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Judgment
R.K. DESHPANDE, J
Rule, made returnable forthwith. Heard finally by consent of parties.
The petitioner is a medical practitioner as General and Paediatric Surgeon and runs a Nursing Home, viz. Arora Hospital, on the first floor of
Shreewardhan Complex, Ramdaspeth, Nagpur. The petitioner claims that the Nursing Home is duly registered under the Maharashtra Medical Council
Act, 1965 and the certificate of registration to that effect issued on 21Â12Â1993 is placed on record.
The challenge in this petition is to the definition of “establishment†under Section 2(4) of the Maharashtra Shops and Establishments
(Regulation of Employment and Conditions of Service) Act, 2017 (“the new Actâ€), brought into force with effect from 7Â9Â2017, to the extent it
applies to the profession and the establishment of any medical practitioner (including hospital, dispensary, clinic, polyclinic, maternity home and such
others) and requiring such establishment to comply with the provision of Section 6 in respect of its registration with the Facilitator if the employees
engaged are ten or more, and Section 7 regarding intimation of it to be given if the strength of the employees engaged is less than ten. As a result of
registration of such establishment with the Facilitator, the provisions of the said Act become applicable and the employer is under statutory obligation
to comply with it. The challenge is on the ground that it violates the guarantee of the petitioner contained in Article 19(1)(g) of the Constitution of India
to practise profession or to carry on any occupation or business and that it is beyond the competence of the State Legislature.
Initially, on 4Â12Â2017, this Court issued notice to the respondent, returnable on 15Â1Â2018. Separate notice was also directed to be issued to the
Office of AdvocateÂGeneral of the State. The petition was amended on 6Â6Â2018 and we thought it fit to appoint Shri Sunil Manohar, the learned
Senior Advocate as Amicus Curiae to be assisted by Shri Nikhil Gaikwad, Advocate. On 13Â7Â2018, we thought that it would not be necessary for
this Court to go into the question of vires of the provisions of the new Act if the State Government is of the opinion that the medical establishment of
the petitioner is covered by the exemption provided under Section 3(8) of the new Act.
On 24Â10Â2018, we heard the petitioner, appearing in person; also Shri Sunil Manohar, the learned Senior Advocate, appointed as Amicus Curiae;
and Shri Aashutosh Kumbhkoni, the learned AdvocateÂGeneral, at length.
The Maharashtra Shops and Establishments Act, 1948 (referred to as “the old Act) was brought into force with effect from 11Â1Â1948 and it
was to consolidate and amend the law relating to the regulation of conditions of work and employment in shops and commercial establishments,
residential hotels, restaurants, eating houses, theatres, other places of amusement or entertainment and other establishments. Section 2(4) of the old
Act defined “Commercial establishment†as under :
Section 2(4) :
“ “Commercial establishment†means an establishment which carries on, any business, trade or profession or any work in connection with, or
incidental or ancillary to, any business, trade or profession and includes a society registered under the Societies Registration Act, 1980, and a
charitable or other trust, whether registered or not, which carries on whether for purposes of gain or not, any business, trade or profession or work in
connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place
of public amusement or entertainment.â€
Section 2(8) defined the “establishment†as under :
Section 2(8) :
“ “Establishment†means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public
amusement or entertainment to which this Act applies and includes such other establishment as the State Government, may, by notification in the
Official Gazette, declare to be an establishment for the purposes of this Act.â€
Section 7 of the old Act required registration of establishments and upon such registration, such establishments were under obligation to comply with
the statutory obligations created by it. Section 5 of the old Act conferred overriding power upon the State Government to declare any establishment or
class of establishments to which the Act or any of the provisions therein shall apply by issuance of notification in the Official Gazette and upon such
declaration the establishment covered by the notification was deemed to be an establishment within the meaning of Section 2(8) of the old Act.
