MS. SUKAITA & ORS.  Vs GOVERNMENT OF NCT OF DELHI & ANR.

W.P.(C) 6555/2020 & W.P. (C) 7366/2020 Page 1 of 9
$~9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th January, 2021.
+ W.P.(C) 6555/2020
MS. SUKAITA & ORS. ….. Petitioners
Through: Mr. Sachin Dutta, Senior Advocate
with Mr. Lal Singh and Mr. Sudhir
Tewatia, Advocates.
Mr. Swastik Singh and Mr. Himanshu
Dagar, Advocates.
Mr. Mukesh Sharma, Advocate.
versus
GOVERNMENT OF NCT OF DELHI & ANR. ….. Respondents
Through: Mr. Anjum Javed, Additional Standing
Counsel, Adv ocate for R -1.
(M:9999596970)
Ms. Shalini Nair , Ms. Anjana Gosain
&Ms. Aditi Amitabh, Adv ocate s. for
R-2. (M:9711018982)
And
+ W.P.(C) 7366/2020 & CM APPL. 31473/2020
ASSOCIATION OF WELLNESS AYURVEDA
AND SPA ….. Petitioner
Through: Mr. Sachin Dutta, Senior Advocate
with Mr. Lal Singh and Mr. Sudhir
Tewatia, Advocates.
Mr. Randhir Kr. Lal, Advocate.
(M:9811116796)
versus
GOVERNMENT OF NCT OF DELHI & ORS. ….. Respondents
Through: Mr. Anupam Srivastava, ASC for
GNCTD Adv ocate for R -1.
Ms. Shalini Nair, Ms.Anjana Gosain &
Ms.Aditi Amitabh, Advocates. for R -2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. This hearing has been done in physical Court.
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CM APPL. 1359/2021 (for impleadment) in W.P.(C) 6555/2020
2. This application for impleadment has been filed by World Men’s
Hospitality Pvt. Ltd. Since the applicant seeks remedies similar to the
Petitioners in W.P. (C) 6555/2020, impleadment is allowed . Application is
disposed of.
W.P.(C) 6555/2020
W.P.(C) 7366/2020 & CM APPL. 31473/2020 (for directions)

3. The Petitioner in W.P (C) 7366/2020 is an association of w ellness
Ayurveda and S pa providers in NCT Delhi . The Petitioner is aggrieved by
the delay by GNCTD and the Ministry of Home Affairs in issuing guidelines
for re-opening of spas and seeks quashing of order dated 3rd August, 2020
issued by the Ministry of Health and Family Welfare (hereinafter,
“MoHFW ”). In W.P (C) 6555/2020, the Petitioners are technical workers
who have been trained under various national bodies and run spas in Delhi.
In effect , the grievance of the Petitioners is that, after the lockdown in
March 2020, though various other establishments have been permitted to
reopen and commence businesses, spas have still been forced to remain
closed.
4. The Petitioner s rely on the MoHFW ’s office memorandum dated 18th
November, 2020 permitting reopening of spas subject to various conditions.
Despite the same, the GNCTD has not permitted the reopening of spa s. Mr.
Datta, l d. Senior counsel appearing for the Petitioner submits that, on the
one hand, salons and other similarly placed cent ers have already opened,
however spas are not being permitted to be opened, which is completely
discriminatory. He further submits that the guidelin es issued by the GNCTD
continue to place an embargo on the re-opening of spas. Reference is made
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to the Delhi D isaster Management Authority’s order dated 1st June, 2020,
which explicitly prohibits the reopening of spas, as well as the affidavits
filed on behalf of the GNCTD, including the most recent affidavit dated 15th
December, 2020 wherein the GNCTD has refused to permit the reopening of
spas.
5. This Court, vide order dated 4th December, 2020 , had come to a prima
facie conclusion that the distinction sought to be made between salo ns an d
spas would be discriminatory. The Court observed that the additional
affidavit filed by GNCTD ga ve two reasons for not permitting reopening of
spas and observed as under:
“1. The additional affidavit filed on behalf of the
respondent no.1 gives two reasons for not permitting
the activity of the petitioners;
1) That the final decision from the Ministry
of Home Affairs, Government of India,
respondent no.2, has not been received with
respect to opening of Spas;
2) That the Lieutenant Governor of Delhi has
declined to grant permission to modify the
status quo as the number of Covid -19 cases
are increasing and no physical distancing is
possible in the setting of Spas.

2. As far as the first reason is concerned, the learned
counsel for the petitioners and the learned cou nsel for
the respondent no.2 have clarified that the Ministry of
Health and Family Welfare by its Office Memorandum
dated 18.11.2020 has already issued the Standard
Operating Procedure for allowing the functioning of
Spas. The Ministry of Home Affairs has also issued the
Order dated 25.11.2020 detailing the guidelines of
surveillance, containment and caution to be enforced
up to 31.12.2020. In terms of Para 9 of the guidelines,
all activities except the ones mentioned in the said
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paragraph have been permitt ed outside the
containment zones. This would necessarily include
Spas.

3. The learned counsel for the respondent no.1,
however, maintains that it would not be possible to
meet the conditions as stipulated in paragraph 3(a) of
the Office Memorandum dated 1 8.11.2020 in respect to
Spas.

4. In this regard, the learned counsel for the petitioners
has submitted that other businesses, specifically in
relation to Salons, having similar issues, have been
permitted by the respondent no.1 to operate. They
submit tha t the additional affidavit also does not give
any reasons for discriminating between the two
activities.

