners and are running Nursing Homes are aggrieved by the notification dated february 28, 1997 (Annexure P. 1) whereby the nursing Homes have been included under the head "type of Establishments" without declaring them as 'commercial Establishment' under Section 2 (l) (iv) of the Punjab Shops and commercial Establishment Act, 1958 (for brevity 'the Act') and the rules framed thereunder. A consequential prayer for quashing order dated April 20/23, 2007 (Annexure P 8) passed by respondent No. 1 has also been made. A further prayer for quashing proceedings concerning prosecution of the petitioners initiated by respondent No. 3 in terms of notices dated March 15, 2008 (Annexures P. 10 and P. 11) issued by the Sub divisional Magistrate, Ambala City has also been made.

(2.) BRIEF facts of the case necessary for the disposal of the instant petition are that the petitioners who are qualified doctors are running their clinics/nursing Homes in District ambala. It is claimed that the Nursing Homes are not commercial establishments and they are only performing the professional activities by using their personal skill and intelligence being doctors. Their grievance is that the respondent-State Government by notification dated february 28, 1997 (Annexure P. 1) has substituted Rule 13 (1) of the Punjab Shops and commercial Establishment, 1958 Rules (for brevity 'the rules') and 'nursing Homes' have been included under the head 'type of establishment' without declaring them as 'commercial establishments' in terms of section 2 ( 1 ) (iv) of the Act. The petitioners have been called upon to deposit the requisite fee of rs. 10,000/- in terms of provision 13 (1) of the rules. The petitioners had earlier approached this Court where notification dated February 28, 1997 (Annexure P. I) was challenged. The writ petition was disposed of on February 4, 2000 on the basis of the statement made by the petitioner therein that they would make a detailed representation and the concerned authority was to consider the same (Annexure p. 3 ). The petitioners are stated to have filed a detailed representation which has been rejected vide order dated October 3, 2000 (Annexure p. 4) holding that in addition to using their own skill, the doctors are employing staff to assist them in their profession and rendering services to the public in return for profit/remuneration/ charges. It was further held that the Nursing homes have been organising their activities in the same manner in which any trade or business is generally organised. The test of habitual and systematic activities has been found to be applicable to them as the doctors with their skill, capital equipment and building, renders service in lieu of fee like any other service organisation. They are found to be profit earning commercial establishments. Even prosecution has been launched by respondent No. 3 by filing a complaint before the Chief Judicial Magistrate, ambala in terms of the provisions of Section 33-A of the Act and the petitioners have been summoned. The order summoning the petitioners have been subject matter of challenge in C. W. P. Nos. 3450/2002 and 1026/2004 which were ultimately disposed of on February 8, 2006 on the ground that the government itself was to reconsider the matter as it thought it proper to withdraw the amendment with regard to certain categories of establishments. The penultimate para of the order of the Division Bench reads thus: "we are informed that in the meanwhile, notification, Annexure P. 2 with respect to privately managed educational institutions and privately managed colleges has been withdrawn. On December 21, 2005, when this matter came up before this Court, the learned Additional Advocate General, haryana, had prayed for an adjournment on the ground that the Government was reconsidering the matter and the case was adjourned to January 25,2006. Today, we are told that no final decision has been taken by the Government on the issue involved. We are, therefore, of the opinion that as the government itself had thought it proper to withdraw the amendments with regard to certain categories of establishments and that the Government is reconsidering the matter de novo, as would be clear from the statement made by the learned Additional advocate General, Haryana on December 21, 2005, it is appropriate that the matter should for the moment be left to the State government. We accordingly direct the state Government to take a final decision either way within a period of four months from the date that a certified copy of this order is supplied to the Advocate General. In the meanwhile, we direct that the interim orders granted by this Court from time to time in various writ petitions shall continue to operate. "

(3.) IN pursuance to the afore-mentioned order, the Government has now passed the order rejecting the representation of the petitioners holding that their activities are purely commercial and such establishments squarely falls within the definition of 'commercial establishment' as defined in Clause (iv) of sub-section 1 of Section 2 of the 1958 Act. Paragraph 4 of the order dealing with the nursing Homes reads thus: