Wednesday, 2 November 2016

Running clinics is not a commercial activity: High Court

Running clinics is not a commercial activity: High Court Vaibhav Ganjapure | Times of India | Oct 25, 2016 “A clinic run by a private doctor or their partnership firm can't come under the definition of 'commercial establishment' as per the Bombay Shops and Establishments Act, 1948, the Nagpur bench of Bombay High Court has held. Pronouncing the verdict on the plea filed by the Indian Medical Association (IMA) challenging the validity of Section 2 (7) of the Act, a division bench comprising justice Vasanti Naik and justice Indira Jain, made it clear that doctors or their partnership firms come under the category of 'professionals'. While quashing an amendment of 1977 carried out in the Bombay Shops and Establishments Act, 1948, the judges termed it as ultra vires (beyond the powers). The Maharashtra government through an amendment had brought all these professionals under the Act's ambit through an amendment and issued notices to them in 2005. They were threatened with imposition of fine which will increase with each passing day. In 2005, the Indian Medical Association (IMA), through counsel Bhanudas Kulkarni, challenged this amendment of inclusion of doctors contending that since they are governed by different Acts and even statutory bodies like Medical Council of India (MCI), and hence they are professionals. Citing Supreme Court's 1968 verdict and one more by the high court while hearing a criminal appeal, Kulkarni argued that the maternity home/clinic run by the doctor can't be termed as a commercial activity, as doctors provide service to patients. He pointed out that chains of hospitals can be termed as commercial activity, as doctors were paid for rendering their service. The government opposed his contentions, stating that similar plea by Matru Seva Sangh (MSS) was dismissed by the court earlier, but it failed cut ice with judges.”

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