The inclusion of medical establishment in the definition of “Commercial establishment†under the old Act was the subjectÂmatter of challenge
in the decision of the Apex Court in the case of Dr. Devendra M. Surti v. State of Gujarat, reported in AIR 1969 SC 63. It was a case where the
appellantÂdoctor was having his dispensary and with the help of a solitary nurse or attendant, the patients were examined. It was the contention that
the intention of the Legislature in enacting Section 2(4) was to include only those professions which are carried on in a commercial manner and,
therefore, the dispensary of the appellant doctor does not fall within the definition of “Commercial establishmentâ€. The argument was accepted
and the appellant doctor, who was convicted for an offence under Section 52(e) read with Section 62 of the old Act and Rule 23(1) of the Rules
therein directing him to suffer simple imprisonment for a week and to pay a fine of Rs.25 was set aside.
In the decision of the Division Bench of this Court in the case of State of Maharashtra v. Dhanlaxmi Meisheri, reported in 1981 Mh.L.J. 635, it was
a case of a medical practitioner running a nursing home, which had seven persons, consisting of three Nurses, three Ayahas and one Metrani. The
entire staff did not work at a time but worked in shifts. The challenge was to the notification issued under Section 5 read with the latter part of Section
2(8) of the old Act, which defined the word “establishment†and included in the said definition the expression “such other establishment as the
State Government may, by notification in the Official Gazette, declare to be an establishment for the purposes of the Actâ€. The notification declared
any hospital to be an establishment and the explanation was to define “hospital†mean, inter alia, any maternity home. This Court held that the said
notification insofar as it seeks to include a maternity home run by the medical practitioner within the Act was beyond the powers conferred by the Act
and, therefore, it was held to be invalid. The reliance was placed upon several previous decisions, including the decision in the case of Dr. Devendra
Surti, cited supra.
In another decision of the Division Bench of this Court in the case of Narendra Keshrichand Fulandi and another v. State of Maharashtra, reported
in 1985 Mh.L.J. 1, it was a case where the establishment of a lawyer, who employed only one Clerk, who did miscellaneous work, like keeping briefs
and carrying them to the Court, was covered by the amendment to Section 2(4) of the old Act, the challenge was only to the inclusion of establishment
of a legal practitioner in the definition of a “Commercial establishmentâ€. While upholding the challenge to it on the ground of violation of Article 14
of the Constitution of India, this Court has held that the definition of “Commercial establishment†as explained by judicial opinion, the
establishment of a legal practitioner could not be included in the category of commercial establishment. The Court, therefore, struck down the
amendment so far as it related to the establishment of a legal practitioner and it was held that herding of the establishment of a legal practitioner
together with the commercial establishment was irrational and arbitrary.
The enactments similar to the old Act were prevailing in the various States in the country. Such enactments were held to be deficient, inadequate
and suffering from shortcomings in providing social security benefits to all the employees covered by it. It was felt necessary to provide even platform
for the offline business to compete with the online business and to permit to operate shops and establishments for twentyÂfour hours and all the days
in a week. There was need to bring about uniformity and equity in the provisions of law enforcement, which would also to improve public
accountability, transparancy and facilitate the ease of doing business and create more jobs. A tripartite meeting was, therefore, held at the leval of the
Central Government to discuss the model Act, in which the participants of the trade unions, employees' organisations and the State Governments
shared their views. The model legislation was put on the Internet and also through other means in the public domain. It was approved by the Central
Cabinet for circulation among the State Governments to modify the existing enactment on this pattern.
The State Government approved the model legislation with suitable modifications and it was presented before both the Houses of the State
Assembly and was approved as the Maharashtra Shops and Establishments Act, 2017. It received the assent of the Governor of the State on 7Â9Â‐
2017 and on the same day, it was published in the Official Gazette, bringing it in force and repealing the old Act. The object of the new Act is to
provide for the regulation of the conditions of employment and other conditions of service of workers employed in the shops, residential hotels,
restaurants, eating houses, theatres, other places of public amusement or entertainment and other establishments and for the matters connected
therewith or incidental thereto. SubÂSection (3) of Section 1 of the new Act states that the provisions of this Act except Section 7 shall apply to the
establishments employing ten or more workers and the provisions of Section 7 shall apply to the establishments employing less than ten workers.
