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1988 DIGILAW 430 (CAL)

EAST INDIA CLINIC LTD v. STATE OF WEST BENGAL

1988-12-06

SUSANTA CHATTERJI

body1988
SUSANTA CHATTERJI, J. ( 1 ) THE present writ petition has been filed by the East India Clinic Limited and its acting Administrator challenging the Order, dated 9. 9. 1988 passed by the Respondent No. 2, Referee, Shops and Establishment Directorate, Government of West Bengal. The petitioners have prayed for an appropriate Order of injunction to restrain the respondents from giving effect or further effect to the Memoranda, dated 25. 4. 1988, collectively marked as Annexure "b" to the writ petition. It is stated by the writ petitioners that writ petitioner No. 1 is a company dealing with materials of medical, surgical and pharmaceutical appliances and the provisions of the West Bengal Shops and Establishment Act, 1963 are not applicable, as it is covered by Section 4 (c), of the said Act. Section 4 (c) of the said Act, inter alia, provides that this Act shall not apply to, among others, institutions for the treatment or care of the sick, infirm destitute or mentally unfit. It is stated that the petitioner No. 1 established a nursing home under the name and style of Woodland Nursing Home and the Respondent Nos. 3 to 6 were appointed in the said Nursing Home and were also running the Medical Shop situate within the compound of the Nursing Home. Further, the said Respondent Nos. 3 to 6 made applications before the Authority under the West Bengal Shops and Establishment Act, 1963 under Rule 31 in Form-N for recovery of their wages allegedly and unlawfully deducted from their salaries. Both the parties appeared before the said Authority and submitted notes of argument with copies to each other. ( 2 ) THE Respondent No. 2, Referee, Shops and Establishment by the impugned Order, dated 9. 9. 88, however, requested the parties to place further documents like annual audited accounts and monthly operating report and other supporting documents. Both the parties appeared before the said Authority and submitted notes of argument with copies to each other. ( 2 ) THE Respondent No. 2, Referee, Shops and Establishment by the impugned Order, dated 9. 9. 88, however, requested the parties to place further documents like annual audited accounts and monthly operating report and other supporting documents. ( 3 ) BEING aggrieved by the said Order, the writ petitioners have filed the present petition on the ground that the petitioner No. 1 is an institution for the treatment and care of the sick and infirm destitute and mentally unfit and as such the petitioners do not come within the purview of the provisions of the West Bengal Shops and Establishment Act, 1963 and the Respondent No. 2 does not have any jurisdiction to entertain the application of the Respondent No. 3 to 6 and without considering the points raised by the petitioner No. 1, the Respondent No. 2 has directed production of the documents which are otherwise irrelevant and the direction is unwarranted and uncalled for. ( 4 ) MR. Pal, learned Advocate for the petitioners has made two-fold submissions. First, Respondent No. 2 has certainly not the jurisdiction to entertain the application of the Respondent Nos. 3 to 6, but the said Respondent No. 2 whether has the Authority to consider such application in view of Section 4 (c) of the said Act, 1963 and without deciding the same the said Respondent No. 2 has no jurisdiction to consider the said. application on merits. Secondly, under the. said. Act, no jurisdiction has been conferred upon the Respondent No. 2 to call for records and/or to direct, the parties to produce documents in the manner as passed by the impugned Order. ( 5 ) MRS. Mukherjee, Learned Advocate for the State respondents has submitted that full instructions have not been given to her, but she has however submitted that there is no infirmity in the impugned Order and she supports the action of the Referee, the Respondent No. 2. ( 6 ) PRIVATE Respondent Nos. ( 5 ) MRS. Mukherjee, Learned Advocate for the State respondents has submitted that full instructions have not been given to her, but she has however submitted that there is no infirmity in the impugned Order and she supports the action of the Referee, the Respondent No. 2. ( 6 ) PRIVATE Respondent Nos. 3 to 6 contest the writ petitioner and on their behalf Miss Sengupta, Learned Advocate strongly contested that while the Respondent No. 2, the Referee under the said Act 1963 was in seisin of the matter, the petitioners have abruptly come to this Writ Court and obtained an Order stalling the proceeding before the said Referee pending for effective adjudication there and for providing reliefs to the private Respondents No. 3 to 6. She has further submitted that the matter has not been finally decided by the Referee as yet and no adverse Order has yet been passed against the writ petitioners so that they may feel aggrieved and come to this writ Court for reliefs. ( 7 ) HAVING heard the Learned Advocates for the respective parties and on. considering the materials on record. This Court does and that the only question raised is whether the impugned Order, dated 9. 9. 1988 passed by the Referee, Respondent No. 2 is justified or not. As aforesaid, Respondent No. 2 has by the impugned Order requested the parties to place further documents like Annual Audited Accounts and Monthly Operating Report and other supporting documents. The matter was adjourned till 20th September, 1988. ( 8 ) LOOKING at the Order in its proper perspective, this Court finds that the Referee, Respondent No. 2, before whom the application has been filed by the private Respondent Nos. 3 to 6 under Rule 31 in Form-N of the said Act, 1963 for recovery of wages allegedly and unlawfully deducted from their salaries is vested with the jurisdiction to decide the question as to whether the Act is applicable to the petitioner No. 1 or not. If the Referee, on the materials on record, is satisfied that the petitioner No. 1 is an institution for treatment and/or care of the sick, infirm destitutes or mentally unfit, the petition in question will be found not maintainable. To ascertain the question as such, the parties are required to produce the sufficient materials for effective adjudication. If the Referee, on the materials on record, is satisfied that the petitioner No. 1 is an institution for treatment and/or care of the sick, infirm destitutes or mentally unfit, the petition in question will be found not maintainable. To ascertain the question as such, the parties are required to produce the sufficient materials for effective adjudication. Respondent No. 2 has thus asked the parties to produce the materials and if any party does not produce the materials and/or evidences, the said respondent Referee is entitled to draw adverse inferences for non-production of the documents and law will thus take its own course. Mr. Pal, learned Advocate for petitioners has argued with emphasis that there is no power to direct a party to produce documents, there is no bar and/or impediment to draw inference by asking the parties to produce the documents and if documents are not produced the only question will be whether the documents are going to be against the parties and that is why those are being withheld. ( 9 ) UPON those observations, the writ petition is disposed of directing that the Respondent No. 2 Referee will proceed with the matter in accordance with law and the petitioner Nos. 1 and 2 are at liberty to produce the documents and called for and those, if produced, will be considered accordingly and if not produced, the Authority concerned will be at liberty to draw adverse inference accordingly. ( 10 ) THE writ petition is disposed of accordingly without costs. Interim Order, if any, is vacated. ( 11 ) LEARNED Advocates will be at liberty to take notes from the Order. Petition disposed of.