Del HC | Continuing embargo on spas, violative of their rights’: Court allows reopening of spas, wellness clinics, etc. albeit subject to conditions

Delhi High Court: Prathiba M. Singh, J., while considering the re-opening of spas in GNCTD expressed that:

“While the spread of Covid-19 is the main factor to be considered, it has to be also balanced with the interest of reopening of businesses and establishments to bring back a semblance of normalcy.”

Petitioner an association of wellness Ayurveda and Spa providers in NCT Delhi is aggrieved by the delay by GNCTD and the Ministry of Home Affairs in issuing guidelines for re-opening of spas sought quashing of order dated 03-08-2020 issued by the Ministry of Health and Family Welfare (MoHFW).

After the lockdown in March, 2020, though various other establishments were permitted to reopen and commerce businesses, spas have still been forced to remain closed.

Petitioners relied on MOHFW’s office memorandum dated 18-11-2020 permitting the reopening of spas subject to conditions.

Despite the above, GNCTD did not permit the reopening of spas.

Senior Counsel, Mr Datta submitted that salons and other similar places have been opened but not giving permission for reopening of spas is discriminatory.

This Court vide order dated 04-12-2020 came to a prima facie conclusion that the distinction sought to be made between the salons and spas would be discriminatory.

GNCTD’s affidavit had the only reason for not giving permission on re-opening of spas which was the longer duration of proximity with the client.

Decision

Bench expressed that several developments have taken place including the reduction in the number of COVID-19 cases as also the introduction of a vaccine.

“…the question of reopening any particular class of establishments is a delicate one to be taken after due consideration of the relative merits and demerits.”

As of June, 2020, i.e., almost 6 months ago, salons which offer similar services have already been opened in Delhi, subject to such establishments observing standard operating procedure prescribed by the MoHFW.

High Court opined that the slight difference in the nature of services and a slightly higher percentage of risk due to the proximity of the client and the service provider can be obviated by prescribing stricter measures and safeguards rather than continuing to keep such establishments closed. 

Difference between salons and spas

Court observed that it cannot also be lost sight of that several salons also provide services akin to those provided in spas. The difference between the services provided in Salons and Spas is very minimal. The said services require service providers and service takers to remain in close proximity for sufficient duration.

Hence,

“…while allowing the opening of salons, continuing the embargo on spas would be violative of the rights of these establishments and their employees.”

High Court is conscious of the importance of prescribing strict safeguards that ought to be taken by establishments providing spa services as also the clients who visit the establishments, the continuation of the embargo on reopening of spas is unjustified.

Therefore, in light of the above, Court permitted the reopening of spas, wellness clinic and similar establishments, in the GNCTD, subject to the following conditions:

  • There shall be strict compliance of the conditions specified in the office memorandum of 18-11-2020 prescribed by the MoHFW in respect of spas. The 6 feet distance shall be in general maintained between clients and employees. Insofar as the service providers i.e., therapists etc., are concerned, they shall maintain all standards of hygiene, masking etc., as set out below;
  • In addition, considering the nature of services provided in spas, all employees in such establishments shall undergo fortnightly RTPCR tests, especially the therapists who are likely to come in close contact with the clients.
  • All therapists and other employees, as also the visitors, shall be subjected to thermal temperature checks and if anyone shows any symptoms, they would not be permitted entry in the establishment.
  • All service providers shall wear face shields and masks while providing therapy. For treatments which are longer than thirty minutes, a PPE kit should also be worn in addition.
  • Clients should preferably wear masks to the extent possible, considering the nature of services which are availed of.
  • All visitors/clients shall sign a declaration form to the effect that they have not contracted Covid-19 and if they have, they have tested negative. The establishments are permitted to take a written consent form accepting the risks that may be involved for clients/visitors.
  • Tools including clothing, other apparel, towels etc., used for clients, shall be sanitised after each and every treatment.
  • It shall be ensured that hygienic conditions are maintained in the spas and any other safeguards in force for salons shall also be adhered to by the spas.

Bench permitted to open spas, wellness clinics and similar establishments in light of the above conditions.[Sukaita v. GNCTD,    2021 SCC OnLine Del 61, decided 14-01-2021]


Advocates who appeared for the parties:
Petitioner: Sachin Dutta, Senior Advocate with Lal Singh and Sudhir Tewatia, Advocates. Randhir Kr. Lal, Advocate.
Respondents: Anupam Srivastava, ASC for GNCTD Advocate for R-1.

Shalini Nair, Anjana Gosain & Aditi Amitabh, Advocates. for R-2

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