JUDGMENT A. Banerji, J. - Ramesherar Dayal and Shiv Swaroop Gupta made separate applications under S. 7, Payment of Gratuity Act, 1972, hereinafter referred to as the Gratuity Act, for the determination of the amount of gratuity and recovery of the same from their employer Dr. Vinai Kumar Gupta, a medical practitioner at Rampur. Dr. Gupta filed an objection contending that he was not liable to pay any gratuity as the Act was inapplicable to the establishment run by him. The controlling Authority under the Act after hearing the parties determined that a sum of Rs. 340 was payable as gratuity to Rameshwar Dayal and a sum of R. 1,275 payable as gratuity to Shiv Swaroop Gupta. Against the above order Dr. Vinat Kumar Gupta and Shiv Swaroop Gupta field appeals. The appellate authority namely, Additional Labour Commissioner, Uttar Pradesh, Kanpur, by his order, dated 24 September 1976, dismissed the appeal of Dr. Vinai Kumar Gupta upholding the decision of the controlling authority. Dr. Vinai Kumar Gupta has filed the Writ Petition No. 5027 of 1976, challenging the award of gratuity to the opposite parties. 2. The grievance of Shiv Swaroop Gupta is different. He has stated in his Writ Petition No. 1769 of 1977, that his appeal before the appellate authority remained undisposed of. He had claimed before the appellate authority that he was entitled to computation of gratuity for thirty years' service instead of computation on the basis of fifteen years' service. He has only prayed fat the issue of a suitable direction or order to the appellate authority to decide his appeal. Writ petition of Shiv Swaroop Gupta : 3. It is apparent that in the order, dated 14 September 1976, by the appellate authority the case of Dr. Vinai Kumar Gupta alone was considered. The order was passed in Gratuity Appeal Case No. 8 of 1976. There is no reference to the plea taken by Shiv Swaroop Gupta that he was entitled to gratuity based on computation of thirty years' service. It is apparent that his contentions were not considered in the order. His contention was that no order had been passed in his appeal which was numbered as Gratuity Appeal No. 4 of 1976. There is no reference to the plea taken by Shiv Swaroop Gupta that he was entitled to gratuity based on computation of thirty years' service. It is apparent that his contentions were not considered in the order. His contention was that no order had been passed in his appeal which was numbered as Gratuity Appeal No. 4 of 1976. In the counter-affidavit it has been stated that both appeals were heard and dismissed " but it appears that in passing the order by mistake only one appeal has been noted." In the rejoinder affidavit this statement has been refuted. Nothing has been produced on behalf of the respondent-State in this case that the appeal was disposed of then or at a subsequent date. It is, therefore, apparent that the appeal of Shiv Swaroop Gupta remained undisposed of. This appeal which was filed in the year 1976, therefore, needs to be disposed of expeditiously. It will, therefore, be necessary to allow the writ petition of Shiv Swaroop Gupta and issue a direction that his appeal be heard and disposed of expeditiously. Writ petition of Dr. Vinal Kumar Gupta: 4. Sri J. N. Tiwari, learned counsel for the petitioner, Dr. Vinai Kumar Gupta, has contended that the provisions of the Gratuity Act had no application to a doctor's establishment and consequently the order of payment of gratuity to Rameshwar Dayal and Shiv Swaroop Gupta was wholly wrong and without jurisdiction. The basis of his contention was that the Gratuity Act was applicable only to such shops and establishments which came within the purview of S. 1 (3) (b), Gratuity Act. Further, the Uttar Pradesh Dookan Aur Vanijya Adhishthan Adhiniyam, 1942. hereinafter referred to as the Adhiniyam, had no application to the petitioner's establishment. In other words, his contention was that if the provisions of the Adhiaijan had no application to the establishment of the petitioner it would in effect mean that there was no enactment of the State in respect of such an establishment within the meaning of S. 3 (1) (b), Gratuity Act. 5. We have also heard learned Standing Counsel, Sri S. C. Verma, as well as Sri Shyam Narain, learned counsel for Shiv Swaroop Gupta. They have contended that even if the provisions of the Adhiniyam were not applicable to the establishment of the petitioner yet the Provisions of the Gratuity Act were fully applicable. 