Section 2(4) of the new Act defines the term “establishmentâ€, and it runs as under :
Section 2(4) :
“establishment†means an establishment which carries on, any business, trade, manufacture or any journalistic or printing work, or business of
banking, insurance, stocks and shares, brokerage or produce exchange or profession or any work in connection with, or incidental or ancillary to, any
business, trade or profession or manufacture; and includes establishment of any medical practitioner (including hospital, dispensary, clinic, polyclinic,
maternity home and such others), architect, engineer, accountant, tax consultant or any other technical or professional consultant; and also includes a
society registered under the Societies Registration Act, 1860, and a charitable or other trust, whether registered or not, which carries on, whether for
purposes of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto; and includes shop, residential
hotel, restaurant, eating house, theatre or other place of public amusement or entertainment; to whom the provisions of the Factories Act, 1948 does
not apply; and includes such other establishment as the State Government may, by notification in the Official Gazette, declare to be an establishment
for the purposes of this Act.â€
The aforesaid definition to the extent it includes the profession and the establishment of any medical practitioner (including hospital,
dispensary, clinic, polyclinic, maternity home and such others) and requires such establishment having ten or more employees to get itself registered,
as provided under Section 6 of the new Act, with the Facilitator and to  provide an intimation to the Facilitator if the strength of employees is less
than ten, is the subjectÂmatter of challenge in this petition.
Section 4(1) of the new Act confers an overriding power upon the State Government to declare by notification in the Official Gazette any
establishment or class of establishments to which this Act or any of the provisions thereof does not for the time being apply, to be an establishment or
class of establishment to which this Act or any provisions thereof with such modifications of adaptations as may be in the opinion of the State
Government be necessary shall apply from such date as may be specified in the notification. SubÂsection (2) therein states that on such declaration
under subÂsection (1), any such establishment or class of establishments shall be deemed to be an establishment or class of establishments to which
this Act, applies and all or any of the provisions of this Act with such modifications or adaptations as may be specified in such declaration, shall apply
to such establishment or class of establishments or to such worker or persons or class of workers or persons.
Section 6 under Chapter II of registration of establishments compulsorily requires the employer of every establishment employing ten or more
workers to submit an application online in a prescribed form for registration to the Facilitator of the local area concerned, together with such fees and
such selfÂdeclaration and selfÂcertified documents as may be prescribed and contained in Items (a) to (e) under subÂsection (1) therein and obtain a
registration certificate from the Facilitator appointed under Section 28.
Section 7 of the new Act deals with the intimation of new establishment employing less than ten workers. SubÂsection (1) therein requires every
establishment employing less than ten workers to give an intimation of having commenced the business to the Facilitator within a period of sixty days
from the date of commencement of the Act or the date on which the establishment commences its business in the prescribed form, together with such
selfÂdeclaration and selfÂcertified documents as may be prescribed, containing the details, such as the name of the employer and the manager, name
of the establishment, nature of business, number of workers, and such other details as may be prescribed. The proviso below subÂsection (1) requires
obtaining of registration as per the provision of Section 6, if at any point of time, the number of workers engaged in the establishment becomes ten or
more so that the provisions of the Act shall become applicable to such establishment.
Section 11 deals with the opening and closing hours of establishment. Section 12 deals with daily and weekly hours of work in establishment and
interval for rest. Section 13 deals with prohibition of discrimination against woman workers, and subÂsection (1) therein states that no woman workers
shall be discriminated in the matter of recruitment, training, transfers or promotion or wages. Though under subÂsection (2) therein no woman
workers shall be required or allowed to work in any establishment except between the hours of 7 a.m. and 9Â30 p.m., the proviso therein states that
the woman worker with her consent, shall be allowed to work during the said period also, subject to adequate protection of her dignity, honour and
safety, protection from sexual harassment and her transportation from the establishment to the doorstep of her residence as may be prescribed, are
provided by the employer or his authorised representaive or manager or supervisor.
