In a judgement which will have far reaching impact on entire medical fraternity and their employees, Nagpur bench of Bombay High Court has upheld the constitutional validity of Maharashtra Shops and Establishment Act to the establishment of any medical practitioners including hospital, dispensary, clinic, polyclinic, maternity home.
Like other set-ups, even the medical establishment with more than 10 employees will have to get itself registered, with the Facilitator. In case the staff strength is less than 10, such establishment will have to provide an intimation to the Facilitator. However, the new act has excluded those establishments which treat or care exclusively for the infirm, destitute or mentally unfit, which are pro bono and the High Court upheld this distinction while appreciating this differentiation.
A division bench consisting of Justice Ravi Deshpande and Justice Vinay Joshi while rejecting a petition filed by Dr Pradeep Arora to inclusion of medical profession under section 2(4) of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, held that statutory provisions are pro-employees.
The High Court also rejected the contention that it would breach fundamental right of a registered medical practitioner to carry on occupation, profession and was unfair to doctors. The act prescribes conditions of service, minimum wages, mandatory facilities which must be provided to staffers, hours of working and over-time and has been made applicable to all establishments and the employer is under statutory obligation to comply with it.
According to petitioner, the provisions have disregarded plethora of rulings given by Supreme Court and High Court, beyond the legislative competence and in deviation of the model Act. The provisions are not made applicable to lawyers and chartered accountants, he rued. He also cited absence of prelegislative as a ground to strike down the provision.
The High Court while upholding legality of provision described it as 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, the High Court noted. The new act has also tried to provide social security benefits to the employees covered by it. It deals with the statutory liabilities of employer of medical establishment, the High Court noted while rejecting the ground of legislative incompetence.
About exclusion of establishments of legal practitioners and chartered accountants, the High Court noted that it was legislative policy and wisdom to include or exclude any profession or establishment from the ambit of this act. Besides, medical establishments with less than ten employees have also been excluded, it noted. The High Court also stated that with growing medical tourism and establishment of big hospital chains, multi-specality hospitals, it has become necessary to safeguard the interest of the employees, regulate their employment, conditions of service and provide them social security from being exploited under the garb of urgent work.
Dr Pradeep Arora appeared in person. Senior Counsel Sunil Manohar and Adv Nikhil Gaikwad appeared as Amicus Curiae. Advocate General Ashutosh Kumbhakoni, Adv Akshay Shinde and Adv Sangita Jachak represented state. Read Original Post >>