5. We have also heard learned Standing Counsel, Sri S. C. Verma, as well as Sri Shyam Narain, learned counsel for Shiv Swaroop Gupta. They have contended that even if the provisions of the Adhiniyam were not applicable to the establishment of the petitioner yet the Provisions of the Gratuity Act were fully applicable. Reference will be made at appropriate places to the cases cited at the Bar. 6. It is not in dispute that the petitioner runs a clinic at Rampur which was originally established by his father. The petitioner added a pathological laboratory, x-ray and indoor facilities for patients in this clinic. It is also not in dispute that there are ten or more persons employed in this clinic. It is further not in dispute that both Rameshwar Dayal and Shiv Swaroop Gupta had put in more than five years' service by April 1976. 7. We may now refer to relevant provisions of the Gratuity Act and the Adhiniyam. The relevant provisions of S. 1(3) (h) of the Gratuity Act reads as follows: " 1. Short title, extent, application and commencement:- (3) It shall apply to (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and its establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months: The relevant provisions of the Adhiniyam are as follows:- " 3. The provisions of the Act cot to apply to certain persons, Shops and commercial estaiblishment - (1) the provisions of this Act shall have no application to - (a) employees occupying positions of confidential, mangerial or supervisory character in a shop or commercial establishment, wherein more than five employees are employed: Provided that the number of employees so exempted in a shop or commercial establishment shall not exceed 10 per cent of the total number of employees thereof. (e) establishments for the treatment or care of the sick, infirm, destitute or mentally unfit ; and * * * (5) Powers of the Government to exempt any class of shop or commercial establishment from the operation of the Act. (e) establishments for the treatment or care of the sick, infirm, destitute or mentally unfit ; and * * * (5) Powers of the Government to exempt any class of shop or commercial establishment from the operation of the Act. The State Government may, in public interest, by notification in the gazette, exempt, subject to such conditions as it may impose in this behalf, any shop or commercial establishment or any class of shops or commercial establishments from the operation of all or any of the provisions of this Act......." 8. Reference may also be made to the definition of the words " commercial establishment" and "shop." "'commercial establishment' means any premises, not being the premises of a factory, or a shop, wherein any trade, business, manufacture or any work in connexion with, or Incidental or ancillary thereto, it is carried on for profit and includes a premises, wherein journalistic or printing work, or business of banking Insurance, stock and shares, brokerage or produce exchange is carried on, or which is used as theatre, cinema, or for any other public amusement or entertainment, or where the clerical and other establishment of a factory, to whom the provision of the Factories Act, 1948, do not apply, work. 'shop' means any premises where any wholesale or retail trade or business is carried on, or where services are rendered to customers, and includes all offices, godowns or warehouses whether in the same premises or not, which are used in connexion with such trade or business." 9. The first point urged by Sri Tiwari was that a doctor's clinic is neither a commercial establishment nor a shop. His contention was that a doctor's clinic does not fulfil the requisites of either a commercial establishment or a shop as defined in the Adhiniyam. He urged that since the doctor did not carry on a business for profit in the premises it could not come within the purview of the words as commercial establishment" and it would not be a " shop " since neither any trade or business was being carried on therein nor any service was being rendered to customer. It would depend on the facts of each case whether the premises were being used as a shop or commercial establishment. It would depend on the facts of each case whether the premises were being used as a shop or commercial establishment. It is true that persons who come to the doctor for attending to their ills were not customers for they were not customers for they were not purchasing any service from the doctor. They were only paying a compensation to the doctor for attending to their ills. The concept of business was absent when a doctor attended to his patients in his clinic, who had come to seek treatment from him. It was rendering professional service, for the patient was not the customer in such a case. But where the doctor ran several services in the promises with the help of others and such service could be had by any one even though he was not his patient, on payment of charges, it would not be rendering professional service but would be in the nature of running a business or trade. Consequently, such an establishment would come within the purview of a business of trade for profit. 