Section 14 of the new Act deals with spreadÂover of a worker in the establishments, which shall not exceed ten and half hours in any day, and in
case of a worker entrusted with intermittent nature of work or urgent work, the spreadÂover shall not exceed twelve hours. Section 15 makes the
provision for overtime wages beyond nine yours a day for fortyÂeight hours a week at the rate of twice his ordinary rate of wages, which shall not
exceed one hundred and twentyÂfive hours in a period of three months. Section 16 permits the employer to keep an establishment open for business
on all days in a week subject to the condition that every worker shall be allowed weekly holiday of at least twentyÂfour consecutive hours of rest.
Section 17 requires employer to furnish identity card to worker.
Chapter IV deals with leave with pay and payment of wages. Every worker shall be allowed a weekly holiday with wages in terms of Section 18 ,
and every worker shall be paid for a period of his leave earned, as provided, at a rate equivalent to the daily average of his wages for the days on
which he actually worked during the preceding three months, exclusive of any earnings in respect of overtime. Chapter V contains welfare provisions,
and Section 19 requires every employer to take such measures relating to the health and safety of the workers including cleanliness, lighting,
ventilation and prevention of fire as may be prescribed. Sections 20 to 25 require every employer to provide the facilities of firstÂaid, drinking water at
suitable points with the provision of sufficient latrine and urinal for men and women, creche, canteen, etc., and to maintain the records. Chapter VI
deals with the enforcement and inspection, Chapter VII deals with the offences and penalties, if it is ultimately found that there is violation of the
statutory provisions.
The statutory obligations contained in the aforesaid provisions upon the employer commence upon the registration of the establishment with the
Facilitator and consequently all the provisions of the said Act become applicable and failure to perform any statutory obligation results in imposition of
penalty and registration of offences, as provided under Chapter VII of the offences and penalties under the new Act. Significantly, the provisions of
Sections 8, 9, 10 and 11 of the new Act are not applicable to the establishments employing less than ten workers. There are no obligations under the
new Act for the establishment of less than ten employees, except to provide intimation as contained in Section 7 of it. Hence, the question of imposing
fine or penalty upon such establishments does not arise.
Dr. Pradeep Arora, the petitioner, appearing in person, has urged that by virtue of the decision of the Apex Court in the case of Dr. Devendra
Surti, and of this Court in the cases of Dhanlaxmi Meisheri and Narendra Fuladi, cited supra, which are followed subsequently by various Division
Benches of this Court, the inclusion of the profession and the establishment of any medical practitioner (including hospital, dispensary, clinic, polyclinic,
maternity home and such others) in the definition of “establishment†under Section 2(4) of the new Act and creating various statutory obligations
upon it by virtue of the provisions of Sections 6 and 7 of the new Act is liable to be struck down. He has also urged that the said provisions violate the
guarantee of the petitioner contained in Article 19(1)(g) of the Constitution of India to practise profession or occupation of a doctor. It is also his
argument that the provisions are beyond the legislative competence and in deviation of the model Act or the suggested legislation. He has also urged
that for absence of preÂlegislative consultation, the provisions are liable to be struck down.
In the decision of the Apex Court in the case of Dr. Devendra Surti, cited supra, the principle of noscitur a sociis was
invoked while interpreting the provision of Section 2(4) of the old Act defining “Commercial establishment†and it was held that even a consulting
room where a doctor examines his patients with the help of a solitary nurse or attendant, would be covered. However, it is further held that certain
essential features or attributes are invariably associated with the words “business and tradeâ€, as understood in the popular and conventional sense
and it is the colour of these attributes which is taken by the other words used in the definition of Section 2(4) of the Act, though their normal import
may be much wider. It is on this reasoning, it was held that the professional establishment of a doctor cannot come within the definition under Section
2(4) of the Act, unless the activity carried on was also commercial in character.