5. I prima facie find merit in the submissions made by
the learned counsels for the petitioners.

6. The respondent no.1 shall take a fresh decision o n
the above submission of the petitioners and file an
affidavit in this regard within a week from today.”

6. Thus, the Court after finding merit in the stand of the Petitioners, gave
an opportunity to the GNCTD to reconsider the matter and file an affidavit.
Pursuant to the said order, the GNCTD has now filed an affidavit wherein it
states as under:
“2. That, in compliance of the order dated
04.12.2020, the issue was referred to the Health
and Family Welfare Department, GNCTD for
providing reasons for differential treatment of
business of salon and that of spas. It has been
opined by the Health Department that in salons
there is limited duration of tim e of contact between
the client and the service provider whereas in
setting of a spa there is prolonged contact between
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the two individuals, that too in a small and closed
room, which raises the probability of spread of
COVID.
3. That, in the light of expert advice tendered by
the Director General of Health Service, (DGHS),
GNCTD the matter was placed before the
Chairman, Delhi Disaster Management Authority
i.e, the Hon’ble Lt. Governor of Delhi and the
expert opinion of DGHS was taken into
consideration and the competent authority has
decided to maintain status quo with respect to
opening of sp as in GNCT of Delhi till further
orders keeping in mind the larger public interest.”

7. A perusal of the above affidavi t shows that the only reason given is a
longer duration of proximity with the client which is the cause for concern.
This Court has heard ld. counsel s for the Petitioners as also for the GNCTD
and the Union of India. A perusal of the office memorandum dated 18th
November , 2020 issued by the M oHFW shows clearly that a dec ision has
been taken to reopen spas, subject to the following conditions:
“The matter has been examined and it is informed
that his Ministry may not have any objection to
opening up of Spas subject to the following
conditions :-

(a) The employees and clients of Spas maintain
requisite physical distancing of 6 feet in the
premises, avoid overcrowding, use masks,
maintain hand hygiene, and sanitize the
environment and equipment regularly.
(b) MHA has no objection and/or approves it
through their next Unlock order. ”

8. Subsequent to November, 2020 , as on date, several developments
have taken place , including the reduction in the number of Covid -19 cases as
also the introduction of a vaccine. Moreover, a large number of
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establishments have already reopened and reopening o f schools and colleges
is also being contemplated. There is however no doubt that t he question of
reopening any particular class of establishments is a delicate one to be taken
after due consideration of the relative merits and demerits . 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. These establishments provide direct and indirect
employment to a large number of employees and their businesses have come
to a standstill since the outbreak of the pandemic. As of June, 2020, i.e.,
almost six months ago, salons which offer similar services have already
been opened in Delhi , subject to such establishme nts observing the standard
operating procedure prescribed by the MoHFW on 3rd August, 2020, which
prescribe s the following general measures:
i. Individuals must maintain a minimum distance of 6 feet as far
as feasible.

ii. Use of face covers/masks is mandatory at all times with in the
premises. However, during yoga exercise or exercising in
gymnasiums, as far as possible only a visor may be used. Use
of mask (in particular N -95 masks) during exercise may cause
difficulty in breathing.

iii. Practice frequent hand washing with soap (for at least 40 -60
seconds) even when hands are not visibly dirty. Use of alcohol –
based hand sanitizers (for at least 20 seconds) can be practiced
wherever feasible.

iv. Respiratory etiquettes to be strictly followed. This involves
strict practice of covering one’s mouth and nose while
coughing/sneezing with a tissue/handkerchief/flexed elbow and
disposing off used tissues properly.

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v. Self-monitoring of health by all and reporting any illness at the
earliest to state and district helpline.

vi. Spitting should be strictly prohibited.

vii. Installation & use of Aarogya Setu App shall be advised to all.

9. This Court is of the opinion 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. It also cannot be lost sight of that s everal salons also provide
services akin to those provided in spas. Thus, the difference between the
services provided in Salons and Spas is very minimal. Both these services
require service providers and service takers to remain in close proximity for
a sufficient duration. Thus , while allowing the opening of salons , continuing
the embargo on spas would be violative of the rights of these establishments
and their employees .
10. While this 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 these establishment s, the continuation of the
embargo on reopening of spas is unjustified . Accordingly, this Court permits
the reopening of spas , wellness clinics and similar establishments, in the
GNCTD, subject to the following conditions:
i. There shall be strict compliance of the condition s specified in the
office memorandum of 18th November, 2020 prescribed by the
MoHFW in respect of spas, which is extracted above. The 6 feet
distance shall be in general maintained between clients and
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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;
ii. In addition, considering th e 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 .
iii. 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.
iv. All service providers shall w ear face shield s and mask s while
providing therapy. For treatment s which are longer tha n thirty
minutes , a PPE kit should also be worn in addition .
v. Clients should preferably we ar masks to the extent possible,
considering the nature of services which are availed of .
vi. All visitors/clients shall sign a declaration form to the effect that
they have not cont racted C ovid-19 and if they have , they have
tested negative. The establishments are permitted to take a written
consent form accepting the risk s that may be involved for
client s/visitors.
vii. Tools including clothing , other apparel , towels etc., used for
clients, shall be sanitised after each and every treatment.
viii. 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.
11. Subject to the above conditions being adhered to by spas, wellness
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clinics and similar establishments, the said establishments are permitted to
be opened.
12. The petition s are allowed in the above terms and all pending
applications are disposed of.

PRATHIBA M. SINGH
JUDGE
JANUARY 14, 2021
dj/T

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