10. In the case of National Union of Commercial Employees v. Industrial Tribunal, Bombay, (A.I.R. 1962 S. C. 1080). It was held that a solicitor's firm carrying on the work of an attorney did not satisfy the test of an " industry " within the meaning of S. 2 (j), Industrial Disputes Act, 1947. Their Lordships held that the profession of attorney was termed to be a liberal profession and could not be termed as an industry. The question of " Industry " does not arise in the present case and in our opinion this decision is of no help in the present ease. 11. In the present case, the petitioner apart from rendering medical advice or treatment to his patients admittedly provided three other services. Firstly, there was a pathological laboratory, where various pathological tests were also made for people who were patients of other doctors practising in the town; secondly, he had x-ray facilities which also were available for persons who were not his patients and thirdly, he had facilities available for Indoor patients as well. Admittedly, these services were also available to persons who were not his patients and were the patients of other doctors. These services could be had on payment of necessary charges. Admittedly, he had employed persons like the respondents for providing these services. Admittedly, these services were also available to persons who were not his patients and were the patients of other doctors. These services could be had on payment of necessary charges. Admittedly, he had employed persons like the respondents for providing these services. It goes without saying that it was not humanly possible for the petitioner himself to look after personally all these various departments in his clinic. It is, therefore, apparent that the place was run and operated upon by the petitioner not merely as a "doctor's clinic." it was an establishment run as a place of business or trade. There is no averment that these services were being rendered as is charitable Institution or on " no profit - no loss basis." Consequently, it is to be assumed that these services were being rendered with the profit motive. It would, therefore, mean that the petitioner was running a commercial establishment. 12. In the case of Paul v. Stale of Punjab, (A.I.R. 1962 Punj. 280], a Division Beach of the High Court of Punjab considered the question whether the shops of medical practitioners were commercial establishments or not within the provisions of the Punjab Shops and Commercial Establishments Act. the Division Bench considered the matter and hold against the medical practitioners. It was held that since the nursing home in question was not a charitable Institution nor was it being run on " no profit or no loss" basis, it would amount to being run on commercial lines and as such it was a commercial establishment. We are in respectful agreement with the above view. The view taken by the controlling authority and the appellate authority that the petitioner's establishment same within the purview of sommereial establishment or shop. and within the meaning of Sections 2(4) and 2(16) of the Adhiniyam, does not suffer from any error of law. 13. It was then contended that the Adhiniyam did not apply to an establishment for the treatment or care of the sick and infirm, and as such even if the premises was considered to be a commercial establishment or a shop it would not render the petitioner liable for the payment of gratuity. 13. It was then contended that the Adhiniyam did not apply to an establishment for the treatment or care of the sick and infirm, and as such even if the premises was considered to be a commercial establishment or a shop it would not render the petitioner liable for the payment of gratuity. The first part of this contention is acceptable, viz., the provisions of the Adhiniyam may be inapplicable to the clinic of petitioner, but that does not mean that the petitioner would be automatically exempt from the payment of gratuity under the Gratuity Act. Gratuity is to be paid in all such cases where the State Government has enacted a law for shops and commercial establishments in the State. It is also necessary that such an enactment is in force in that State and the establishment has ten or more persons employed on any day in the preceding twelve months. In this State the State Legislature has enacted legislation in respect of shops and commercial establishments and the Adhiniyam is the law in force. 