1. The respondent accused is a medical practitioner and is running a nursing home which has a staff of 7 persons consisting of 3 nurses, 3 ayahas and 1 metrani. The entire staff does not work at a time but works in shifts.
2. On or about 5-4-1976 an Inspector of Ward ('B') working under the Bombay Shops and Establishments Act, 1948, visited the nursing home and made his report regarding his observations and came to the conclusion that the maternity home was an establishment within the meaning of the said Act read with the notification issued by the State Government dated 12-4-1973 and consequently a prosecution was launched against the respondent accused under the said Act. The learned Magistrate relying on several authorities of this Court as well of Supreme Court came to the conclusion that a maternity home cannot be said to be a commercial establishment and accordingly the notification issued by the State Government was illegal and invalid and acquitted the respondent.
3. The main contention of the State in this appeal is that it is immaterial whether the maternity home is a commercial establishment or not as by virtue of power vested in the State Government under S. 5 read with the latter part of S. 2(8) which defines the word 'Establishment' and includes in the definition of the word 'Establishment' such, other establishments as the State Government may by notification in the official Gazette, declare to be an establishment for the purpose of the Act,'; the notification is valid notification. According to Mr. Kamat for the State the establishment means anything which is declared by the State Government to be an establishment under S. 5; which on such declaration automatically becomes establishment within the meaning of the act by virtue of sub-s. (8) of S. 2. We have therefore to examine whether the power given to the executive namely the State Government by the Legislature is as wide as is contended on behalf of the State.
4, While considering this contention we will necessarily have to bear in mind that if the executive is given such a wide power by the Legislature whether there is anything in the Act to show or guide the State as to what considerations must prevail while exercising such power or whether exercise of power is without guideline or is uncanalised. This consideration will become necessary in case the contention of Mr. Kamat is to be accepted; as if there is no such guideline provided the delegation of such an unlimited, unguided and uncanalised power could be unconstitutional and invalid.
5. The relevant provisions of the said Act which requires consideration to determine the issue before are us as follows :-
'2. In the Act, unless there is anything repugnant in the subject or context. -
(1) xxx xxx(2) xxx xxx(3) xxx xxx (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, 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 but does not include a factory, shop, residential hotel restaurant eating house theatre or other place of public amusement or entertainment;
(5) x x x(6) x x x(7) x x x (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 the Act.'
5. (1) Notwithstanding anything contained in this Act, the State Government may, by notification in the official Gazette, declare any establishment or class of establishments to which or any person or class of persons to whom, this Act or any provision thereof does not for the time being apply to be an establishment or class of establishments or a person or class of persons to which or whom this Act or any provisions thereof with such modification or adaptation as may in the opinion of the State Government be necessary shall apply from such date as may be specified in the notification.
'(2) On such declaration under sub-s. (1) any such establishment or class of establishments or such person or class of persons shall be deemed to be an establishment or class of establishments to which, or to be an employee or class of employees to whom, this Act, applies and all or any of the provisions of the Act, with such adaptation or modification as may be specified in such declaration shall apply to such establishment or class of establishments or to such employee or class of employees.'
This Act is enacted to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishment, residential hotel, restaurant, eating house, theatre, other place of public amusement or entertainment and other establishments. The definition of the word 'establishment' also refers to the identical categories as those enumerated in the preamble except that the general words, 'and other establishments' in the preamble replaced by the words 'including such other establishments as the State Government may by notification in the official Gazette, declare to be an establishment for the purpose of this Act.' It may be noticed that section 5 gives power to the State Government notwithstanding anything contained in the said Act to declare any establishment or class of establishments to which the said Act or any provision thereof does not for the time being apply, to be an establishment with such modifications or adaptation as may be necessary and that on such declaration such establishment or class of establishments shall be deemed to be an establishment or class of establishment to which the Act applies. It should be noted that the power of the State Government though apparently very wide is nevertheless confined to make such declaration in respect of an establishment. Therefore, the provisions of S. 5 have also to be read in the light of sub-s. (8) of S. 2 which concludes in the definition of establishment such other establishments as may be notified. The important word is the word 'such'. The normal meaning of the word 'such' is similar to what precedes. The normal word that would be used in case the meaning to conveyed was that the power given was to declare something else or something dissimilar to what is mentioned earlier would be the word 'any' and not 'such'. Therefore, the power for the State Government to issue notification is confined to something which is similar to or analogous to what precedes the word 'such'. The common genus applicable to the class preceding the general words is that all the types mentioned are commercial i.e., run as and by way of business in a wider sense. Therefore, the rule of ejusdem generis would apply. Even if the rule of ejusdem generis is not applicable the use of the word 'such' definitely conveys that the power given to the State Government was for declaring some organisation or some organized activity similar to or analogous to the preceding types mentioned, viz., shop commercial establishment, residential hotel restaurant eating house theater or other place of public amusement or entertainment.
