Orissa High Court
Dr. Nirupama Rath vs State Of Orissa on 17 January, 1996
Equivalent citations: [1996(73)FLR1400], (1996)IILLJ1101ORI, 1996(I)OLR282
Author: A. Pasayat
Bench: A. Pasayat, D. Misra
JUDGMENT A. Pasayat, J.
1. The only question involved in this writ petition is whether the provisions of the Orissa Shops and Commercial Establishments Act, 1956 (in short "the Act"), the Industrial Disputes Act, 1947, (in short "the Industrial Act"), and the Payment of Bonus Act, 1965 (in short, "the Bonus Act"), have been rightly applied to the petitioner, a doctor, running a clinic.
2. A brief reference to the factual aspects would suffice.
3. The petitioner runs a clinic styled as "Ladies Clinic" at Dargha Bazar in the city of Cut-tack. The Assistant Labour Officer, Cuttack (O.P.2), being of the view that the clinic was to be registered under Section 4 of the Act issued notice requiring the petitioner to obtain registration certificate within seven days to avoid litigation. The impugned notice dated October 3, 1991, is annexed as annexure-1 to the writ application. The petitioner submitted her reply, inter alia, taking the stand that she is not required to register her establishment, as the Act had no application to her case. The plea did not find acceptance by O.P.2, and by the impugned order dated November 27, 1991 (a copy of which is annexed as annexure-3 to the writ petition), he directed registration within fifteen days. Prosecution was threatened in case of non-registration. It was held that the petitioner's clime was an "industry" as defined under the Industrial Disputes Act. Further, by order dated December 2, 1995 (a copy of which is annexed as annexure 4 to the writ petition), he directed payment of bonus to the employee at a particular rate since, according to him, tile petitioner's establishment is covered under the Bonus Act.
4. According to the petitioner, the definition of "commercial establishment" as given in Section 2(4) and "shop" as given in Section 2( 19) do not bring the clinic run by the petitioner within the ambit of the Act. It is further submitted that at no point of time the petitioner was required to place materials on the question whether it is an "industry" or not. Additionally, it is submitted that the Bonus Act has been applied to the petitioner as a consequence of the finding that the clinic is covered by the Act and is an "industry" as defined under the Industrial Disputes Act. The petitioner was not granted any opportunity to have her say, before opposite party No.2 who concluded about liability to pay bonus. Learned counsel for the State on the other hand submitted that the nature of the activities carried on by the petitioner clearly bring her within the ambit of the Act. It is further submitted that the notice issued under the Bonus Act was consequential of the findings referable to the Industrial Disputes Act or the Act. The authority was acting under a separate statute and, therefore, the petitioner's challenge to the notice (annexure-4) is uncalled for.
5. In order to appreciate the rival submissions, three provisions need to be taken note of Sections 2(4), 2(8), and 2(19) have relevance so far as the dispute under the Act is concerned. They read as under:
"2(4) 'commercial establishment means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in official work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such establishments as the State Government may, by notification, declare to be a commercial establishment for the purposes of this Act;"
"2(8) 'establishment', means a shop or a commercial establishment;"
"2(19) 'shop' means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store rooms, god owns or warehouses, whether in the same premises or otherwise, used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, 1948, (LXIII of 1948);"
6. The definition contained in Section 2(4) relates to several classes of establishment. The expression "commercial establishment" brings within its umbrella five different kinds of establishment, viz., commercial, industrial, trading, banking or insurance. They may be simplified by restating it in separate categories as follows: (1) "commercial establishment" means an establishment or administrative service in which the persons employed are mainly engaged in office work; (2) "commercial establishment" means a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house; (3) "commercial establishment" means a theatre or any other place of public amusement or entertainment; and (4) commercial establishment includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of the Act. The commercial establishment does not include a factory to which any of the provisions of the Factories Act, 1948, applies. Obviously, a doctor s clinic cannot fall under the categories (2) and (3) described above. Government has not issued any notification as contemplated in Section 2(4) to include it. The narrower question, therefore, is whether doctor's clinic falls under either of the first two categories.
7. The expression "establishment" is defined in Section 2(8) to mean a shop or a commercial establishment. Since by the definition contained in the first category of Section 2(4), a commercial establishment means an establishment, a place of work cannot be regarded as a commercial establishment unless the activity is conducted in a "shop" or any commercial establishment which is readily tautological. The definition of "shop" which is contained in Section 2(19) shows that in order that any establishment can be regarded as a shop, it is necessary that some "trade" or "business" must be carried out there or some services must be rendered to "customers". The expression "shop" also includes offices, warehouses, storerooms, or go-downs which are used in connection with trade or business. The inevitable conclusion is that a doctor's clinic is not a "shop" within the meaning of Section2(19). A question arose for consideration in respect of a lawyer's office in V. Sasidharan v. Peter and Karunakar(l984-II-LLJ-385). Considering almost in pan ma/ma the provision of the Kerala Shops and Commercial Establishments Act (34 of 1960), the Apex Court observed that the office of the lawyer is not covered by the said Act. 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 examined his, patients with the help of a solitary nurse or attendant. But, in the matter of construing the language of Section 2(4) of the Act, the principle of noscitur a sociis has to be adopted. The presence of the profit motive or the investment of capital tradition associated with the action of trade and commerce cannot be given an undue importance in construing the definition of "commercial establishment" under Section 2(4) 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 of 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(4) of the Act. A person following a liberal profession in any intelligible sense with the active co-operation 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. Considering a similar question in the background of Section 2(4) of the Bombay Shops and Establishments Act (79 of 1948), it was held by the Apex Court in Dr. Devendra M. Surti v. State of Gujarat, (1969-II-LLJ- 116), that a doctor's establishment is not covered.
8. In that view of the matter, we are of the view that the clinic run by the petitioner is not covered by the Act.
9. The further question is whether it is an "industry". The petitioner at no point of time was required to have her say in that regard and the conclusion arrived at by opposite party No.2 while directing registration under the Act, does lot seem to be appropriate. In any event, that question has become academic, in view of our inclusions supra. Further, in para 6 of the counter- affidavit it has been indicated that there was no direction to comply with the provisions of the Industrial Disputes Act.
10. Coming to the question whether the notice for production of records for verification of the question whether the petitioner is required to pay bonus and the direction to pay bonus are concerned, we find that no opportunity was granted to the petitioner before holding her liable to pay bonus. We, therefore, quash the direction for registration as given in annexure-3, and direct that the petitioner shall produce the documents as directed to be produced before the concerned authority, so that the question whether she has any liability to pay bonus under the Bonus Act, can be adjudicated. A fresh notice shall be issued by the concerned authority for the purpose of production of records and it is open to the petitioner to reiterate her stand that she is not required to pay any bonus and/or she is not covered by the Bonus Act.
11. The writ petition is allowed to the extent indicated. No costs.
D. Misra, J.
12. agree.