14. Sri J.N. Tiwari, learned counsel for the petitioner, however, contended that if the enactment was inapplicable to a particular type of premises or establishments or to officers and employees of certain offices, it would mean that there was no law in force in respect of such promises, establishments or officers and employees within the meaning of S. 1(3) (b) of the Act. His contention further was that where the enactment is inapplicable, it would mean that there was no Act in force as contemplated under S. 1(3)(b) of the Gratuity Act. In support of this contention he laid emphasis on the words "law for the time being in force." He urged that the words "law for the time being in force" in relation to shops meant that the whole structure of the said law was kept intact. The Adhiniyam having exempted establishments for the treatment and care of the sick was inapplicable. He has referred to a passage from the case of Mohommad Kasim v. Assistant Collector, Central Excise, Madurai, (A.I.R. 1962 Mad. 85 at 93). The Adhiniyam having exempted establishments for the treatment and care of the sick was inapplicable. He has referred to a passage from the case of Mohommad Kasim v. Assistant Collector, Central Excise, Madurai, (A.I.R. 1962 Mad. 85 at 93). FIRS passage reads: " Where certain provisions of an Act are, by means of a legal fiction, deemed to have been imposed under the provisions of another Act, and the structure of that Act is thereby made applicable, what we really have before us is an instance of referential legislation by means of a legal fiction, and not of incorporation proper of one statute in another." 15. In the above case, the provisions of the Sea Customs Act, 1878, were made applicable to the Foreign Exchange Regulation Act 1947, by an amendment in S. 23A of the latter Act. An amendment was introduced in S. 167 (81) of the Sea Customs Act by Act 21 of 1955. It was argued in that case that S. 19 must be considered to have been incorporated by virtue of S. 23A in S. 8, Foreign Exchange Regulation Act, in the year 1952 and any subsequent amendment to the Sea Customs Act could not be read into the Foreign Exchange Regulation Act and as such the conviction for the offence under S. 167 (81) was unsustainable. This argument was negatived by the Full Bench. It would be seen from the above that the question in issue in the Full Bench case was entirely different from the point that has been urged in the present case. Consequently, the observation quoted above has no application to the facts and circumstances in the present case. 16. The real point in issue is whether there is no law in force in respect of shops and commercial establishments in the State in respect of the petitioner's clinic or establishment so that the provisions of the Gratuity Act are inapplicable. It goes without saying that the State has enacted an Adhiniyam in respect of shops and commercial establishments. That Adhiniyam is for regulating the service of the employees and the liabilities of the employers. It makes provision for the closed days of the shops as well as the opening and closing hours of the shops and the payment of wages, etc., to the employees. This legislation has nothing to do with the payment of gratuity. That Adhiniyam is for regulating the service of the employees and the liabilities of the employers. It makes provision for the closed days of the shops as well as the opening and closing hours of the shops and the payment of wages, etc., to the employees. This legislation has nothing to do with the payment of gratuity. Payment of gratuity is provided in the Gratuity Act. Section 1 lays down the extent to which the Act applies. Section 1 (3) (b) of the Gratuity Act makes it clear that it applies where the State has enacted a law for shops and establishments and such a law is in force. As seen above the Adhiniyam is an enactment for shops and commercial establishments in the State of Uttar Pradesh. It is in force. Consequently, the requisites of S. 1 (3) (b) of the Gratuity Act are fulfilled in the present case. The contention of the learned counsel that S. 3 (1) (e) of the Adhlnlyam excludes the application of the Gratuity Act is untenable. Section 3 (1) (e) of the Adhiniyam exempts establishments for the care of the sick and the Infirm from the application of the provisions of the Adhiniyam. It presupposes that such establishments are otherwise within the definition of commercial establishments and shops, but they are statutorily exempted. The next contention was that the exemption is provided under S. 3 (3) of the Adhiniyam only. This is incorrect. Section 3 (3) of the Adhiniyam only empowers the State Government to exempt any shop or commercial establishment or any clans of shops or commercial establishments from the operation of all or any of the provisions of the Act in public interest, i.e., an additional power which the State Government has been given under the Adhiniyam. Merely because S. 3 (1) enumerates the classes of employees or officers or establishments which are exempted from the provisions of the Adhlnlyam does not mean that no law has been enacted by the State in respect of such officers or establishments. 17. A perusal of Sch. II to the Adhiniyam will be relevant. Section 5 of the Adhiniyam provides the hours of business of a shop or commercial establishment. 