The Apex Court, in Dr. Devendra Surti's case, has made a clear distinction between a professional activity and an activity of a commercial
character. It is held that a professional activity must be an activity carried on by an individual by his personal skill and ingelligence, and unless the
profession carried on also partakes of the character of commercial nature, it would not fall within the definition under Section 2(4) of the Act. After a
detailed discussion, it is held that the presence of the profit motive or the investment of capital tradition associated to the notion of trade and commerce
cannot be given an undue importance in construing the definition of “Commercial establishment†under Section 2(4) of the Act It is held that the
correct test of finding whether a professional activity falls within Section 2(4) of the Act is whether the activity is systematically and habitually
undertaken for production or distribution of goods or for rendering material services to the community or any part of the community with the help of
employees in the manner of a trade or business in such an undertaking.
The Apex Court has in the aforesaid decision also referred to the observations in its earlier decision in the case of The National Union of
Commercial Employees v. M.R. Meher, Industrial Tribunal, Bombay, reported in 1962 Supp (3) SCR 157. While dealing with the question as to
whether work of solicitors is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, we also reproduced here the said
portion as under :
“ When in the Hospital case, [(1960) 2 SCR 866] this Court referred to the organisation of the undertaking involving the cooperation of capital and
labour or the employer and his employees, it obviously meant the cooperation essential and necessary for the purpose of rendering material service or
for the purpose of production. It would be realised that the concept of industry postulates partnership between capital and labour or between the
employer and his employees. It is under this partnership that the employer contributes his capital and the employees their labour and the joint
contribution of capital and labour leads directly to the production which the industry has in view. In other words, the cooperation between capital and
labour or between the employer and his employees which is treated as a working test in determining whether any activity amounts to an industry, is
the cooperation which is directly involved in the production of goods or in the rendering of service. It cannot be suggested that every form or aspect of
human activity in which capital and labour cooperate or employer and employees assist each other is an industry. The distinguishing feature of an
industry is that for the production of goods or for the rendering of service, cooperation between capital and labour or between the employer and his
employees must be direct and must be essential.â€
Applying the aforesaid law laid down, the Apex Court has held in Dr. Devendra Surti's case that the manner in which the activity in question is
organized or arranged, the condition of cooperation between the employer and the employees being necessary for its success and its
object being to render material service to the community can be regarded as some of the features which render the carrying on of a professional
activity to fall within the ambit of Section 2(4) of the Act.
In the decision of the Division Bench of Court in Dhanlaxmi Meisheri's case, cited supra, the challenge was to the
notification issued under Section 5 of the old Act, declaring the hospital to be an establishment, and by explanation, the hospital was defined to mean
any maternity home. The Court has held that the provisions of Section 5 of the old Act have to be read in the light of subÂsection (8) of Section 2,
which includes in the definition of “establishment†such other establishments as may be notified. The Court has held that the normal meaning of
the word “such†is similar to what precedes. The Court, therefore, held that the power of the State Government to issue notification is confined to
something which is similar to or analogus to what precedes the word “suchâ€, invoking the rule of ejusdem generis. It means similar to shop,
commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment.
In the decision of the Division Bench of this Court in Narendra Fuladi's case, this Court has held that there are no common properties or
characteristics to be found in the other commercial establishments and the establishment of a legal practitioner which have been herded together. The
Court has held that the differentia must be intelligible and must be reasonably related to the object of the law. It was held that there was no rational
basis for herding them together, which is done either arbitrarily or irrationally. The Court, therefore, struck down the amendment to Section 2(4) of the
old Act, which sought to enlarge the definition to include the establishment of any legal practitioner, medical practitioner, architect, engineer,
accountant, tax consultant or any technical or professional consultant within the definition of “Commercial establishmentâ€.
