JUDGMENT :

Sanjeev Kumar, J.-In these two petitions, one filed by M/s Indian Dental Association and another and the other filed by M/s Sunny Dental Clinic, the issue that falls for consideration is ‘whether the dental clinic falls within the ambit of the term “establishment” as defined under Section 2(8) of the Jammu and Kashmir Shops and Establishments Act 1966 (The Act of 1966)’.

2. The short grievance projected by the petitioners in these petitions is that, the petitioners are running only the dental healthcare services in their dental clinics and are not carrying on any business, trade or profession. Learned counsel appearing for the petitioners relies upon Section 3 (c) of the Act of 1966 to contend that establishments for treatment and care of the sick, infirm, destitute or mentally unfit are exempted from the operation of the provisions of the Act of 1966.

3. Learned counsel for the petitioners contends that petitioners run dental clinics wherein all dental related services are provided to the patients suffering from dental diseases. He submits that the activity carried on by the petitioners is purely professional and does not have any element of commercial activity as is understood in law. He places reliance upon the judgment of Supreme Court in the Case of Devendra M. Surti Vs. State of Gujarat reported as AIR 1969 SC 63, in which a similar question had come up for consideration in the context of “Doctors’ dispensary” under the Bombay Shops and Establishments Act, 1948 [“Bombay Act”].

4. Hon’ble Supreme Court after referring to definition of “Commercial Establishment” given under Section 2(4) of the Bombay Act, concluded that the ‘Doctors’ Dispensary’ ordinarily does not falls within Section 2(4) of the Bombay Act of 1948, and it would fall within the definition of commercial activity only if the activity is organized in a manner in which the trade or a business is generally organized or arranged and if the activity is systematically or habitually undertaken for rendering material services to the community at large or a part of such community with the help of the employees and if such an activity generally involves cooperation of the employer and the employees. To similar effect is the judgment of the Bombay High Court in Narendra Keshrichand Fuladi and another V. State of Maharashtra, 1985 (1) Bom. C.R. 460 in which the Bombay High Court, following the judgment of Devendra M. Surti (Supra), held that a legal practitioner having an office, cannot be said to be carrying on commercial activity and, therefore, would not fall within the definition of expression “commercial establishment”. In the later judgment rendered in the case of Kavita Pravin Tilwani V. State of Maharashtra, 2014 (4) Bom. C.R (Cri) 150, the High Court of Bombay held that ‘medical practitioner’ does not falls within the definition of the expression “commercial activity” and therefore was not amenable to the Bombay Act.

5. Respondents have filed their objections in the case of M/s Sunny Dental Clinic and the stand taken by the respondents is that the Act of 1966 and the rules framed thereunder do not exempt the applicability of the Act to the doctors’ clinics and therefore doctors’ clinics, health fitness centers, banquet halls, health clinics, X-Ray/ultrasound clinics, etc. are all covered under the Act. It is submitted that petitioner too was registered under the Act, but later on, he did not get his registration renewed nor did he fulfill further obligations under the Act. Accordingly, the impugned notice was issued to the petitioner to attend the office of Assistant Labour Commissioner concerned.

6. During the course of arguments, Mr. Dewakar Sharma, learned Dy. AG appearing for the respondents also drew my attention to SRO No. 740 of 1978 dated 30.11.1978 issued by the Government under Section 4(1) of the Act of 1966, which, as per the learned counsel, applies to private dispensaries, private hospitals and private nursing homes etc. He would, ther