The premises of a Homeo Doctor are not categorized as a 'shop' or 'commercial establishment' under the Kerala Shops and Commercial Establishments Act, 1960, and prosecution for related offenses is dismissed.

P.V.KUNHIKRISHNAN, J.

-------------------------------- Crl.M.C. No.404 of 2014 ----------------------------------------------

Dated this the 04^th day of September, 2024

ORDER

This criminal miscellaneous case is filed to quash Annexure-A1 complaint pending before the Judicial First Class Magistrate Court, Ottapalam, as S.T.No.1513/2013. Petitioner is a Homeo Doctor practicing on her own is the submission. The 2^nd respondent instituted Annexure-A1 complaint against the petitioner before the Judicial First Class Magistrates Court, Ottapalam, alleging offences punishable under Section 2 9 of the Kerala Shops and Commercial Establishments Act , 1960 (for short, Act 1960) and Rule 14 of the Kerala Shops and Commercial Establishments Rules, 1961 (for short, Rules 1961). The allegation in Annexure-A1 complaint is that the petitioner is conducting a 'shop' as defined in (15) of Act 1960 and the petitioner contravened Section 5A of Act 1960 and Rule 10(1A) of Rules 1961. The complainant served an inspection order requesting the petitioner to rectify the defects at the time of inspection and to report compliance of the provisions of Act

1960 and Rules 1961, which were contravened by the petitioner at the time of inspection and is liable to be punished under Section 29 of Act 1960 and Rule 14 of Rules 1961. Hence the complaint. According to the petitioner, even if the entire allegations are accepted, no offence is made out.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. The counsel for the petitioner submitted that even if the entire allegations are accepted, the offence is not made out because the petitioner will not come within the purview of Act 1960 and Rules 1961. The Public Prosecutor submitted that an amendment petition is filed before the trial court as evident by Annexure-R2(f) to correct the words “a Shop as defined in Section 2 (15)” in the complaint as “a Commercial Establishment as defined in (4)” of Act 1960. But the counsel for the petitioner submitted that even if the amendment is allowed, the petitioner’s establishment will not come within the purview of Act 1960 and Rules 1961. I think there is force in the argument of the petitioner.

4. In the complaint it is stated that the premises of the petitioner will come within the purview of ‘shop’ as defined in Act 1960. But in the light of the principle laid down in Thomas Eapen v. Asst. Labour Officer [1993 (2) KLT 241] , the petitioner’s premises cannot be treated as a shop. The relevant portion of the judgment is extracted hereunder:

“4. It is true that by virtue of this notification the provisions of the Maternity Benefit Act have been made applicable to all the establishments as defined in Clause (8) of Section 2 of the Kerala Shops and Commercial Establishments Act , 1960. Clause (8) of says that "establishment" means a shop or a commercial establishment. It is not disputed that this expression will take in hospitals, nursing homes and dispensaries. But, the contention raised is that permanent exemption is granted for hospitals, nursing homes and dispensaries by virtue of Notification No. L.Dis/2186/57/LAD, dated April 17, 1957, quoted above and the said notification has not been cancelled. It is true that the Travancore-Cochin Shops and Establishments Act, 1125, was repealed and re-enacted by the Kerala Shops and Commercial Establishment Act. A provision similar to Section 6 of the Travancore- Cochin Shops and Establishment Act, 1125, is enacted in Section 5 of the Kerala Shops and Comm