In all the aforesaid cases relied upon by the petitioner, the Court was dealing with the establishment of a medical practitioner or a lawyer where
the strength of the employees did not exceed seven. The problem of including the medical or lawyers establishment arose in the definition of
“Commercial establishment†under the old Act, on three counts  (i) the word “profession†was preceded and associated by the words
“business, trade†and, therefore, its meaning was restricted to the attributes of business, trade from which it took colour, (ii) the establishment of
medical practitioner was not specifically and independently included in it, and (iii) there were no common properties or characteristics found between
commercial establishment and the establishment of medical or legal practitioner. In such context, the Court considered the question as to whether such
establishment assumed the character of “Commercial establishmentâ€, as defined under Section 2(4) of the old Act. The old Act was modelled on
the definition of “commercial†nature of establishment and the number of employees engaged in the establishment was of no relevance.
The word “Commercialâ€, which was suffixed to an establishment under the old Act, does not find place in the new Act. The word
“profession†or the words “an establishment of medical practitioner†in the definition of “establishment†in Section 2(4) of the new Act
are not preceded or associated by the words “business, trade†so as to take such colour, as was there under the old Act. Now there is herding of
the establishments having common properties and characteristics in contraÂdistinction with the position in the old Act. The definition of
“establishment†under the new Act is modelled on the definition of “Industry†under Section 2(j) of the Industrial Disputes Act, 1947,
meaning thereby any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or
industrial occupation or avocation of workmen. Thus, there is a drastic change in the complexion after bringing into force of the new Act, and the
grounds on which the Apex Court or this Court construed the various provisions under the old Act no longer survive to challenge the provision of
Section 2(4) contained in the new Act, defining establishment only.
In our view, the provisions of the new Act are designed after careful consideration of certain observations made by the Apex Court and this Court
in the aforesaid decisions. While formulating the definition of “establishment†under Section 2(4) of the new Act, care is taken to separately
include the establishment of medical practitioner, including hospital, dispensary, clinic, polyclinic, maternity home and such others. The criteria of ten or
more employees for applicability of the Act under subÂsection (3) of Section 1 of the new Act, is designed to bring only such establishments, which
partake the character of an industrial establishment. It would not be a matter of exaggeration on our part if we call this provision as the backbone of
the new Act. The legislation has taken care to maintain the distance between the activity carried on by an individual by his personal skill and
intelligence and those carried on or organised by cooperation between the employer and the employee in rendering material services to the Society.
We find this to be in conformity with what is expressed in relation to commercial establishment by the Apex Court in Dr. Devendra Surti's case.
Shri Aashutosh Kumbhkoni, the learned AdvocateÂGeneral, invited our attention to the affidavit of the State Government, where the stand is
taken that the activity covered has now to satisfy three tests  (i) there should be systematic activity, (ii) organized by cooperation between employer
and employee, and (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes. In our view, it is the
harmonious activity carried out in cooperation amongst all the partners in the establishment to render material services to the community with the help
of capital, which is covered by the definition of “establishment†under Section 2(4) of the new Act. Whether the establishment is running in profit
or loss is of no consequence. We find that Shri Kumbhkoni is right in urging that it is a matter of legislative policy and wisdom as to the types of
establishments to be included in the definitation.
Now coming to the question of competency of the State Legislature to bring into force the new Act, Article 246 of the Constitution of India deals
with the fountainÂhead of the powers of Parliament as well as of the State Legislature. In terms of Clause (2) therein, the Parliament and the State
Legislature of any State have power to make laws in respect to any of the matters enumerated in List III in the Seventh Schedule of the Constitution
of India. Entries 24 and 26 under the Concurrent List are reproduced below :
“List III â€" Concurrent List Entry 24 :
Welfare of labour including conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old age pensions and
maternity benefits.