17. A perusal of Sch. II to the Adhiniyam will be relevant. Section 5 of the Adhiniyam provides the hours of business of a shop or commercial establishment. Section 8 likewise provides that every employer shall keep his shop or commercial establishment closed one day in a week and on such public holidays in a year as may be prescribed, but it makes an exception in the case of shops and commercial establishments of the type included in Sch. II. Item (1) of Sch. II refers amongst others to shops and commercial establishments exclusively or mainly dealing in medicines, medical and surgical appliances. In other words, it means that the hours of closure and the provision for closed day has no application for shops and commercial establishments dealing exclusively or mainly in medicines and medical and surgical appliances. A shop dealing in medicines and medical or surgical appliances would be necessary for the treatment or care of the sick, infirm, destitute or mentally unfit. This does not mean that there is no legislation in respect of shops or commercial establishments. It shows that such shops come within the definition of shops and commercial establishments and that section 3 is only a clause for exempting the provisions of the Adhiniyam. 18. Sri Shyam Narain learned counsel for the petitioner, cited a case of State of Punjab v. Labour Court, Jullundur, (1980-I L. L. N. 39), where the question of the application of the provisions of S. 1(3) (b) of the Gratuity Act was considered in respect of an establishment known as the Hydel Upper Bari Doab Construction Project. In that case work-charged employees on completion of the work assigned to them were retrenched and the retrenchment compensation was paid to them. They claimed that they were also entitled to bonus, gratuity and other allowances and benefits. Gratuity was claimed under the Gratuity Act. The Labour Court held that they were entitled to gratuity but not to bonus and other allowances. The view was upheld by the High Court of Punjab and Haryana and on appeal the Solicitor- General argued that the Gratuity Act could not be invoked because the project did not fall within the scope of S. 1(3) of the Gratuity Act. An argument was raised on behalf of the employers That the Payment of Wages Act was an enactment contemplated by S. 1(3)(b) of the Gratuity Act. An argument was raised on behalf of the employers That the Payment of Wages Act was an enactment contemplated by S. 1(3)(b) of the Gratuity Act. It was argued that the Payment of Wages Act was a Central enactment and section 1(3)(b) contemplated only a law enacted by a State Legislature. Rejecting the argument, their Lordships laid down as follows in Para 4, at page 41: "...We are unable to accept the contention. Section 1(3)(b) speaks of 'any law for the time being in force in relation to shops and establishments in a State There can be no dispute that the Payment of Wages Act is in force in the State of Punjab. . ." A further argument was then raised that the Payment of Wages Act was not a law is relation to "shops" and "establishments." Rejecting this contention their Lordships held in Para. 4, at page 41: ". . We have carefully examined the various provisions of the Payment of Gratuity Act, and we are unable to discern any reason for giving the limited meaning to S. 1(3)(b) urged before us on behalf of the appellant. Section 1 (3) (b) applies to every establishment within the meaning of any law, for the time being in force in relation to establishments in a State. Such an establishment would include an industrial establishment within the meaning of S. 2 (ii) (g) of the Payment of Wages Act..." 19. This decision, therefore, supports the contention of the respondents that the Gratuity Act is applicable to all such shops and establishments both commercial and non-commercial for which there is an enactment in force in the State. Whether it is a law enacted by the State Legislature or it is a Central legislation applicable to the State, it would amount to a "law in force." 20. For the reasons Indicated above, we do not find any force in the contentions raised by the learned counsel for the petitioner that the provisions of the Gratuity Act are inapplicable to the establishment of the petitioner. The petitioner is liable to pay gratuity in accordance with the provisions of the Gratuity Act. 21. In the result, therefore, Writ Petition No. 5027 of 1976, is dismissed and Writ Petition No. 1769 of 1977, is allowed and a direction is issued to respondent 1 to decide the appeal filed by the petitioner at an early date. The petitioner is liable to pay gratuity in accordance with the provisions of the Gratuity Act. 21. In the result, therefore, Writ Petition No. 5027 of 1976, is dismissed and Writ Petition No. 1769 of 1977, is allowed and a direction is issued to respondent 1 to decide the appeal filed by the petitioner at an early date. Parties will bear their own costs in both the petitions.