Kuldeep Singh Gill vs State of Punjab and anr.

S.D. Bajaj, J.—Heard Solitary point for consideration in Criminal Miscellaneous Nos 109M and 110M both of 1989 is whether doctor''s clinics being run by the petitioner on Partap Singh Road and Dosanjh Road at Moga can be termed as commercial establishments within the meaning of Section 2(iv) of the Punjab Shops and Commercial Establishments Act, 1958.

The relevant provision reads, "commercial establishment" means any premises wherein any business, trade or profession is carried on for profit, and includes journalistic or printing establishment and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on or which if used as hotel, restaurant, boarding or eating house, theatre, cinema or other place of public entertainment or any other place which the Government may declare, by notification in the official Gazette, to be a commercial establishment for the purposes of this Act.

Interpreting an almost similar provision obtaining in Section 2(4) of the Bombay Shops and Establishments Act, 1948 in Dr. Devendra M. Surti v. The State of Gujarat, AIR 1969 Supreme Court 63, their Lordships of the Supreme Court observed, "Private dispensary of a doctor is not a Commercial Establishment within the meaning of the Act and the provisions of the Act do not apply to his dispensary. Therefore his conviction for offence under Section 52(a) read with Section 62 and Rule 23(1) of the Rules made under the Act, is illegal

It is true that Section 2(4) of the Act has used words of very wide import and grammatically it may include even a Consulting room where a doctor examines his patients with the help of a solitary nurse or attendant. But, in the matter of construing the language of Section 2(iv) of the Act the principle of noscitur a socities has to be adopted. 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(iv) of the Act. 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 the employees in the manner of a trade or business in such an undertaking.

A professional activity must be an activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction therefore between a professional activity and an activity of a commercial character and unless the profession carried on by a person also partakes of the character of a commercial nature, he cannot fall within the ambit of Section 2(iv) of the Act.

Thus where professional activity is carried on in such a manner that the condition of the cooperation between the employer and the employees is necessary for its success and its object is to render material service to the community, then these 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(iv). A person following a liberal profession like that of a doctor does not carry on his profession in any intelligible sense with the active cooperation of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. Hence the professional establishment of a doctor cannot come within the definition of Section 2(iv) of the Act.

Applying the ratio of Supreme Court judgment to the facts and circumstances of the present case it is held that both the doctor''s clinics being run by the petitioner at Moga cannot be termed as commercial establishments in terms of Sec. 2(iv) of the Punjab Shops and Commercial Establishments Act, 1958

In this view of the matter, Criminal Miscellaneous Nos. 109M and 110M of 1989 both succeed and are allowed. Criminal complaints Nos. 175185 and 175116 dated 351988 filed by Labour Inspector, Moga, respondent No. 2, against the petitioner in the Court of learned Sub Divisional Judicial Magistrate, Moga, are both quashed;