Entry 26 : Legal, medical and other professions.â€
The legislation in question is referable to the subject of the “Welfare of labour, including the conditions of workâ€, contained in Entry No.24,
reproduced above. Entry No.26 deals with the legal, medical and other professions. We have, therefore, no hesitation to accept the argument of Shri
Ashutosh Kumbhkoni, the learned AdvocateÂGeneral, and Shri Sunil Manohar, the learned Senior Advocate, appointed as Amicus Curiae, that the
legislation in question does not suffer from the vires of incompetence. The objects and reasons of the new Act, reproduced earlier, not only take into
consideration the regulation of conditions of employment, but also provide social security benefits to the employees covered by it. It deals with the
statutory liabilities of employer of medical establishment. The new Act is modelled on the legislation suggested by the Central Government to bring
about uniformity and equity in the provisions of law enforcement, to improve public accountability, transparancy and to facilitate the ease of doing
business and create new jobs. The new Act is, therefore, in pith and substance, the legislation covered by Entries 24 and 26 in the Concurrent List and
the State Legislature has complete antonomy and prerogative to make law on these subjects in the absence of any enactment by the Parliament on the
same subjects.
We may usefully refer to the observations made by the Division Bench of this Court in Narendra Fuladi's case, cited supra. In Para 14 of the said
decision, the Court has held that though the establishment of a legal practitioner could not be included as such, this is not to say that the Legislature
was not competent to make a law in respect of legal, medical and other professions, as comprised in Entry No.26 of List III of the Seventh Schedule
of the Constitution of India, consistently with the nature of legal profession and the functions which it had to perform and the special characteristics of
its activity. In Para 19, the Court specifically holds that the legislation cannot be assailed on the ground of lack of legislative competence, as such a
law could be made by the State Legislature on the subject in view of Entry No.26 of List III of the Seventh Schedule. This Court, therefore, rejected
the argument of lack of competence on the part of the State Legislature to bring into force the new Act.
The argument that it is a case of discrimination as the profession or establishment of a lawyer, chartered accountant, etc., falling in the same class
is excluded from the applicability of the new Act, also does not impress us. Firstly, it is the legislative policy and wisdom as to which profession or
establishment is to be included for applicability of the new Act. Secondly, the establishment of a medical practitioner falling in a class similar to a legal
practitioner or a chartered accountant engaging less than ten employees, is excluded from the applicability of the Act. Thirdly, the Legislature seems
to have adopted a practical approach based upon the data available with it indicating that the concept of medical tourism has also increased the
commercial aspect of medical establishments. There are large multiÂspeciality hospitals, chains of hospitals spreading across interÂdistrict, interÂ‐
state resulting in huge employment and engagement of huge workÂforce in the sector. It, therefore, became necessary to safeguard the interest of the
employees and regulate their employment, conditions of service and provide them social security from being exploited under the garb of urgent work.
This is the stand taken on affidavit by the respondent. substance in the challenge Constitution of India. We, therefore, do not find any based upon
Article 14 of the
Article 19 of the Constitution of India deals with the protection of certain rights regarding freedom of speech, etc., and clause (1)(g) therein states
that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. This, however, does not prevent the
State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of the right conferred by the said subÂ‐
clause in terms of clause (6) therein. There is always a presumption in respect of constitutionality of an enactment or any provision contained therein
and the burden lies upon the person who claims the violation of his fundamental right to make out a case and satisfy the Court in respect of such
challenge.
After going through the averments made in the petition and hearing the petitioner in person, we fail to understand as to how and in what manner
the fundamental right of the petitioner to practise medical profession has been taken away by any of the provisions contained in the new Act. There is
total absence of material averments making out a case in respect of it. On the contrary, we find that the provisions contained in Chapters III, IV and
V of the new Act are directed to achieve the object of providing for regulation of conditions of employment and conferring of social security benefits,
in the interests of general public, as provided in Clause (6), which can control the fundamental right under Section 19(1)(g) of the Constitution of India.
We, therefore, do not find any substance in the challenge based upon the violation of fundamental right to practise medical profession.
