Decided on February 14,1966



J.B.MEHTA, M.U.SHAH - (1.) This appeal raises a very interesting question as to whether a doctors dispensary is a commercial establishment within the meaning of the Bombay Shops and Establishments Act 1948 hereinafter referred to as the Act.
(2.) It has been filed by the State against the acquittal of the accused- doctor by the City Magistrate (Municipal) Ahmedabad on the charge for the offence under sec. 52(e) of the Act read with sec. 62 and rule 23(1) of the said Act.
(3.) The case of the prosecution was that the accused who was a doctor having his dispensary situated near Jakaria Masjid at Ahmedabad had not maintained the employment register in the prescribed form with the necessary particulars regarding the hours of work in respect of three employees working in the dispensary. The complainant Shops Inspector had visited this dispensary on 13th June 1963 at about 9-50 A.M. and had found that even though the dispensary was registered as a commercial establishment under the Act the employment register produced before him at the time of his visit was not maintained as required under rule 23 The complainant therefore made necessary remarks in the visit book of the dispensary and also in his diary and after necessary sanction filed the present complaint. The accused denied having committed the offence. It was not disputed that the prescribed employment register of hours of work in the prescribed form as required under rule 23(1) was not maintained. The defence of the accused however was that his dispensary was not a commercial establishment as the accused did not carry on any commercial activity in the dispensary. The accused carried on the medical profession which was more of a social service than a means of making money. In view of the restrictions imposed on a medical practitioner under the Medical Practitioners Act a doctor could not advertise his profession and he was in the position of a trustee in relation to his patients and could not divulge the secrets entrusted to him and he was subject to disciplinary code of conduct and such a noble profession could not therefore be considered as a commercial establishment. On this ground it was contended that no offence had been committed. The learned Magistrate allowed the decision of the Bombay High Court in Sakharam Narayan v. The City of Nagpur Corporation. 65 Bom. L. R. 627 in which a lawyers office was not held to be a commercial establishment. The learned Magistrate accepted this reasoning and acquitted the accused. The State has therefore filed the present appeal. This appeal had come up for hearing before our learned brother Sarela J. In view of the importance of this question not only to the medical profession as a whole but also to other similar professions and having regard to the fact that the Bombay and Punjab High Courts have recently taken a different view he has referred this matter to the Division Bench and that is how this matter has come up before us.;

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