6. The said notification declares any hospitals to be an establishment and by the explanation seeks to define 'hospital' to mean inter alia, any maternity home. It, therefore, becomes necessary to examine whether a maternity home run by a doctor by himself or herself can be ejusdem generis with the words preceding the word 'such' or can be said to be analogous thereto. It is clear that it cannot be similar or analogous to anything contained in those words except commercial establishment. However, it is not well settled that an establishment of the employees employed by a lawyers or a medical practitioner cannot be commercial establishment as was defined by the Act before its amendment which seeks to bring within the purview of the Act, lawyer's medical and other professions and is made subsequent to the said notification. It is sufficient for us to refer to some of those cases without going into the details thereof. They are Sakh ram v. Nagpur Corporation 1964 I L.L.J. 156, N. E. Merchant v. State, : (1968)ILLJ187Bom R. S. Deshpande v. Municipal Corporation of Greater Bombay - 77 (1979) Bom. L.R. 55 Dr. D. M. Surti v. State of Gujarat, : 1969CriLJ285 , N.U.C. Employees v. Industrial Tribunal, : (1962)ILLJ241SC . On the reasoning as is given in those judgments the activity of a lawyer or a medical practitioner and the employees employed in connecting therewith cannot be considered ejusdem generis with or analogous to commercial establishment. This being the position a maternity home established and run by a doctor i.e., a medical practitioner cannot be notified to be an establishment under the power vested by S. 5 of the Act.
7. We may here point out that the Legislature being aware of various decisions of the Courts amended the definition of 'commercial establishment' by including therein the establishment of lawyers, medical practitioners and other professionals. It is also worth noting that in spite of these decisions till date the State Government had not issued any notification in respect of the establishments of lawyers or medical practitioners, possibly realising that its power is limited.
8. It is not necessary and hence not considered in detail as to whether the delegation is uncanalised and without guidelines in case State is held to have widest possible power to declare what is establishment. However, it is prima facie clear that if the State Government was to have a power of declaring whatever it chooses to be an establishment so that it can become an establishment under the Act, there is no guideline contained in the Act to determine as to what should be considered an establishment and the probable consequence will be that such power is invalid. We, therefore, must bear in mind this possible consequence while determining the scope and amplitude of the power of the State to declare what is to be an establishment.
9. The view that we have taken finds some support also from the decision of a Division Bench of this Court A. R. Gujar v. The State of Maharashtra reported in : (1969)IILLJ509Bom , it is stated after referring Ss. 2 and 5, inter alia, 'Having made those provisions the Legislature was faced with possibility of some analogous establishment. (We do not use the words here in terms of definition in the Act) may still remain to whom the benefit of the provisions of the Act would be denied'. In this very judgment the Division Bench has held that the power of the State Government was deliberately and expressly made unobstructed by the use of he non-obstante clause. It is therefore, clear that even though the power may considered wide, some restriction must be put on the power as regards the nature of the organisation or the activity which can be declared to be an establishment. The said judgment was not directly concerned with the question that has arisen before us but was concerned with the question as to whether the workers employed on piece rate basis can be considered to be persons to whom the Act can be made applicable by a notification under the provisions of S, 5 of the said Act.
10. In the circumstances we hold that the said notification in so far as it seeks to include a maternity home run by a medical practitioner within the Act is beyond the powers conferred by the Act and, therefor, invalid. We may clarify that we have not considered the effect of the notification in respect of a maternity home owned or run by some person other than a medical practitioner.
11. In the present case it is an admitted position that the proprietor of the maternity home is a medical practitioner and is running the same with the aforesaid staff. There is no evidence to show that the organisation is anything more than consisting of employees who aid the respondent in her medical practice and the entire clientele depends on her personal skill and knowledge.
12. This being the position we confirm the order of the trial Court and dismiss the appeal filed by the State.