Now coming to the grievance of the petitioner in respect of the provision of Section 7 of the new Act providing intimation to the Facilitator in
respect of estblishment of a medical practitioner having less than ten employees, we find that the essential object of this provision is to collect the
relevant data and compile the statistical information to formulate the policy of the State Government contained in Article 39 in Part IV of the directive
principles of State policy towards securing  (i) that the citizens, men and women equally, have the right to an adequate means of livelihood, (ii) that
there is equal pay for equal work for both men and women, (iii) that the health and strength of workers, men and women, and (iv) that the citizens are
not forced by economic necessity to enter avocations unsuited to their age or strength. Article 42 requires the State to make the provision for securing
just and humane conditions of work and maternity relief. Article 43 requires the State to make endeavour to secure, by suitable legislation or economic
organisation or in any other way, to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and
social and cultural opportunities. Obviously, such provision, in the form of Section 7, incorporated for collection of data to formulate the further policy,
cannot be assailed on any legitimate ground.
It is urged that in terms of Section 3(8) of the new Act, the provisions contained therein do not apply to the establishments used for treatment or
care of infirm, destitute or mentally unfit. It is urged that the petitioner runs a Nursing Home, duly registered under the Maharashtra Medical Council
Act, 1965. The reference is made to the provisions of the Maharashtra Nursing Home Registration Act, 1949 (“the Nursing Home Actâ€), which
defines under Section 2(4) the “nursing home†to mean any premises used or intended to be used, for reception of persons suffering from any
sickness, injury or infirmity and providing of treatment and nursing for them, and includes a maternity home, and the expression “to carry a nursing
home†means to receive persons in a nursing home for any of the aforesaid purposes and to provide treatment or nursing for them. It is urged that
the establishment of the petitioner would, therefore, be exempted from the applicability of the new Act.
The stand of the respondentÂState Government in response to the aforesaid contention is that the said provisions cover those establishments
which treat or care exclusively for the infirm, destitute or mentally unfit, which are pro bono. The word “treatment†does not necessarily mean
medical treatment, and the word “infirm†is an adjective and conveys a permanent instability, whereas the word “infirm†is used in the
Nursing Home Act and conveys a nonÂpermanent instability. It is also the stand taken that the new Act deliberately excluded the word “sickâ€
used in the Model Act with an intention to exempt only such establishments which exclusively treat and care only for infirm, destitute or mentally unfit.
We would not deal with the challenge or the claim for exemption under Section 3(8) in the present petition. It would be open for the petitioner to
apply for such exemption or make such a claim by producing the relevant material, which can be taken into consideration by the competent authorities
under the Act to exclude the establishment of the petitioner, if possible, from the applicability of the new Act upon such satisfaction.
Lastly, in respect of preÂlegislative consultation, we would note only the fact that the Model Act/suggestive enactment formulated by the Central
Government was designed upon pre legislative consultation so as to bring about uniformity and equity in the provisions of law enforcement and it
was approved by the Central Cabinet for circulation among the State Governments to modify the existing enactments on this pattern. We, therefore,
hold that merely because the new Act makes certain modifications, alterations or additions in the Model Act, such provisions cannot be struck down,
particularly when the basic structure of the Model Act/suggestive enactment is not changed. The State Legislature has complete autonomy and
prerogative to legislate on the subject covered by the new Act.
Before parting with the judgment, we would like to express our gratitude for the able assistance provided by Shri Sunil
Manohar, the learned Senior Advocate, appointed as Amicus Curiae, in throwing light upon the position of law, which we could understand on the
basis of various decisions cited by him.
In the result, we uphold the constitutional validity of the provisions of Section 2(4) defining “establishmentâ€, which takes within its sweep the
establishment of medical practitioner as defined, having ten or more employees for applicability of the Maharashtra Shops and Establishments Act,
2017, Section 4 therein, which empowers the State Government to declare any establishment or class of establishments to which the provisions of the
new Act would be applicable by issuing notifiction in the Official Gazette; and Sections 6 and 7 therein to the extent they require registration of
establishment where the strength of employees engaged is ten or more, and provide an intimation of the establishment to the Facilitator where the
strength of employees engged is less than ten.
The petition is, therefore, dismissed. Rule stands discharged. No order as to costs.