Judgement

RAMASWAMI, J.: The question involved in this appeal is as to whether a Doctor s dispensary is a "Commercial Establishment" within the meaning of the Bombay Shops and Establishments Act, 1948 (Bombay Act LXXIX of 1948), hereinafter referred to as the Act .

2. The case of the prosecution is that the appellant was a doctor having his dispensary situated near Jakaria Masjid at Ahmedabad. The dispensary is registered as a Commercial Establishment under the provisions of the Act. The complainant Shri Patel visited the dispensary on June 13, 1963 at about 9.50 A. M. and found that though the dispensary was registered as Commercial Establishment under the Act, the Register produced before him at the time of his visit was not maintained as required under Rule 23 (1) of the Rules framed under the Act. Necessary remarks were made by the complainant in the Visit Book of the dispensary. Thereafter, a complaint was filed against the appellant after obtaining sanction for his prosecution under Section 52 (e) of the Act read with Section 62 of the Act and Rule 23 (1) of the Rules. The case was contested by the appellant on the ground that the doctor s dispensary was not a "Commercial Establishment within the meaning of the Act and the provisions of the Act did not therefore apply to his dispensary and the appellant had not committed any offence. The City Magistrate (First Court), (Municipal), Ahmedabad held that the appellant was not guilty and acquitted him. The State of Gujarat took the matter in appeal to the High Court of Gujarat in Criminal Appeal No. 208 of 1964. The appeal was allowed by the High Court by its judgment dated February 14, 1966 and the appellant was convicted for an offence under Section 52 (e) read with Sec. 62 of the Act and R. 23 (1) of the Rules and sentenced to pay a fine of Rs. 25, in default to undergo simple imprisonment for a week.

3. This appeal is brought by certificate from the judgment of the High Court.

4. Before considering the rival contentions of the parties it is necessary to examine the scheme of the Act. The preamble to the Act states that it is an Act "to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, other places of public amusement or entertainment and other establishments". Section 2(4) of the Act defines "Commercial establishment" as follows:-

" 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."

Section 2 (8) states:

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 this Act."

Section 2 (6) and Section 2 (7) read as follows:

"(6) Employee means a person wholly or principally employed, whether directly or through any agency, and whether for wages or other consideration, in or in connection with any establishment; and includes an apprentice, but does not include a member of the employer s family."

"(7) Employer means a person owning or having ultimate control over the affairs of an establishment."

Section 2 (3) and 2 (18) define the expression "closed" and "opened" as meaning "closed or opene